Jeff_Cumberbatch

The Jefferson Cumberbatch Column – Legal Theory and Practical Realities

Jeff Cumberbatch - Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

Jeff Cumberbatch – Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

It might bear reminder while commenting on the topic at caption, that its origin carries some relevance to Barbados’ Independence, especially as we are in the midst of preparations to celebrate the fiftieth anniversary of its attainment. It should be recalled that this status was achieved as a matter of law by an Order-in-Council of Her Majesty, The Barbados Independence Order, made under the powers vested in her by section 5 of the Barbados Independence Act 1966, an Act of the British parliament, and that our supreme law, the Constitution that principally regulates our system of governance, is no more than part of the Schedule to that Order-in-Council.

From time to time, there have been plaintive calls to repatriate or, more accurately, to “patriate”, the Constitution by an Act of the local legislature. However, given the limited electoral and now, minimal economic, advantage to be gained by this initiative, it is scarcely surprising that no effort has been made in this regard by any of our governing administrations over the past half century. In any event, the notion that our grant of sovereignty might be rescinded by a UK parliamentary repeal of the Barbados Independence Act and, consequently, all the subsidiary legislation that flows from it, including the Barbados Independence Order, is rather far-fetched.

In a celebrated decision of the 1930s, British Coal Corporation v R., the Judicial Committee of the Privy Council was charged with deciding whether the Statute of Westminster that effectively granted independence to Canada by removing any legislative incompetence on its Parliament, permitted Canada to prohibit appeals to the JCPC. In his judgment, while noting that the Parliament of the United Kingdom could, if it wished, repeal all or part of the Statute of Westminster, enabling it to reassert its authority over Canadian affairs at any time, Lord Sankey noted that this was a matter of “theory and has no relation to realities. In truth Canada is in enjoyment of the full scope of self-government.” One should expect that an identical ruling would apply to the local circumstance. I was reminded of these hoary dicta by two items of news during the week just past.

First, there was the issue where the Jamaica government sought to have officials of the University of the West Indies [UWI] appear before the Public Administration and Appropriations Committee [PAAC] of the Jamaica Parliament in accordance with the rules of that body to give an account of its disbursement of funds provided by the Jamaica government and supplied by its taxpayers.

Now, it might be one of the better-kept secrets of regional affairs that UWI is not in strict law the property of, or directly answerable to, any single government of the region. It is equally true that the governments of the region and hence their taxpayers, are collectively responsible or the funding of the University through the appropriate Committee.

The University was established by Royal Charter, an instrument that provides, inter alia, for its mode of governance, obligations and the manner of the resolution of its internal disputes. As the Jamaica Court of Appeal itself recognized in Dr Matt Myrie v UWI in a 2008 judgment, denying the claimant’s application for an injunction to restrain the University from barring him from taking an examination, “the UWI’s Charter having provided for a Visitor, the Visitor is the authority which has the jurisdiction to decide disputes arising under the domestic law of the institution. That jurisdiction is defined in the common law and the courts decline jurisdiction in such circumstances. His application to this Court is therefore inappropriate.”

It may be taken that the University Registrar would have been acting on sound legal advice therefore when he politely refused the request from the Jamaica Parliament on the basis that the University was “a public autonomous regional educational institution which serves seventeen countries in the Caribbean…” Going on to refer to the manner of establishment of the University, he asserted the clear distinction between the University “and other agencies of your Ministry”, citing in support an opinion of the Attorney General’s Chambers.

Nevertheless, he recognized some degree of obligation owed to Jamaica “as a contributing country that is entitled to know how its government’s subventions were utilized” and he recommended that the information sought might be obtained through the auspices of the country representative on the Finance & General Purposes Committee of the University.

So far as the letter of the Registrar is concerned, it is seemingly based on sound legal theory. The UWI is not funded by Jamaica solely, and that state is ably represented on the highest bursarial body of the institution. That representative should have access to the University’s records of receipt and disbursement of funds and is obligated to report to the Cabinet, of which he or she is a part, on these matters concerning the University. At least in theory.

Nonetheless, Lord Sankey’s dicta return to the forefront of the discussion – Does this arguably sound theory accord with the practical reality at a time of economic stringency throughout the region, when University education is increasingly being regarded as a privilege for a limited few only, and when, as the Jamaican authorities contended, the amount of funds allocated to UWI by it exceeds similar disbursements to no fewer than two other ministries?

Moreover, it seems poor politics for the University to get on the wrong side of one of its major contributors at this time. The practical realities therefore demanded that the University should comply with the request, no matter what the strict law required.

Recognizing this, although I am not sure if he was aware of Lord Sankey’s dicta of nearly eighty years ago, Sir Hilary Beckles, the Vice-Chancellor of the University, sought to pour oil on the troubled waters and duly apologized for what he termed the “misunderstanding” and its consequences. In his letter, he rightly asserted the keenness and willingness of the UWI as a regional institution to appear before the PAAC of the Jamaican Parliament and tactfully affirmed “the well established procedure for the UWI Bursar to make such submissions to all governments on behalf of all campuses”.

The second circumstance concerns the news reported in today’s [Saturday] Barbados Advocate that the Antiguan and Barbuda government is giving serious consideration to calling off its proposed and constitutionally required referendum on whether it should accede to the appellate jurisdiction of the Caribbean Court of Justice. This is owed to fears that it may not attain the required two-thirds majority to do so in that plebiscite.

Again, the legal theory is there. As an independent regional jurisdiction, with undisputed sovereignty over its legislative and executive affairs, there would appear to be little justification for Antigua and Barbuda to continue to cede judicial sovereignty and to continue to loiter on the doorsteps of the JCPC, when it has available to it its own regional court to which it is already financially committed.

But it bears reminder that the practical realities of partisan regional politics must be factored into the equation. And few Opposition parties in the region would resist the opportunity to see the governing administration suffer a popular defeat of any kind, even if that defeat inures to the adoption of a clearly irrational and risible position. Partisan politics, it seems, thrives on the tenet that whatever embarrasses the other side is good for us… and for the country. Alas!

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30 Comments on “The Jefferson Cumberbatch Column – Legal Theory and Practical Realities”

  1. chad99999 October 23, 2016 at 7:06 AM #

    What Jeff should have said is that because of the precarious state of our economy, our perilous debt burden, our continuing dependence of the spending of British tourists, and the psychological need in so many of our people to maintain close ties with the British royal family and with Britain itself, it would be exceedingly unwise to patriate the Constitution.

    So we must continue to accept the symbolic humiliation of living in a country where the supreme law of the land, which can be changed only with great difficulty by our own people, is a mere plaything in the hands if our British masters.

    Whip me some more, massa Lord and miss Lady. It feels so good.

    Liked by 1 person

  2. David October 23, 2016 at 7:10 AM #

    @chd99999

    Your comment serves as a reminder. Isn’t there a paradox somewhere in celebrating 50 years of Independence and inviting the Queen’s representative? Wouldn’t this be a good time to signal to Barbadians to live the message being sent by the broken trident.

    Like

  3. Caswell Franklyn October 23, 2016 at 7:31 AM #

    How can you praise Beckles for doing the wrong thing. The countries are supposed to operate within the rule of law. The registrar was only following the law. Beckles should have said that the registrar is correct but since we have nothing to hide, the university would provide access to the information that the Government of Jamaica is seeking.

    Like

  4. Vincent Haynes October 23, 2016 at 7:36 AM #

    David October 23, 2016 at 7:10 AM #

    Wouldn’t this be a good time to signal to Barbadians to live the message being sent by the broken trident.
    …………………………………….

    What is that message…..how has it been exhibited……..has it ever been spelled out?

    Like

  5. David October 23, 2016 at 7:38 AM #

    Sorry Jeff, not following you at all here:

    From time to time, there have been plaintive calls to repatriate or, more accurately, to “patriate”, the Constitution by an Act of the local legislature. However, given the limited electoral and now, minimal economic, advantage to be gained by this initiative, it is scarcely surprising that no effort has been made in this regard by any of our governing administrations over the past half century. In any event, the notion that our grant of sovereignty might be rescinded by a UK parliamentary repeal of the Barbados Independence Act and, consequently, all the subsidiary legislation that flows from it, including the Barbados Independence Order, is rather far-fetched.

    If a country is to pursue true Independence does it not mean the vestiges of a colonial past which remain entangled in our Constitution should be jettisoned as soon as practicable? We have the next generation observing mixed messaging being sent and all.

    As the Trinis are wont to say -how it gine look!

    Like

  6. Jeff Cumberbatch October 23, 2016 at 7:51 AM #

    Chad, you have missed the entire point of the first three paragraphs and perhaps of the entire essay. Our Constitution may be a mere schedule to a UK Act of parliament, but they dare not tinker with it, even though in theory they could, This was Lord Sankey’s point about the gap between theory and practical realities!

    Like

  7. David October 23, 2016 at 7:58 AM #

    @Vincent

    From Primary School level the children are thought what the broken trident is meant to symbolize. However, if they grow up in a society where decisions/actions taken are contrary to the message what will be the result?

    Like

  8. Jeff Cumberbatch October 23, 2016 at 8:00 AM #

    “If a country is to pursue true Independence does it not mean the vestiges of a colonial past which remain entangled in our Constitution should be jettisoned as soon as practicable? We have the next generation observing mixed messaging being sent and all.

    David, at the risk of appearing to take in my own washing, I agree with you entirely. My point is that there may be little political capital to be gained by such action…and there will always be those who will ask to be shown the economic benefit of doing so. Nelson’s statue, 50th anniversary Independence celebrations, Republicanism…the list is endless. We want to be truly independent but not too much…

    Like

  9. Bush Tea October 23, 2016 at 8:06 AM #

    @ Chad& David
    Jeff did not that we should continue the status quo… he said that “it is scarcely surprising that no effort has been made in this regard by any of our governing administrations over the past half century.”

    @ Caswell
    The Law is mostly an ass….
    You would have ‘followed the law and ended up broke…?’\The ultimate law is called Common Sense….
    Sir Cave was right….

    Liked by 1 person

  10. David October 23, 2016 at 8:09 AM #

    @ush Tea

    Had a reread after Jeff’s :-

    David, at the risk of appearing to take in my own washing

    Like

  11. de pedantic Dribbler October 23, 2016 at 8:13 AM #

    David, who cares how it looks…well actually yah right. This millennial generation with all their face-time and selfies are inextricably focused on appearances so let me start over.

    David, looks are irrelevant.

    Since that Act was passed in the British parliament and our Broken Trident branded on our flag has England been able to tell us what to do?

    The parliamentary paper is a beautiful artifact that can be displayed up at our Garrison museum or auctioned for a tidy sum but beyond that there is nothing to be ‘jettisoned’ in my view.

    The obvious corollary to any repeal by a British parliament is 1) a rollicking civil law suit for sizable damages to anything the Brits would seek to reacquire and 2) more importantly as they long gave us independence we would simply pass an Act in our INDEPENDENT HOA formalizing same and dun wid dat; ‘repatriate’ the damn Constitution as Jeff asserted…And then sue them again for all the conniption they would be attempting to connive!

    Jeff does make us think, does he not, of exactly how effed up the society really is at the margins and why we love to hate all this jargoneering so much!

    How does the V. Chancellor through his registrar tell the resident country basically “kiss my grits and get the info from your man on our Board, I respectfully will not accede to your parliamentary committee’s illegal request to question us … oh but wait you do provide our annual subvention actually so ‘smile, smile’ what date is suitable for you guys again!”

    Amusing!

    Like

  12. David October 23, 2016 at 8:30 AM #

    @Dee Word

    At the margin?

    Jeff does make us think, does he not, of exactly how effed up the society really is at the margins and why we love to hate all this jargoneering so much!

    More like the core!

    Amusing you suggest in your musing?

    Not amusing at all!

    Like

  13. Bush Tea October 23, 2016 at 8:32 AM #

    @ David
    Bushie read that…
    That is just Jeff’s “take no personal position’, teacher- persona …where he seeks to present a non-biased, middle-of-the-road stand.
    So while he agrees with your position, he also is open to the alternative position of doing nothing based on the low cost-benefit gains to be had.

    Both sides can claim his support..

    The man was born to teach….. or to be a politician….🙂

    Like

  14. Sargeant October 23, 2016 at 8:41 AM #

    There was a “battle royale’ when Canada patriated its Constitution in 1982, here is some background.

    http://www.thecanadianencyclopedia.ca/en/article/patriation-of-the-constitution/

    Like

  15. Sargeant October 23, 2016 at 8:45 AM #

    If Jamaica is demanding financial accounting from UWI doesn’t that open the floodgates for the other contributing countries to request the same?

    Like

  16. Pachamama October 23, 2016 at 8:59 AM #

    @ Bushie

    Have you not accurately described the quintessential Bajan persona?

    Like

  17. Bush Tea October 23, 2016 at 9:55 AM #

    @ Pacha
    Boss, if you think that you getting Bushie in trouble this bright Sunday morning…
    Think again…

    Like

  18. NorthernObserver October 23, 2016 at 2:02 PM #

    “We want to be truly independent but not too much”….isn’t this the story of life? Does each child leave the home (usually seeking independence) on the same terms?

    Sargeant mentioned Canada, has he looked inside his wallet recently? An effigy of the monarch still adorns most of their currency, both paper and coins. And this nearly 35 years after constitutional patriation.

    The concept of legal theory and practical realities abounds everywhere. Divorce is but one example. A fun little tidbit on a blustery fall day.

    Like

  19. Dompey October 23, 2016 at 2:39 PM #

    NorhernObserver

    listen! is it really possible to attain true Independence and self-reliance? And are we not beholding to others in some form and fashion? Where would America be today without her immigrant population. Where would the Caribbean be today, if Europe and North America had closed the door on schalors like: Errol Barrow Grantley Adams, Michael Manley, Cheddi Jaggan, Eric Williams Maurice Bishop, framers of the vision for the region. In conclusion: it is possible to claim a true
    Independence because remanencce of our colonial past has a continue to defi ne us as a people in the Caribbean. And had it not been for the genocidal colonization of the people of African descent in the Caribbean, would we be talking about independence?

    Like

  20. chad99999 October 23, 2016 at 2:54 PM #

    Jeff

    Pierre Trudeau didn’t mess around. He made absolutely sure that the Canadian Constitution was patriated before he left office.

    I guess he missed your point as well.

    Like

  21. Anonymouse - TheGazer October 23, 2016 at 2:55 PM #

    @Jeff
    @Caswell
    I have to read Jeff statements again to fully understand what he is saying. Thanks for those comments.

    But let me ask this – If the government of the various island cut off funding can UWI survive?

    If the answer is no then all the legal mumbo jumbo (forgive me) does not make sense. Caribbean governments need only squeeze UWI financial balls a few times, before they understand that ‘those who pay the piper call the tune. Sir Hilary Beckles is aware of that fact.

    Also – Now I am not certain what is the position of UWI when it comes to the law of each territory. Are they completely outside of these laws?

    Like

  22. Anonymouse - TheGazer October 23, 2016 at 3:00 PM #

    Now reading DPD contribution on this matter.
    A simple guy, so i like a simple solution.
    Who was more correct Sir HB or the ivory tower guy?

    Like

  23. Anonymouse - TheGazer October 23, 2016 at 3:14 PM #

    Jeff, I am very interested in this topic. Your discussion was too brief for guys like me. I don’t get nuances, please spell them out.

    “Now, it might be one of the better-kept secrets of regional affairs that UWI is not in strict law the property of, or directly answerable to, any single government of the region. It is equally true that the governments of the region and hence their taxpayers, are collectively responsible or the funding of the University through the appropriate Committee.”

    Strict law? Is it or isn’t it. It has to be more than when they feel like it. When is it answerable to any single government?

    “the UWI’s Charter having provided for a Visitor, the Visitor is the authority which has the jurisdiction to decide disputes arising under the domestic law of the institution. That jurisdiction is defined in the common law and the courts decline jurisdiction in such circumstances. His application to this Court is therefore inappropriate.”\

    Who is this Visitor? Is the Visitor outside of the Caribbean? With the independence of these islands, is such a “Visitor'” still meaningful?

    You can telll I am serious for I resisted adding When does this visitor visits?🙂

    Like

  24. NorthernObserver October 23, 2016 at 4:09 PM #

    @chad99999
    and potentially you missed P.E.T’s point too? The French were barking up the separation tree, so advantage was seen in patriation and legally confirming this is OUR land. (Even though the indigenous and First Nations people will argue that). England has nothing to do with us. Any separation sought is a Canadian only decision. (which PET being a federal supporter never wished to face anyways)
    What really changed with patriation? We got a new charter of rights and freedoms entrenched constitutionally ? Otherwise not much.

    Like

  25. Bernard Codrington. October 23, 2016 at 8:08 PM #

    The whole purpose of Jeff’s column is to make us think. I do not think his intention was to make up our minds for us. He is a good teacher in the Socratic mould.

    Did the MoF at one point suggest a forensic audit of how Barbados’ contribution to the UWI was spent?

    Like

  26. David October 23, 2016 at 8:25 PM #

    @Bernard

    Yes he did and it is the reason the government withheld a significant % of the subvention.

    Like

  27. Anonymouse - The Gazer October 24, 2016 at 4:38 PM #

    ——- As one man sees it—–
    Don’t bite the hands that feeds you
    He who pays the piper call the tune
    Ingratitude is a kind of weakness; the clever are never ungrateful.

    I have a great deal of respect for the time others spent in acquiring expertise in their profession. Indeed it is best if one turn to an expert in a subject matter instead of relying on one’s own investigations. But when the lowly fly cannot attract the attention of the great elephant, then he is forced to be an irritant and make the elephant swish its tail.

    I found the recent incident between the Gov. of Jamaica and UWI to be very interesting. Here was one party funding a second party and the recipient of the funds adopting an arrogant and disrespectful attitude, Choosing to hide behind legal jargon and not provide the required information. It is only a fool that bites the hands that feed it.

    One can see his arrogance, his antagonistic posture and his desire for an ensuing legal battle.

    One can understand why it is desirable to have a partition between UWI and the different regional governments. Indeed, having to serve and answer 18 masters would result in conflicts that would tear apart the university and bring it to a standstill as it tries to answer questions form competing authorities . However, this UWI official took what was a commonsense and practical approach to avoiding this problem and turned it into a moment of insanity. He refused to provide the information to the government of Jamaica and chose to hide behind legalese and procedures.

    One can only applaud Sir Hilary Beckles for recognizing the folly of this approach, for his timely intervention, and for a recognizing that an account of how UWI money is spent should be provided to those funding the institution. I remember a Bajan expression “book sense is not commonsense”. It appears that Sir Hilary Beckles possesses both book sense and commonsense.

    Sir Hilary Beckles could have adopted the same position and have the university square off against one of its donors. His good sense porevail.

    My analysis may be all wrong, but in my world, “you never bite the hand that feed you”.
    You kiss their ass instead of telling them to kiss yours.

    I did not seek to give offense and will not take offense at any response. This is a topic that I am very interested in and therefore tried to be provocative.

    Next Up… The Visitor

    Like

  28. Anonymouse - The Gazer October 24, 2016 at 4:41 PM #

    *excuse the typos (Dompey)

    Like

  29. Anonymouse - The Gazer October 24, 2016 at 4:55 PM #

    https://uwiarchives.wordpress.com/2015/04/22/happy-89th-birthday-to-the-visitor/

    “April 21 2016 marks the 90th birthday of the Monarch of the United Kingdom and the Commonwealth, and Visitor of The University of the West Indies, HM Queen Elizabeth II . The University of the West Indies enjoys a special relationship with the British Crown, a bond stipulated in the Royal Charter of the University.

    Article Six (6) of the 1972 Royal Charter provides that Monarch, her heirs and successors, has “Visitorial Authority”, and shall be regarded as Visitor of the University. In exercising this authority, The Monarch, her heirs and successors, can “inspect the University, its buildings, laboratories and general work, equipment and also the examination, teaching and other activities of the University” from time to time.”

    http://jamaica-gleaner.com/article/commentary/20160104/visitor-outdated-ancient-anachronism-oppressive-colonial-past

    The ‘Visitor’: An Outdated, Ancient Anachronism Of The Oppressive Colonial Past

    (say what you like… Google is tool of liberation. It gives the layman immediate access to the inner sanctum. It gives direct access to information and allows us to bypass the filters.)

    Like

  30. Caswell Franklyn October 24, 2016 at 5:44 PM #

    Sir Hillary’s good sense my foot. No one denied the Government of Jamaica any information. It was available to the Government but not in the forum that they were using. You have to be careful when any government chooses to use other than lawful means to get its way.

    Sent from my iPad

    Like

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