Jeff_column

The Jeff Cumberbatch Column – Of Rights, Existing and Imagined…

Jeff Cumberbatch - New Chairman of the FTC

Jeff Cumberbatch – New Chairman of the FTC

I have always been intrigued by the average Barbadian attitude to the assertion of a right or freedom by another individual. Depending on, inter alia, the identity of the individual, the nature of the right claimed and, regrettably, all too frequently, the perceived partisan political colour of that assertion, the proponent is liable either to have his or her claim endorsed; to be sharply reminded that with rights always come overarching responsibilities; or to have the plaint roundly rejected on the basis that it is not compatible with local tradition or current right thinking.

It may be because we are, as a people, not overly familiar with those rights to which we may be entitled. While many are given to err on the precise nature of those fundamental rights expressly guaranteed by the Constitution -as witness the recent erroneous assertion by the Bar Association that among these may be located the right to work, and the quaint belief that the constitutional right to privacy is equivalent in breadth to that in the US which engendered the Supreme Court decision in Roe v Wade, there are equally those who may be unaware that Barbados is a state party to at least two international conventions -the Convention on the Elimination of All forms of Discrimination against Women and the Convention on the Rights of the Child- that include the right to access to safe drinking water and sanitation.

For example, Article 24(2) of the latter Convention provides that States Parties shall…take appropriate measures:

(c) To combat disease and malnutrition…through, inter alia, the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution…

Even so, those rights to which we may be lawfully entitled are not absolute; indeed the catalogue of qualifications to the constitutional rights frequently exceeds the enumeration of those aspects of the right itself.

Likewise, even though there may be a legitimate expectation to the state supply of clean drinking water, regulation 12 of the Barbados Water Authority (Water Services) Regulations 1982 stipulates, “Where (a) there is a deficiency in the source of supply owing to a drought, or to any contingency affecting any supply works or machinery, or to any interruption caused by repairs, accident or other cause; or (b) the Authority or its General Manager considers it expedient to interrupt the supply of water, the Authority may, without notice, reduce or temporarily discontinue the supply of water to all or any particular area.” (sic).

It should be noted that this occurrence neither imposes any liability on the Authority nor affects the liability of an occupier to pay all the proper rates, charges or fees.

Then, sometimes, in an effort to prevent the future claimed existence of a right, those opposed to its assertion will clamour for its prior express denial by the state authorities. I am given to think that this may be the case with some of the local church authorities and the notion of same sex marriage.

To my best knowledge, no individual or body has as yet publicly expressed a desire to contract such a union locally but, ever since the US Supreme Court found by a majority that such a right existed in the due process clause of the US Constitution, the religious sector here has been engaged in a rather quixotic attempt to forestall the likelihood of any identical entitlement being argued to have been located in this jurisdiction.

I do not know to what extent that lobby has taken legal advice on the matter, but this feared eventuality is not at all possible here without substantial legislative intervention. This would become necessary since existing local law precludes both the legal consummation of any such union -thus relegating it to an inherent nullity- and, even prior, negatives the very legality of the ceremony itself, since our common law requires that this be concluded between a man who was born a man and a woman who was born a woman.

In spite of these fundamental barriers to the actuality of a lawful same sex marriage and the unlikelihood of any political party rightly concerned with electoral advantage to propose such, some elements of the church sector continues to tilt at the windmill of same sex unions, while adroitly avoiding the more fundamental issue of accordance with respect for the dignity and private life of the individual of the state criminalizing, but not at all enforcing, homosexual acts between consenting adults in private. I suppose sufficient unto the day is the proscription thereof… enforcement does not seem to matter.

Another issue during the past week that involved a limitation on a fundamental right is the alleged attempt by some to have certain information on a revelatory website criminally proscribed. Of course, this engages the fundamental right of freedom of expression, though in a most topical manner.

It should be by now notorious that the right to freedom of expression may be limited to the extent that the law in question makes provision that is reasonably required for the protection of the reputation of others. The tort of defamation has been for long been accepted as providing one legitimate restriction on this freedom. The question begs asking, however, as to whether the criminalization of defamatory expression is either reasonably required or desirable today.

This issue has provided some interesting developments. In a 2004 decision of the Judicial Committee of Her Majesty’s Privy Council, the Board there observed that criminal defamation was a reasonably justifiable aspect of the law in the democratic society of Grenada, since it was to be found in many other democratic societies “such as England, Canada and Australia…”

Yet, barely five years later in 2009, England itself abolished the concept of criminal libel. Some regional jurisdictions have followed suit, including Grenada (2012); Jamaica (2013); Trinidad & Tobago (2013 –one form only) and Antigua & Barbuda (2015). Barbados, which reformed its defamation law in 1996, has nevertheless retained the offence of criminal libel.

One of the difficulties associated with this offence is that its few regional prosecutions appear to have been largely restricted to those who engage in the defamation of public figures, particularly politicians, and not of the ordinary individual. I am not persuaded that it was intended that the offence should be used in this way in the absence of specific provision as to seditious libel concerning bringing the state or its government into contempt. There already exists the civil remedy of damages that is available to all deserving victims of this wrong.

Happy to relate, however, there has been no recent local prosecution and, given the tide of modern jurisprudential opinion, one seems unlikely anytime soon.

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25 Comments on “The Jeff Cumberbatch Column – Of Rights, Existing and Imagined…”

  1. Well Well & Consequences February 14, 2016 at 7:39 AM #

    Jeff…you got that right. Those looking to institute criminal libel, defamation and slander lawsuits are the very criminals themselves. Having read Philip V. NIcholls’ book on all that pertains within the non-functioning Bar Association, most of which everyone is already familiar with……. and a heavily compromised judiciary, because of the non-functioning Bar Association, the citizens should do their utmost best to stay well away from both until such time that they are fixed by the Chief Justice, whomever he can get to help him and the Courts.

    I may add that the author, through blind loyalty for those who were, deceased and those who are alive, themselves crooks, thieves, con artists…..was instrumental in bringing down most of the misery on himself…..by his very silence and not exposing the whole lot from back then…..let that be a lesson for the lawyers who continue to cover up wrongdoing and crimes against clients perpetrated by their fellow attorneys.

    Many of athe ttorneys mentioned in the book should not be practicing law as their dirty reputations are very well known, all of the names I have called on here are on that list….the Bar Association should not be open to the public unless some semblance of decency integrity and fairness is returned to the institution, therefore, any interpretations of law coming from that office, should be ignored.

    The judges will find it very difficult going forward, unless those institutions are brought in line and those culprits who have for decades destroyed their functioning are made prime examples. It’s sickening that laws and procedures are twisted out of shape because of twisted, out of shape and ugly minds.

    Like

  2. Caswell Franklyn February 14, 2016 at 8:11 AM #

    Jeff

    I was reading an Internet defamation case coming out of Nevis where the claimant failed because he did not prove that the defamation was published in Nevis. Apparently, the server was housed in Canada and that is where the defamation was published. If I understand correctly merely reading the defamatory material in Nevis did not amount to defamation.

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  3. Jeff Cumberbatch February 14, 2016 at 8:17 AM #

    Interesting, Caswell. Please send me a link if possible. I did a paper on the liability of intermediaries for internet defamation last September for the OECS Bar Association. There are some interesting cases in their jurisdictions.

    Like

  4. millertheanunnaki February 14, 2016 at 9:03 AM #

    @ Jeff C:

    “…. there are equally those who may be unaware that Barbados is a state party to at least two international conventions -the Convention on the Elimination of All forms of Discrimination against Women and the Convention on the Rights of the Child- that include the right to access to safe drinking water and sanitation. ”

    I am glad you have made reference to international conventions, especially the one dealing with the rights of the child.
    How binding are these Conventions (once signed) on the Government of Barbados and its agents?
    In other words, can a complainant sue using these conventions for any breach of his or her rights granted under the same conventions?

    Like

  5. Caswell Franklyn February 14, 2016 at 9:14 AM #

    Jeff

    The link is below:

    https://www.eccourts.org/wp-content/uploads/2015/10/Perkins-Judgment.pdf#pdfjs.action=download

    Sent from my iPad

    >

    Like

  6. Jeff Cumberbatch February 14, 2016 at 9:52 AM #

    Thanks, Caswell.

    @Miller, the Conventions are binding on the State as part of its international undertaking…however, under our system of international law, accession to the treaty does not ordinarily give an individual any rights under it unless the State passes a law to that effect. However, there is now an emerging jurisprudence, championed by Justice Wit of the CCJ that accession to certain treaties, especially those that confer human rights, creates an enforceable legitimate expectation in the citizen that those rights will be observed by the State. In other words, yes.

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  7. Well Well & Consequences February 14, 2016 at 10:02 AM #

    Just so typical, government signing on to all these international conventions and treaties re human rights eg rights of the child, but are all hesitant to implement those rights and laws.

    A bunch of little hitlers and child abusers wanting to keep their little hitlers and child abusing status and actions intact.

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  8. Well Well & Consequences February 14, 2016 at 6:35 PM #

    Alvin the Yardfowl……what say you now…lol

    http://www.nationnews.com/nationnews/news/77838/request-medical-weed

    Like

  9. David February 14, 2016 at 8:05 PM #

    And the fight continues against censorship across the globe.

    https://awards.indexoncensorship.org/#2016-longlist

    Like

  10. Bernard Codrington. February 14, 2016 at 8:26 PM #

    Statistically,how many of these countries who sign on to these conventions actually implement them? What happens when there is a clash of culture and values? Did the electorates of these countries vote on these”progressive change in values”.?

    Like

  11. Bernard Codrington. February 14, 2016 at 8:29 PM #

    Is this another form of cultural domination? Outsiders determining what is good for Barbadians?

    Like

  12. millertheanunnaki February 14, 2016 at 8:45 PM #

    @ Bernard Codrington. February 14, 2016 at 8:29 PM

    No one is forcing Barbados to sign onto those conventions. Barbados can do like Saudi Arabia or Iran and tell them to piss off.
    But poor-great Miss Little Missy Barbados wants to look as if she is not only punching above her weight but also the Freest Black country in the World.

    Now you can’t be the freest black nation and still want to violate the rights of the same free people to whom you have sworn to uphold their alienable rights.
    In other words Barbados cannot have its cake and eat it too or run with the hares and hunt with the hounds.

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  13. Bush Tea February 14, 2016 at 8:53 PM #

    Give us a break Miller.
    We sign those conventions because the dim-witted jokers who represent us at these meetings are mostly too focused on shopping and sightseeing to actually read and understand the implications of what they sign….
    Did you not personally commit us to a lotta shiite back in your days in the hive? …Bushie could recall two particular areas of note…

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  14. Well Well & Consequences February 15, 2016 at 6:14 AM #

    Bernard…outside domination can only happen when there are weak black men and women calling themselves leaders, they do not get a pass for being weak….you sign on to the convention…you implement it….they just like the photo op and the pretense of doing something without actually doing it.

    And of course they never seem to read what they sign….eg Maxine McClean signing a tourism agreement with behind Satan’s back Bulgaria or one of those other dirty poor European countries, you are dealing with soft headed, nonsensical, hard headed idiots..lol

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  15. Gabriel February 15, 2016 at 9:00 PM #

    Barbados politicians on the Dems bandwagon encouraging Bajans to go work in China.Watalaff.China?That place threatening to take over the world by offering money but the caveat is you have to use Chink labour.Why do we have an ambassador there?Waste of money that could be used to pay NCC employees sitting at home…..dismissed by that blak piece ‘o garbage Lowedown.

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  16. Alvin Cummins February 15, 2016 at 10:21 PM #

    @Well Well.

    “Alvin the yarifowl What say you now?” Obviously derisive for you end the sentence with Lo.
    My answer:
    I attended a very interesting two day conference last week, sponsored by the Ministry of Labour and Human Resources titled: National Conference On Entrepreneurship and STEM Exploring Areas of Complementarity. There were a number of Entrepreneurs; young and Middle-aged. Among those who contributed was Dr. Henry Lowe, a scientist who specializes in medicinal chemistry, who has contributed approximately 50 years in the fields of science and technology, energy, the environment, wellness and health sciences, nationally regionally, and internationally, since graduating from the University of the West Indies he has earned several recognitions including the Order of Jamaica, and Commander of the Order of Distinction. Here is part of his Bio. , …”Jamaican born, He is a graduate of the University of the West Indies, (BSc Hons), MSc. University of Sydney, PhD University of Manchester, Harvard and MIT (Post Doctoral) He is a scientist who has discovered several bioactive molecules from Jamaican medicinal plants (particularly Jamaican BALL MOSS) which are being developed for Cancer therapy, diabetes and HIV?AIDS. He also assisted in developing the first commercial product from Ganja for the treatment of Glaucoma. HE HAS ALSO ISOLATED OTHER MOLECULES FROM GANJA THAT ARE USED IN THE TREATMENT OF PROSTATE PROBLEMS.
    His academic bone fides are impeccable and his entrepreneurship has enabled him to establish a number of companies around a number of products.
    I have given you this short Bio to establish the foundation for my next statement.
    During the discussion period Dr. Lowe was specifically asked questions about ganja, his research on Ganja, the products isolated from the plants and the legalization of marijuana

    Dr. Lowe pointed out that many medicinally useful molecules can, and have been isolated from the plant. When asked, specifically, he indicated that HE WOULD NOT ADVOCATE SMOKING OF GANJA., because of its adverse psychological effects. And he repeated this when pressed.
    The Ganja plant is no more efficacious in medicinal use than, Senna (from which Senokot, a purgative and laxative is made, Ceresee Bush, used to cure colds and coughs, and other plants from which all sorts of molecules are extracted and used for all sorts of diseases and conditions. In all of these, EXTRACTIONS of molecules are ISOLATED from the plant material and subjected to rigorous testing and identification of their chemical composition, before they become useful clinically. Persons using a plant arbitrarily, have no idea of the concentrations of the different molecules in the plant and their combinations and structures. One thing within the plant may be harmless, but when combined with other components in the plant create a whole different set of problems when converted by the liver, when ingested, the lungs when smoked; (heat changes the structure of compounds in the tissues of the plant), or the brain when different molecules are transported in the blood stream.

    All this talk about “medical marijuana”, and painting it with a broad brush, is an attempt to get around the law. I would listen to Dr. Lowe a hundred times before i would listen to many of the advocates for removing the restriction on the use of Ganja. He said he would NOT ADVOCATE SMOKING GANJA.

    That is my answer. By the way I thought you had no use for Lawyers? How convenient that you would refer me to an article pertaining to Douglas Trotman.

    Douglas has only “APPLIED”, there is no indication that he has been successful in his application. In Canada it is still illegal to openly purchase and smoke ganja. This lady would be arrested quick time if she tried to take Ganja into Canada, whether it was Medical or not.

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  17. Alvin Cummins February 15, 2016 at 10:28 PM #

    @Gabriel,
    Don’t you think we could learn a thing or two from China; the number one country in the world? Don’t you think it would be to our advantage to learn to speak Chinese, so that we can communicaTE WITH A COUNTRY WITH SO MANY BILLIONAIRES? DON’T YOU THINK IT WOULD BE advantageous for us to encourage tourism from a country whose people do so much travelling, and who have a penchant for visiting other countries? Don’t you think that it is advantageous for our young people to learn as much as they can in as many diverse places as they can? Don’t you think we should have an ambassador in any country that would be of benefit to us?

    Where there is no vision…
    But then you are blinded by political bias.

    Like

  18. Alvin Cummins February 15, 2016 at 10:33 PM #

    @Miller,
    I guess the Government should follow your own advice and tell you to “pass off>”

    Like

  19. millertheanunnaki February 15, 2016 at 11:50 PM #

    @ Alvin Cummins February 15, 2016 at 10:33 PM

    How would you like the “Government to tell me to “piss off”? Declare me persona non-grata? There are other places with nice beaches and loads of sunshine too, you know. I am sure they will welcome some foreign currency.

    You are the one that should be telling the Government to P O. Haven’t they let you down badly enough for dropping the Sugar Point Cruise Ship Terminal project despite the assurances given to you that it would have started during 2014 if not in January 2014 as you argued over.
    Everything was in place, according to you. From the engineering drawings to the EIA’s to the Town Hall meetings and even the most important thing the finances.

    Alvin, where has the project disappeared to? Off Pelican Island? Or the same place the Cahill WTE is destined to end up? On the scrap heap after the consultancy fees and finder’s fees have been extracted.
    You must stop backing losers all the time. You are being taken for a ride. No investor will be putting up that sort of money in a poorly managed one-cylinder economy with severe debt problems and no minerals or commodities as tradable collateral.
    Your next stop is Hotel IMF where you will be forced to check in at the loan shark’s front desk but will never leave.

    Like

  20. millertheanunnaki February 16, 2016 at 12:10 AM #

    @ Alvin Cummins February 15, 2016 at 10:28 PM
    “DON’T YOU THINK IT WOULD BE advantageous for us to encourage tourism from a country whose people do so much travelling, and who have a penchant for visiting other countries?”

    Alvin, you know very little of the Chinese tourist or traveler. Barbados has little of interest to well-off Chinese, tourism wise. Chinese are not the ‘sea-and-sand ‘ type tourist looking for a tan, rum and coke, dancing and casual sex with hustlers. They are very much more interested in culture, history and cuisine. That is why Europe especially the UK is so popular with them.

    If there is one place in the Caribbean Chinese tourists would find appealing after travelling so many thousands of miles is Cuba; and possibly Jamaica whose world renown icons like Marley and Bolt resonate with the Chinese who have never heard of Barbados and are far less interested in cricket or Rihanna.

    In the eyes of the very few Chinese who might be aware of Barbados it is just seen as an out-of-the-way trading post but with very high profit margins from cheap inferior goods to keep low-end manufactures in business back home.

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  21. Well Well & Consequences February 16, 2016 at 5:40 AM #

    Alvin…..you are only now regurgitating what I have told you countless times without choking you….they can and do isolate the harmful properties from the ganga plant to render it safe for medical use, I have known this for decades, you needed a professor dude to tell you this in 2016, I did not…again, I said ad nauseum, the plant should not be smoked, but it’s a matter of choice…so now that we have agreed on something……and it took a lawyer’s wife having an aggressive form of cancer for you to come to your senses………..

    Why dont you tell Adriel Brathwaite, AG…to get rid of that jackass for a DPP and give the Chief Justice more help to clean up the supreme court, jail the dirty lawyers who are giving the profession and island a very bad reputation and in so doing return some semblance of integrity and dignity to the government….because I gotta tell you, right now, they got none anywhere and are viewed as jackasses themselves.

    However, the below is a step in the right direction to weed out all those scam artist business people the government love to let into the island, eg Cowan/Cahilll, Del Mastros, etc and others who view Barbados as a criminal’s paradise.

    http://www.nationnews.com/nationnews/news/77927/finger-scans

    Like

  22. Well Well & Consequences February 16, 2016 at 5:44 AM #

    Alvin…ya too greedy, what billionaires what, remember the saying, when you see someone flying high, you don’t know whose wings they are flying with….there is a lot more to Chinese billionaires than meets the eye.

    Learning Chinese can only be a plus for young peop.

    Like

  23. Well Well & Consequences February 16, 2016 at 5:57 AM #

    And of course Alvin, you always miss the whole point…Douglas’ wife is suffering, after your experience you should be able to relate to human suffering, her doctor can refer her to Canada or any country that has implemented the use of medical marijuana, it’s her preference for whaterever reason, financial would be uppermost, to prefer to be treated in Barbados, we both know how cost of living can be in Canada, hence it would be prudent for Douglas to make an application for medical marijuana use where his wife id domiciled….Why did I have to break it down for you Alvin….what does Douglas being a lawyer have to do with it, I know many injured people in Barbados right now who would be helped if Douglas’ application is approved and why shouldn’t it be approved.

    Why should Douglas’ wife take marijuana from Barbados to Canada to use when the criminals are importing marijuana from Canada to Barbados to sell…..you, you, Rabbit….lol

    Like

  24. Alvin Cummins February 16, 2016 at 9:26 AM #

    @Miller.
    You are an idiot, or maybe just senile. It is obvious that you do not keep up with current affairs, and your bias against your own country is so blatant that it chokes you to see, or say anything good about it. Open your eyes.Why do you put Cuba before Barbados? Can’t you see any positive possibilities for the island except through a BLP Government?
    Live on in vain hope. When your party won the election, with OSA as Prime Minister, didn’t you utilize the skills of the Chinese to finish Lloyd Erskine Sanford Centre?
    But Miller, if you went somewhere else to dwell, where would you get the “foreign currency” to give them? Unless of course you have it salted away out of the eyes of BRA? Maybe un the Bras of someone close to you. And if I stopped backing my”losers” the only alternative would be greater losers, like you, so I might as well stay where I AM. A CASE ADJOURNED, IS NOT A CASE DISMISSED, SO IF SUGAR POINT IS ADJOURNED, IT IS NOT FINISHED. BE PATIENT. “IF GREEDY WILL WAIT, HOT WILL COOL.”
    @Well Well,
    I did not know that it was Douglas’s wife. But it makes no difference. We will argue this for a long time because I have looked back at some of my postings and your responses, and your suggestions about legalizing Ganja, was for the wholesale availability of the “weed” for all and sundry; with no distinctions between the medicinal “extracts” and the weed for smoking. That is what creates the zombies.
    By the way, wasn’t the “jackass” of a DPP the same “jackass” when he was DPP under the BLP? Or did he become a “jackass” overnight when the DLP won the elections?.

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  25. Well Well & Consequences February 16, 2016 at 9:41 AM #

    Alvin….the jackass of a DPP was destructive under DBLP and he is now even more destructive under DBLP, he is of no use to the taxpayers who pay his salary..don’t you think it’s the job of DBLP to get rid of him before he embarrasses the island and government any further..

    …….or are ya’ll waiting for the other party to be elected so ya’ll can say how corrupt the DPP is, when ya’ll have the opportunity to remove him now.

    How much more destructive must he get.

    Like

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