BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate.
I have frequently sought to apply the Shakespearean aphorism, “Uneasy lies the head that wears a crown” to the leaders from time to time of the local Opposition parties,
especially given the contrast with the comparatively comfortable tenure of the corresponding Prime Minister who, while not theoretically immune from challenge, holds in in his absolute discretion the power of appointment to, and disappointment from, Cabinet posts and, even more significant, as we have discovered, that of the decision as to when precisely there may be a dissolution of Parliament and an ensuing general election.
The Opposition leader, on the other hand, endures constant scrutiny as to his or her capacity to gain the reins and spoils of government for the party in future and, substantially bereft of the powers of largesse, thereby has a much more precarious hold on leadership.
It struck me during the past week that the same aphorism, for entirely different reasons, might also apply to the individual who holds the honourable portfolio of Attorney General of Barbados. This is because we appear always keen to endorse international treaties, especially those dealing with modern human rights. The faecal matter comes into direct contact with the ventilator [It’s a Sunday paper!] however, when the time comes for enactment of the provisions of those treaties into local law. You see, for all our protestation, the Barbadian concept of human rights is still stuck somewhere in the 19th century or earlier, owing to a heady cocktail of nostalgic superstition and a patent conservatism that does not accommodate, easily or at all, modern Western notions of the rights of the individual to dignity and autonomy.
Given this scenario, the Attorney General, the minister charged with the leadership of state legislative policy, is immediately placed into a situation of “damned if you do, damned if you don’t”. Should that officer remain content to leave our voluntary undertaking in the international context only, to not refer it to the competent authority for relevant legislation, and to be prepared to face the censure of those bodies responsible for the oversight of compliance with the treaty? Or should he or she seek to have the appropriate statute enacted so as to ensure the citizen enjoys the rights guaranteed by the treaty and face, instead, the inevitable protests and possible electoral censure of a vocal citizenry that views any concession to a modern perspective of human rights that does not comport with the prevailing culture as heresy?
On at least two occasions during the past year, this dilemma has eventuated. First, there was the attempt to comply with a ruling of the Inter-American Court of Human Rights [IACHR] that the mandatory death penalty that existed locally was in contravention of the American Convention on Human Rights to which we had acceded, and should be repealed. Of course this initiative did not meet with universal acclaim, although it might have been reasonably thought that the notion of the punishment fitting the crime, against which this principle of mandatoriness clearly offends, would appeal to all fair-minded persons.
Given the mostly negative reception to this measure, the Attorney General must be contemplating with some degree of dread therefore the forthcoming repeal or amendment of section 26, also ordered by the IACHR, and the consequent eventual abolition of the death penalty in order to comply fully with our statal obligations under the American Convention.
Barbados has also voluntarily acceded to, without provocation, the Convention on the Rights of the Child. According to Article 19 of this treaty, “States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child…” [Emphasis added].
Now, unless there is a different meaning of “violence” in some unpublished Barbadian dictionary somewhere, this provision comes into immediate conflict with any practice or law that permits the infliction of pain on an individual, including a child, without his or her consent. Incidentally, the offences of domestic violence and robbery with violence, to name two, both connote that the victims have suffered some degree of pain against their wishes. I am not aware of any concept of violence that depends solely for its definition upon the intention of the perpetrator, although I concede that my vocabulary may be limited in this regard. Further, given the limited power of consent possessed by a child, it would appear that the mere infliction of pain should suffice to satisfy the definition of “violence” in the Convention.
Thus, the Attorney General was acting strictly in accordance with our international obligations when he proposed last week to remove the sanction of corporal punishment from the Juvenile Justice Act. But to quote Paul Keens Douglas, “who tell he do that?” Some, who seem for one reason or another, to “have cocoa in the sun” concerning these matters, immediately foresaw the threat that such an initiative might pose logically to the hoary practice of corporal punishment in some schools and, armed with apposite biblical references, appeals to sympathetic authority and doomsday jeremiads, they treated us once again to postulations as to why any such action would be the worst scourge that officialdom could ever inflict on the Barbadian way of life.
It might speak volumes about the nature of local civilisation that a majority of our people remain so keen to defend a practice that, for all its vaunted effectiveness at shaping discipline and building character, would appear to have failed miserably, given current circumstances.
And the biblical reference scarcely surprises. After all, it appears that throughout history, similar references have been used or abused by various entities to justify almost any obscenity of man’s inhumanity to man –Slavery, the Jim Crow laws, the prohibition of marriage between the races, apartheid, the subordination of women, discrimination, ISIS…That a similar reference might now be found to justify violence against children would thus seem to be par for the course. Happy to relate, our modern legislative existence is not governed by these precepts as interpreted by any given soothsayer.
The truth is that the contrary, though seemingly prevailing view, to the abolition of corporal is based on a combination of nostalgia (in the true sense of that word), arrogance in the belief that it has contributed significantly to making the proponent a superior being and saved him or her from a life of crime or worse, apparently discounting that many criminals would have been treated similarly in their youth, a reluctance to accept its material contribution to the current predilection for violence among our youth, and more than a touch of floutlawry in that having previously adhered to the Convention, we should now seek to excuse our continued contravention of it on the ground of sovereignty.
I am aware that my views on this matter will not resonate with the majority of readers of the Barbados Advocate. That, however, is of no consequence. It would be a boring world indeed if ever there were to be universal agreement on every issue.
PS: As a follow up to last week’s essay, the “Agard Affair”, as I termed it then, appears headed for the courts. Once there, it will raise some intriguing legal issues, among them, the need for the prior exhaustion of available remedies; the susceptibility of a political party to judicial review; the degree of compliance necessary in that context with the rule against bias; and, of course, the consequence of any finding in favour of the claimant. One way or another, it will be a landmark decision in local political life.