“Progress is impossible without change, and those who cannot change their minds cannot change anything.” –George Bernard Shaw
The title of this piece should not, in any way, be taken as a partisan political affirmation. Indeed, the more perceptive reader would have noted the presence of the interrogation mark that converts it into a hypothesis to be tested rather than as one of those questions in Latin, as expertly taught so many years ago by LS Wellington and CQ Williams, that suggests the answer by the use of “nonne” or “num” as the first word of the sentence. In any event, my readers will be familiar with my held thesis that the really effective change that we need is not that of the decennial or otherwise change of the first letters of the acronyms of the major parties, but rather a change in ourselves so as to accomplish our civic responsibility of being useful citizens; in other words, to be responsible stewards of our living environment. In my view, this necessitates the forging of a new political compact between the governors and the governed.
We may adduce some evidence of the nature of this compact from the recent successful and uncontested constitutional challenge by one enlightened citizen, Mr David Commissiong, to the Immigration (Biometrics) Regulations 2015 that purported to empower an immigration functionary to prohibit a Barbadian citizen the freedom to re-enter the country should he or she refuse to be fingerprinted on their return from abroad. According to newspaper reports of the decision, the measure was determined to be null and void, although it was not made clear whether this was on the basis that it was unconstitutional or that the regulations themselves did not comply with the procedural requirements for their creation, another facet of Mr Commissiong’s claim.
As I wrote in this space some weeks ago under the title “A dog’s breakfast”, the prohibition of re-entry was, in my view, a disproportionate response to an otherwise necessary initiative to identify persons in an era when “the traditional methods of identification of persons –by photographs and numbers- have become obsolete; are incapable of preventing identity theft; are susceptible to other fraudulent abuses, and generally inadequate for their intended purpose. I also argued then that in an age of terrorist threat moreover, the existing methods of identifying individuals had clearly become unsustainable” and that, in consequence, many jurisdictions, had sought to modernize their national ID databases from the simple photograph or number to include biometric identifiers, such as fingerprints, iris recognition, voice, gait and even DNA, which would authenticate individual identity and assist in border security and that Barbados was merely acting similarly.
As is usual, in spite of its civic importance, we were not afforded the benefit of a published unofficial summary of the decision as has become par for the course in other jurisdictions. However, given that the press report asserted that the measure was found to be “both (sic) null and void” this betrays an unfamiliarity with legal terminology in general and the use of the legal doublet in particular that is, in effect, one expression where both parts mean the same thing as, for example in “to implore and beseech”; “to have and to hold” and “to aid and abet”, inter alia.
There may be a certain quiddity about the decision however if the measure itself was found to be a procedural nullity; for if so, then there would have been remained no threat by law or other state action to the fundamental right of the Barbadian citizen to freedom of movement and to the absolute injunction that “no person shall be deprived of… the right to enter Barbados”. Indeed, the doctrine of judicial restraint would have mandated a decision on the procedural matter alone. It must be conceded however that there exists a credible rumour that the order was in fact made with the consent of both parties.
Another integral aspect of the new political compact must be the legislative enabling of the citizen’s right of access to official information, or FOI, (freedom of information legislation) as it has been popularly termed. It was heartening to hear the Prime Minister assert at the media luncheon that he hosted last month that this measure had not been taken entirely off the table, although the existing draft bill might yet need some tweaking to become compatible with the local condition. I am not in full agreement with this. I am partial rather to the view that a human or civic right is universal and that while the practical enforcement of that right by the information commissioner may vary from case to case, sometimes depending on existing local culture, the legislative statement of the right itself should nevertheless accord with the minimum global standard if it is to be of any real value.
The concept of the FOI is important, according to the Office of the Australian Information Commissioner, principally because it enhances the transparency of official policy creation, administrative decision-making and the delivery of government services. It is persuasively argued further that “a better informed community is able more effectively to participate in the national democratic process”. These factors are all premised on the notion that government does not really own the information that it has acquired at public expense but that, as with the national purse, it merely holds and manages it as trustees for the principal beneficiaries, the citizenry.
On this analysis, the right of access to official information should be made subject to strictly necessary conditions only such as its release being shown to be undeniably contrary to the public interest.
I propose to continue this column by discussing freedom of expression, the enforceability of manifesto and other political promises, integrity legislation and the climate of anti-intellectualism that seems to pervade these days.
I should wish, however, also to pay tribute to Austin “Tom” Clarke, the Barbadian-Canadian author who shuffled off this mortal coil last week and who seemed, in some of his writings, to have a fascination with legal matters.
From “A Man” in the anthology, “Nine Men Who Laughed” (1986)-
“You don’t have any evidence he told her.” That’s not a prima facie case…”And he allowed the weight of the legal jargon to sink into her incredulity…
He patted his attaché case…took out some of the legal documents he had picked up a few minutes earlier, leafed through them and allowed the rustle of the documents and the jurisprudence in them to give her the heavy significance he wanted her to get…