It should be notorious by now that no freedom is absolute, but that these may be constrained by, inter alia, the extent to which they may impinge on the recognized freedoms of others; by sundry public interests such as health, order, safety, defence or morality, among others; or, of course, to the extent that their exercise is already proscribed by law. Even so, the law requires a balancing of interests in this context, so that except for the last instance, the abridgement of a freedom is subject to the doctrine of proportionality- that such abridgement is “reasonably required” or, as some have put it, “reasonably and demonstrably justified in a free and democratic society”.
In this regard, first, the measure must be rationally connected to the objective sought to be achieved by it, in that it must not be merely arbitrary or based on irrelevant considerations. Second, the means employed to impair the freedom should do so to the minimum extent possible and, third, there must be a justifiable and proportionate relation between the effects of the measure and the achievement of the objective.
In recent days, there has been a plurality of claims, whether wittingly or unwittingly, made by some people that there has been, is, or is likely to be, an unjustifiable curtailment of some freedom to which they are entitled, either by statements made in the public domain or by proposed policy measures. Our present inquiry relates to whether these claims of purported infringement are indeed justifiable or whether they amount simply to illegitimate assertions of licence to do as the claimant pleases, without any let or hindrance whatsoever.
One of these claims that has been asserted relates indirectly to the rather tragic circumstance of the murder in Trinidad & Tobago of a young Japanese visitor to the recent Carnival festivities. Even before a motive for her killing or the exact cause of her death had been determined, the then Mayor of Port-of –Spain, Mr Raymond Tim Kee, opined, in a rather ill-chosen moment, that women specifically had a duty to ensure that they were not abused and proceeded to admonish them generally for their wanton vulgarity and lewdness exhibited during the festival.
It might have been bad enough had he stopped at this general level, even though the connection with the lady’s death was clear, but his Lordship proceeded to pinpoint the subject matter of his soliloquy –“…was there any evidence of resistance? Was it alcohol-controlled and therefore involuntary actions engaged in? It is not that she was hit by a truck, it is a matter that she was jumping up in a costume…”
The popular antipathy to these unfortunate comments eventually led to the Mayor’s resignation last week, a phenomenon that is itself worthy of further analysis in the larger context of limited freedoms being explored here. The more immediate issue, however, is that the Mayor directly challenged the Trinidadian woman’s traditional right to freedom of expression –her right to “play herself” at Carnival.
Given both the geographical and circumstantial context in which Mayor Tim Kee sought to proffer his controversial view, it may be argued in hindsight that he unwisely picked a battle he had to lose. And while it would be witless to contend that the near-nudity of some of the costumes “worn” by females during the festival should unfailingly provoke any man into an act of sexual violence, the more fundamental issue of whether there should be any restriction, other than the law of indecent exposure, on the freedom of the individual female to “play herself’” at carnival time, or whether there should be unlimited licence in this regard, was regrettably lost in the brouhaha.
It is an issue that we ourselves will eventually have to face locally, given the cultural penchant for mimicry. I fear, however, that with our intrinsic reluctance to confront thorny problems, it is one that may survive unresolved for some time yet, never mind those voices occasionally raised in obligatory protest.
Fingerprinting, sensitive personal information, and constitutional freedom
The announcement last week by the Chief Immigration Officer that from April1 there will be the fingerprinting of every person entering and leaving the island, has naturally raised the hackles of those who consider this to be an infringement of liberty, at least in respect of Barbadian citizens, even though none of the objectors I have heard so far has been careful to indicate precisely which freedom might be implicated by this measure of data collection.
Lay opinion might trend towards it being an unjustifiable invasion of privacy, but it should be noted that the express constitutionally guaranteed right to privacy in section 17 of the supreme law is itself substantially limited, both as to content and in the breadth of permitted restrictions.
Of course, there are those who see nothing wrong with the measure. Assistant Commissioner of Police Erwin Boyce sees it as a positive move and “important in responding to criminal threats”. So too do some tourism officials who regard it as an aspect of a changing world and, “given the rise of ISIS and other terrorist groups”, that a jurisdiction should put all measures in place to make sure that it is as safe a destination as possible, although some reservation was expressed as to its potential for further delays of travellers in immigration and customs especially at peak times.
For those who so often bemoan the absence of my personal view, I must state that while the proposal does not immediately offend the constitutional text, there is, nevertheless, the risk of this measure, if not carefully policed (no pun), infringing one or more of the eight fundamental principles of data protection that are held to govern the collection of personal data from individuals.
Among these are Notification of purpose (2) –that the data should be obtained for a specific purpose and should be used for no other purpose; No prolonged retention (5) – that the data must not be kept for no longer than is justifiably necessary; and Portability (8) –that the data subject’s personal information should not be transferred to any country outside of Barbados unless that jurisdiction provides a comparable level of protection for the rights of data subjects in the processing of personal data as obtains locally.
There is one hitch, however. Barbados has no data protection legislation in place, though a cognate Bill was in circulation about ten years ago. This leaves the citizen with little statutory support for objection to the measure currently. Any objection must therefore be based on what is considered to be fair and just.
We are therefore called upon once more to trust to the bona fides and goodwill of the authorities to safeguard what, in nations that “punch above their weight” and are among the freest of their kind, is a basic civic right. I do not get the distinct impression that this trust is in abundant supply.