Senior Law Lecturer Jeff Cumberbatch - article reproduced from the Barbados Advocate - 04 October 2009
Over the past two weeks, this space has been concerned with exploring the phenomenon of local blogging and the susceptibility of contributors to actions for defamation. This is a developing area, and while it is currently accepted that the blogs enjoy no immunity from defamation and are unlikely ever to do so; yet there are some issues that remain in need of clarification if bloggers, blogmasters and those offended by published material are to understand clearly their rights and responsibilities in this regard.
This may assume even more significance in future, if current trends should hold true. In an article published on Monday last in Newsweek online, Daniel Lyons urges the authorities in the US not to bail out struggling newspapers under the contemplated Newspaper Revitalisation Act, but to let them die and get out of the way. He argues; “Nobody in their right mind believes the future of the news business involves paper and ink rather than pixels on a screen…” and he likens the proposed statute to “…introducing legislation to save horse-drawn carriages, or steam engines, or black-and-white TV. It’s stupid. It’s pointless. It won’t work.”
And in another article published on September 23 in The Silicon Valley Insider, Henry Blodget refers to a poll on newsmedia trustworthiness carried out by Sacred Heart University in Connecticut. This informs that nearly 8 out of 10 Americans would oppose any plan to spend tax dollars to aid failing newspapers, a result he attributes in part to “…because they don’t read newspapers anymore and in part because they think online news organisations are actually doing a fine job…”. For now, this is a debate we are not yet having, and it would be a bit of a stretch to describe any of the local blogs as a news organisation, but it is not especially difficult to contemplate a day when news will be mainly read on mobiles or computers rather than on “dead trees”, as print editions are now commonly referred to.
Given my clearly vested interest in this debate, it is one to which this column shall return in future, but it is mentioned at this stage merely to underscore further the importance of our current discussion.
Last week, we discounted the popular misconception that malice is ordinarily required for liability to ensue for defamation under our law. Another such misconception is that the publisher of defamatory material is safe so long as he or she does not refer to anyone by name. In fact, reference to the plaintiff does not depend on the intention of the defendant at all, but on whether the ordinary reader would think that it referred to the defamed individual. In one celebrated case, the court held that readers of a particular newspaper would ignore clear discrepancies of time and place, and justifiably think that the words referred to the plaintiff. Nor, that same case held, was it relevant that a witness who thought the story referred to the plaintiff did not believe it.
From reading a recent blog discussion on the topic, I gained the impression that there is also a popular belief that even if there should be court-ordered disclosure of the IP address of the defamatory publication, the owner of the computer may nevertheless escape liability unless it can be established by the plaintiff that he or she was indeed the publisher.
This point was litigated in a 2008 decision of the English High Court. In June 2007, a false Facebook profile was set up for the plaintiff, containing some private data such as his sexual preferences- “looking for whatever I can get” -, date of birth and political and religious views. Next day, a Facebook group was set up, with a link to the profile, containing material defamatory of the plaintiff. Both of these publications were established using the defendant’s IP address. But he denied being responsible for the publications, alleging that the offending pages must have been set up by someone using his computer without his permission.
The judge rejected this defence. On the evidence, the defendant’s alibi was “utterly implausible from start to finish” and he was held responsible for creation of the defamatory material. It is not, as most lay people seem to believe, a matter of “your-word-against-mine” and therefore there can be no determination of who is telling the truth. As I told a first-year medical students’ class yesterday morning, the court is bound to come to a decision, based on the evidence and its own instincts, as to which party is telling the truth.
One final point of significant interest is the liability of blogmasters for the publication of material considered defamatory. Under section 15 of the local Defamation Act, a defendant who is “not primarily responsible” for the publication of a statement shall not be held liable to any plaintiff defamed thereby unless the plaintiff can first establish that the defendant knew or had reason to believe that the statement was defamatory of him. However, according to the legislation, editors and publishers are primarily responsible for the publication; thus the question arises as to whether, in the local context, the blogmaster is to be treated as an editor or publisher.
For anyone familiar with discussion on the two major blogs, it is clear that those in charge of them exercise editorial responsibility “for the content of the statement or the decision to publish it”, given, especially in one case, the not infrequent assertion that a comment is awaiting moderation. A decision to publish therefore may be legally assumed to be the act of the blogmaster and not solely made by “a person for whose acts the operator is not responsible”.
Jeff Cumberbatch is correct and sounds a valid note of caution. Absence of malice is not a universal cure-all for defamation.
HOWEVER, it is an excellent rule of thumb by that those who are not trained in law and are unwilling or unable to pay for legal opinions on their blog submissions, can apply with reasonable safety.
I mean, just for a moment consider that, as most lawyers in Barbados are wannabe politians with strong party ties, what it would mean for a person who has potentially devastating information of public interest to go and ask for a legal opinion. Would any of you non-lawyers do that?
The matter, however, shifts when it is one of National interest or importance. I am not going to even try to write anything on this, as Wikipedia has done it so well for me. I am surprised, Jeff (given the thrust of your article – the replacement of the traditional Fourth Estate by the Internet) that you have not touched on this and on the the INTER-AMERICAN DECLARATION OF PRINCIPLES ON FREEDOM OF EXPRESSION that comes out of the Organisation of American States and is binding on, among others, the USA – and on Barbados. Have a look at http://www.cidh.oas.org/declaration.htm.
Effectively, it means that, in relation to matters of National interest and importance, Principle 8 sets out that “EVERY SOCIAL COMMUNICATOR HAS THE RIGHT TO KEEP HIS/HER SOURCE OF INFORMATION, NOTES, PERSONAL AND PROFESSIONAL ARCHIVES CONFIDENTIAL.” [Please note that it does not say "Reporter" or "Press"]
So, Jeff, I do think that, absent this information, your article, while correct, is incomplete and might well suggest that matters affecting the Country ought to be withheld from the press and the blogs, as the courts would attempt to overset this international accord – WHICH THEY ARE PROHIBITED IN LAW FROM DOING! I am sure it was not your intention, but that is how what you have said may be applied in practical terms by those readers who do NOT have a legal background.
A lot has been made of the Google decision. However, the FACTS of the case are seldom if ever discussed. merely the outcome. Did the US Supreme Court breach the Inter-American Declaration of Principles on Freedom of Expression?
Certainly NOT. In the Google case, a blog (not blogger) launched a vicious attack on a model, trying to portray her as a slut. This was not of NATIONAL importance or, indeed, of NATIONAL interest – it merely meant that anyone doing a quick internet search on that lady would come across this blog and it might well have adversely affected her livlihood and personal life, neither of which could possibly have been considered of NATIONAL importance. In other words, it was a vicious personal attack.
Would you agree with that, Jeff?
If we do not strictly enforce the Inter-American Declaration of Principles on Freedom of Expression, the value of the blogs is gone – and we might as well just revert (as they hope we will) to our toothless and useless Fourth Estate as it stands right now. AND THIS ERODES AND DEGRADES OUR FREEDOM OF EXPRESSION!!!!
Enough from me. Let us hear from Wikipedia, with which I agree and which I believe ought to be written into the rules of conduct of all blogs. The emphases and square bracket comments are mine.
“The protection of sources, sometimes also referred to as the confidentiality of sources or in the U.S. as the reporter’s privilege, is a right accorded to journalists under the laws of many countries, as well as under international law.
Simply put, it means that the authorities, INCLUDING THE COURTS, cannot compel a journalist to reveal the identity of an anonymous source for a story.
The right is based on a recognition that without a strong guarantee of anonymity, many people would be deterred from coming forward and sharing information of PUBLIC INTEREST with journalists.
As a result, problems such as corruption or crime might go undetected and unchallenged, to the ultimate detriment of society as a whole.
The famous instance of the use of an anonymous source is the series of articles by Washington Post reporters Bob Woodward and Carl Bernstein which uncovered the Watergate Scandal, ultimately leading to the resignation of US President Richard Nixon. Woodward and Bernstein relied extensively on information provided by someone known to the world only under the nickname Deep Throat. Only in 2005 did W. Mark Felt, who at the time had been Associate Director of the US Federal Bureau of Investigation [AND BOUND BY OFFICIAL SECRETS LEGISLATION], reveal that he was “Deep Throat”.
Woodward and Bernstein were not forced to invoke the protection of sources, since the US authorities made no attempt to uncover the identity of “Deep Throat”.
An example of the legal operation of the right is the case of Bart Mos and Joost de Haas, of the Dutch daily De Telegraaf. In an article in January 2006, the two journalists alleged the existence of a leak in the Dutch secret services and quoted from what they claimed was an official dossier on Mink Kok, a notorious criminal. They further alleged that the dossier in question had fallen into the hands of Kok himself. A subsequent police investigation led to the prosecution of Paul H., an agent accused of selling the file in question. Upon motions by the prosecution and the defence, the investigative judge in the case ordered the disclosure of the source for the news story, on the grounds that it was necessary to safeguard national security and ensure a fair trial for H. The two journalists were subsequently detained for refusing to comply with the disclosure order, but were released on appeal after three days, on November 30. The Hague district court considered that the national security interest served by the order was minor and should not prevail over the protection of sources.
Various authorities in international law point to a recognition that a right to protection of sources is implicit in the right to freedom of expression.
In Europe, the European Court of Human Rights stated in the 1996 case of Goodwin v. United Kingdom that “[p]rotection of journalistic sources is one of the basic conditions for press freedom … Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected.”
The Court concluded that absent an “an overriding requirement in the public interest”, an order to disclose sources would violate the guarantee of free expression in Article 10[3] of the European Convention on Human Rights.
In the wake of Goodwin, the Council of Europe’s Committee of Ministers issued a Recommendation to its Member States on how to implement the protection of sources in their domestic legislation. The Organization for Security and Co-operation in Europe has also called on States to respect the right.
In the Americas [THAT INCLUDES BARBADOS], protection of sources has been recognised in the Inter-American Declaration of Principles on Freedom of Expression [http://www.cidh.oas.org/declaration.htm], which states in Principle 8 that “EVERY SOCIAL COMMUNICATOR HAS THE RIGHT TO KEEP HIS/HER SOURCE OF INFORMATION, NOTES, PERSONAL AND PROFESSIONAL ARCHIVES CONFIDENTIAL.”
In Africa, the African Commission on Human and Peoples’ Rights has adopted a Declaration of Principles on Freedom of Expression in Africa which includes a right to protection of sources under Principle XV.”
Check it for yourselves. Here is the source which, in its turn, is fully annotated.
http://en.wikipedia.org/wiki/Protection_of_sources
I am sure you will agree with all this, Jeff – with caveats, of course…but then caveats are part of the legal profession and lawyers generally feel naked without them, which is why in many legal circles, they are referred to as “caveat rumpus”.
This is a discussion which some members of the BU family and commenters on the Internet don’t want to have BUT it is important. In large measure the Internet and blogging continues to unfold. It is important with a general election on the horizon; commenters get up to speed with the moving boundaries which currently exist with using the Internet. If we want the bajan blogosphere to continue to be a vehicle for freedom of expression, we have to take on board OUR responsibility to make it so.
@Jeff
“the court is bound to come to a decision, based on the evidence and its own instincts, as to which party is telling the truth.”
Good one as usual. I think that people miss this point. The court has a duty to come to a decision and it will, according to what is in front of it.
One small challenge to your last assertions on the blogmaster as a publisher. First your reference to “a comment is awaiting moderation” does not properly infer moderation.
In the case of BU the comment may have went to spam because of words or word construction in the comment. There is a spam filter.
I noticed how you cleverly came to the conclusion that a “decision to publish therefore may be legally assumed” with emphasis on “may”.
I think that how the technology works out to be a consideration. A blogmaster who is moderating has a different responsibility to one who is not. With a moderated blog, the blogmaster is definitely the publisher.
One can always tell a moderated blog. Your comment never appears immediately, whereas an unmoderated blog is the opposite.
Can I deduce from your above that is what you were saying when you use the word “may”? Is the blogmaster of the unmoderated blog a publisher in the strictest sense of the word?
@ROK. Glad you have joined in here. You represent BANGO and frankly BU has given you a forum and public profile that you could never have got from the Fourth Estate. A few questions.
1. Do you agree with me that your comments on BU are/were of national interest?
2. If yes, and if you ever receive insider information about the Commission that you believe is important for the public to know, do you believe that you would get a hearing in the Fourth Estate of Barbados?
3. If the answer is NO, would you therefore be content to see BU ILLEGALLY restricted in flagrant disregard of an an international accord by a concern doing business in one of the signatory countries to that accord?
Now, I agree with Jeff’s comments completely. HOWEVER, I do urge Jeff that if he can find another easy buzz phrase that we can more effectively use for those who, unlike us, have NOT studied the law, then please produce it.
Otherwise, would Jeff agree that as a general principle, absense of malice is the best line to follow?
Now, a few months ago, BU carried a blog that advocated teaching basic law in our schools. Are the detractors of that blog still of the same opinion?
With the accessiblity of the Internet and blogs and the tightening of the rules of internet defamation, do you not all think that it is time that our young people learn just what constitutes defamation so that they do not have to resort to the best fix available – absence of malice? So that they KNOW what they can and cannot write?
Jeff, you are an educator whose sole function as an educator is to fit our young for the life of today. Please may we have your considered opinion.
@ROK,
No, the blogmaster of an unmoderated blog would not be a publisher under our law, nor in the US; hence Craiglist’s recent non-liability for the publication of certain discriminatory information on its site. I agree with you.
@Amused,
Of course absence of malice is a good line to follow…though a better one would be not to defame at all! Absence of malice does not in law preclude defamation…but it allows one to use most of the available defences provided their other requirements are satisfied.
Thanks Jeff. I suspect that the BU Family pays a great deal of attention, rightly, to your opinions. And you are a Bajan, so you know as well as I do that a little scandal is as food and drink to a lot of Bajans. Even me, from time time – difference is that you and I are well aware of the instances when it is actionable per se and well capable of avoiding it – and we know what per se means in this context. We also know how to avoid libel. Most do not.
I, for one, would like to hear from you on the subject of the Inter-American Declaration of Principles on Freedom of Expression. I am sure we would all learn a lot. And it does seem to be a very timely issue. I suspect you are far more on the cutting edge of it than most. If you have the time – and the inclination – I think we could all benefit from your insight.
@Amused
“Do you agree with me that your comments on BU are/were of national interest?”
Yes they are.
“If yes, and if you ever receive insider information about the Commission that you believe is important for the public to know, do you believe that you would get a hearing in the Fourth Estate of Barbados?”
Certainly not.
“If the answer is NO, would you therefore be content to see BU ILLEGALLY restricted in flagrant disregard of an international accord by a concern doing business in one of the signatory countries to that accord?”
No… but you say illegally. That is a funny word to use there because it is not taking process into consideration. However, given Jeff’s agreement with my point above, such a restriction may be a reality if BU was moderated. As a matter of fact, if BU was moderated, it would find itself under the same restrictions as the fourth estate in terms of law.
There is a hitch with international conventions, accords, etc. That is the law of the land prevails and if what was agreed to is not part of the law of the land, then the law takes precedence. You would have to take the country to the International Court.
@ Jeff Cumberbatch or any one who knows.
3 people are blogging on BU. 1 in Canada, 1 in Abu Dhabi and 1 in India.
They all write slanderous comments on BU
Who could a victim of the slander sue and under which law and jurisdiction?
@Hants
Under the law in each jurisdiction where the act was committed. All three at one time would not be acrobatics either.
There will only be greater substantial credence and acceptance by many people in Barbados of the concept and practice of judicial independence in Barbados, when it is rationally understood and respected – again by many people – that Court of Appeal and High Court Judges must become elected by the voters of this country to such positions within the Supreme Court of Judicature.
As it stands now the Chief Justice and all other judges of the Supreme Court of Barbados are appointed by the Governor General, by instrument under the Public Seal, on the recommendation of the Prime Minister after consultation with the Leader of the Opposition ( S. 81 SS(1) of the Constitution of Barbados), and may only be removed from office for inability to discharge their functions ( arising from infirmity of body or mind or any other cause) or for misbehaviour – S 84 SS (3, 4, 5) of the Barbados Constitution. This question of the removal, or suspension for that matter – of a Chief Justice and a Judge of the Supreme Court of Judicature of Barbados does involve fairly complicated procedures, however.
Also, of course, a Judge Can resign on his or her own, or be retired under the Constitution of Barbados ( S 84 SS. 1 and 2) once attaining particular ages either by voluntary means, or on refusal by the Governor General ( should be really read as the Prime Minister of Barbados ) to extend the Judge’s contract of service by another two years beyond the age they are normally expected to retire, in which case the latter point is strongly believed to be main reason why the immediate last Chief Justice of Barbados – Sir David Simmons – has vacated that office.
As for Barbados’ Highest Appellate Court – the Caribbean Court of Justice – where as, on one hand, the Chief Justice is appointed by the Heads of Government of participating States in CARICOM on the recommendation of the Regional Judicial and Legal Services Commission and may be removed for cause only on the recommendation of the Commission acting on the advice of a tribunal established for the purpose, on the other hand, the other justices are appointed by the said Regional Judicial and Legal Services Commission ( Google.com)
As can be concluded by the Peoples Democratic Congress (PDC) all Judges of the Supreme Court of Barbados and the Caribbean Court of Justice are politically appointed, ALL bar none, and shall continue to be the case in each instance of judges being appointed in courts in Barbados and any where else, since the method of appointing judges – however archaic – is one that is derived from the very position and role of that of a judge being one position/role that is very politically oriented in nature and derived from the fact there are many serious political relationships existing between the three main branches of government of any political state.
However, the extent of partisan political appointments – which is different from pure political appointments – in Barbados and within CARICOM are or may vary on a case by case basis, or may NOT even appear to be involved, or may NOT be actually involved in some cases.
Thus, some of the real issues involving the appointment of judges in Barbados or any where else become very pertinent and relevant when one understands the many cannibalistic and divisive and corrupt natures of partisan politics in the entire affairs of government and wider society as against the back drop of ensuring that judges – as part of government – are to be as impartial and neutral as possible in their positions/roles, and when deciding cases.
Therefore, what a future PDC Government in Barbados shall do however is to make sure that the concept and practice of judicial independence in so far as this relates to judges of the Supreme Court of Barbados being made to be further insulated from the two other main arms of the government (NOT PHYSICALLY AS SOME MAY READILY THINK ), and in so far as Judges will have a greater foundation upon which to be able to disegard certain political and other powers and influences when exercising their functions or in decising cases, is through such a concept and practice of judicial independence being made to be properly evolved to a higher stage, where by ALL judges of the Supreme Courts shall be elected by voters in Barbados in national elections to such positions both on their own standing as able and experienced legal/judicial practitioners and as independent non-partisan functionaries in the political system; by these judges being able to exercise greater fiscal independence whereby they would become closer ( not necesarily physically )to the budgetary and fiscal process of the state and therefore being greater able to determine what amount of money allocations they must have to help in the proper dispensing of justice in the country; and by these judges – in their roles as members of the Quasi-Cabinet – being made then to be able to formally advise the various arms of the state on points of law or on many jurisprudential matters that might affect the law making process – the legislative process – in Barbados.
Surely, if these fundamental rational aspects were LONG in place in Barbados today Sir David would NEVER have become Chief Justice of Barbados, and therefore the issues that were raised nationally at the time when he had been becoming Chief Justice would NOT have come about then and certainly now certain issues would not have been either re-raised or raised at this time of his demise as Chief Justice of Barbados – NOT withstanding the fact that overall he was in our view the most outstanding and forward thinking Chief Justice in Barbados for the last thirty years or so – and that this kind of ascription no doubt – to some extent – has had to do with his people-centered political background.
PDC
@Hants @ 7:01 pm,
The claimant would sue where the defamatory statement has its most harmful impact…bearing in mind the difficulties of establishing defamation and the importance placed on freedom of speech in that jurisdiction. He is not limited to only those jurisdictions where the act was committed. Remember, there is no defamation until the material is read (published).
@Amused,
International law creates binding obligations only between states. In order for those principles to apply in our courts, legislation to that effect would have to be enacted. Note that they are cast in fairly general language.
@PDC
I am intrigued by your suggestion of popular judicial election. Would campaigning be permitted? Would anyone (or any lawyer) be eligible? And what about removal?
@PDC
I am not sure that your solution is without its disadvantages. Seems to me that a person without legal qualifications could become a judge. Who is to oversee this? Who is to determine what experience a judge should have?
If you do it like how we conduct elections here with a party putting forward candidates, then the persons put forward as candidates will be those to vote for. There will still be no popular choice.
I note that the USA has some kind of election system… but if I am not mistaken, it is the politicians that appoint the highest judicial officers.
The reality of exercising political power is such that you will say so now, but when the time comes and you see the dangers you may never change it.
To: Mr. Jeff Cumberbatch, Mr. King, David and any others,
The following post ( which has been reproduced here – with slight editing done ) was made in response to a number of important questions that were put to us (PDC) by the writer or writers at Barbados Allegiance – which is Barbados’s newest internet blog – concerning many points that were raised on BU by Mr. Cumberbatch and Mr. King with regard to the above PDC post which was originally recently sent to the Barbados Allegiance blog – which the PDC thinks many more intellectually driven and issue focussed commenters should really REALLY VISIT, if they have NOT done so as yet , and make some important contributions to this very important blog.
So, this response has been very properly placed with a view – to some extent – of answering some of the questions raised here on BU by Mr. Cumberbatch and Mr. King. Here we go.
Barbados Allegiance,
A future People’s Democratic Congress Government’s intention to ensure that ALL judges of the Supreme Court of the Judicature are nationally elected – from nominations so provided – to such positions, must be construed by many people in Barbados as NOT ONLY one of our party’s fundamental philosophical positions BUT ALSO as a great cause in the furtherance of the interests of the building of a stronger nation of people in this country.
Such a critically important plank must be seen therefore as being more than the embodiment of a recommendation. Hence, in addition to being a fundamental position of the PDC and a major cause that our party is promoting, the election of ALL judges of the Supreme Court of Judicature must be seen as hugely symbolic and characteristic of the type of democracy this country must become upon the election of a PDC government, and must also be seen as significantly demonstrative and indicative of our bid to greater centralize and elevate judicial affairs in the entire affairs of the country.
Yes, we in the PDC have long carefully thought through and deliberated and concluded on this policy position, and of course from many vantage points except that we have NOT approached any Judges themselves in Barbados on what they think about this policy position itself. However, though, we have properly argued it with a couple of Magistrates and some lawyers in Barbados already.
Yes, under this new dispensation these Judges would have to campaign and at the end of their campaigns the dialectical electoral political process will determine which Judges will be successful or NOT. As stated in the above PDC post ( on Barbdaos Allegiance), such judges will be elected to such positions based on their own standing as able and experienced legal/judicial practitioners and as independent non-partisan functionaries in the political system. Thus, what this will mean is that only lawyers of 15 or more years experience in legal practice, or Magistrates with at least 7 years experience, or judges will contest for High Court positions and only magistrates of 15 years service and Judges of 10 years service will vie for Court of Appeal positions. There will be no set minimum or maximum age barriers to candidates contesting for such posts. And they will run for such positions as independent non partisan candidates ( NO group partisan politics here), with the state paying for their whole electoral campaigns. NO person or groups of persons or entities shall be allowed to donate or contribute funds or gifts to their campaigns. NONE!!
In the final analysis, the Barbadian voters electing judges must have been convinced by these candidates for judicial positions about what they are going to do to further modernize and develop the judiciary and judicial affairs in Barbados, and the how and the where and the when of doing or NOT doing such things, that ultimately then they would have voted for the particular judges of their choice.
And, yes, most of these judges would most likely have to be popular ( issue raised by Barbados Allegiance ) but this would largely relate to the election process and NOT relate to the perceived/professional competence or ability of a judge to properly carry out his or her functions, and even though the level of perceived/professional competence and ability could affect his or her chances of winning or losing an election, it or the lack of it in terms of judicial electoral politics could certainly NOT impact on his actual demonstration of professional competence and ability, since such would be guided by a code of ethical standards for elected judges, guided by his or her knowledge of the law, training in many legal and non-legal courses, the quality of rulings, judgements, sentences, all of which will be subject to appraisal or appeal by complainants, plaintiffs, defendants, and their lawyers, prosecutors, etc.
Furthermore, with respect to these issues that you have raised regarding personality, charisma, and such like, as against ability and whether the former would feature foremost over perceived professional competence and ability, we think that you, Barbados Allegiance, are a tad presupposing us in terms of juxtaposing some of those political behavioural patterns that are seen in electoral politics in Barbados with what we are trying to create for Barbadian judicial affairs in this 21 st century. So, even though we do know that it is Westminster politics, American politics, class politics, local party politics, electoral politics, patron-clientilism, the politics of politcal polling, political finance, media politics, and other types of politics that help to fashion or influence the types of political personalities we see operate in Barbados, there is so little that we in PDC have to go on right now to suggest that the type of judicial electoral politics we desire for Barbados will be one where political personalities seeking elected judicial offices will be fashioned more by the above mentioned kinds of politics and NOT by different kinds and extents of national and international judicial political or power politics.
So, clearly by electing judges a PDC Government will NOT in the slightest way be seeking to the adversely reverse or affect hundreds of years of structures and cultures in which the courts have essentially functioned in this country. We obviously as a serious party want the best possible for the judiciary, and other arms of government in Barbados. That is why we have decided to come up with these kinds of philosophical planks that will help cater for the greater development of the judiciary and judicial affairs in Barbados, to help citizens and other entities in this country realize that there is so much that can possibly be thought of and that can be done to improve judicial affairs in this country. Thus, as a matter of courtesy we finalize this contribution by asking you a number of questions pertaining to some prospects, or lack of prospects (some), for the better, or worse, of a functioning judiciary in Barbados:-
1) Have you, Barbados Allegiance, ever heard about any instances in national elections campaigns that have taken place over the years in this country where there have been any DLP/BLP media led debates or discussions centered on the systematic development of programs and initiatives for making the Judiciary or Judicial affairs more prominent in this country? Do the DLP/BLP media therefore see the judiciary as being so so important in the context of this country’s affairs?
2) Have you, Barbados Allegiance, ever heard of any members of the Judiciary debating or interfacing with members of the public on any matters related to improving the administration of justice in this country?
3) In administrating justice in Barbados, is the general public NOT affected by the decisions/actions of the judiciary? If yes does the public NOT have a right to be more involved in the shaping of the judiciary?
4) Why should the role of Judges in the political legal system be mainly restricted to interpreting and applying legislation that has been enacted? Or to mainly helping develop case law or be restricted to handing down civil judgements and rulings or to sentencing convicted people?
5) Are Judges NOT to be seen as accountable to the public also, or ONLY – elected politicians?
6) Why should many people really NOT know more concerning the personal, moral, political and other issues and perspectives that surround the integrity of judges, but which continue to be substantially hidden from the public, but which ought to be revealed to the public?
7)Why should judges of the Supreme Court in Barbados be made to remain hostage for so long to a Cabinet and Legislature of the country when it is so clear that one day coming soon they will be elected by voters in Barbados in national elections to such positions both on their own standing as able and experienced legal/judicial practitioners and as independent non-partisan functionaries in the political system – thus in some senses bringing them on par with other main arms of government?
8) Cannot Judges – by way of serious and proper changes being done to our constitution – be made to be able to exercise greater fiscal independence whereby they would become closer ( not necessarily physically )to the budgetary and fiscal process of the state, and therefore be greater able to determine what amount of money allocations they must have in order to help in the proper dispensing of justice in the country;
9)And why cannot Judges – again by implementing the right changes to our constitution – be made to be able to formally advise the various branches of the government on points of law or on many jurisprudential matters that might affect the law making process – the legislative process – before laws are actually enacted in this country? ( under a PDC Government ONLY constituents will debate and pass the laws of this country. They will comprise the legislature).
PDC
Inadvertence – in lines 4 and 5 it should have been – ” and concerning many similar points raised ” – AND NOT “concerning many points raised”.
Thank You.
PDC
@PDC
“Are Judges NOT to be seen as accountable to the public…”
Would this not compromise the independence of the judiciary?
@PDC
“And why cannot Judges – again by implementing the right changes to our constitution – be made to be able to formally advise the various branches of the government on points of law or on many jurisprudential matters that might affect the law making process – the legislative process – before laws are actually enacted in this country?”
Don’t you think that the most important function of the Judiciary is its ability to arrive at independent decisions, void of any pressure from any quarter; even the public?
How can you ask judges to advise government and then when the time comes the Judge may have to sit in judgment of his/her own advice?
I am suggesting that you have not thought this through properly. I understand where you are trying to go, but it needs much more thinking through than you doing here.
The next thing is that you are not connecting certain dots. Wish you well with that my brother.
@Hants @ 7:01 pm. Jeff is right.
The question of dismissal of judges has been raised by PDC. Can it be done? Yes, it can. The aparatus is set out in the Constitution. Jeff can correct me here, but I believe that he will confirm that it has to be upon application to the Governor General who then sets up a Royal Commission and that is how it is done. As it comes from the GG, the interdependence and independence of the judiciary is preserved. The Royal Commission reports directly to the GG, who will then advise Her Majesty.
Over the years, I have seen many judges who should have been subjected to this process – many who ought not to have been appointed in the first place. They left mediocre law practices in order to provide the legal profession with a proliferation of successful appeals against their decisions, which decisions were usually reserved for YEARS thus denying the parties justice.
Indeed, there was one such eminent and very successful and popular QC who, after he had retired from the Bench, stated publicly that
that judges in Barbados seemed to think they had a constitutional right to be stupid. I would not go quite that far. However, a large majority of the judges confirm this statement.
I am very unhappy with the indeptitude and delays of the bench and the percentage of appeals the are upheld. I am also very unhappy with the way this Chief Justice has administered the justice system. I have always stated that he had no right to go from Attorney General to CJ. I firmly believe that this set a precedent whereby, not just government, but party politics could be made to influence and compromise the independence of the judiciary. I wish to state categorically, however, that I am not accusing him of such, merely saying that his appointment has without question provided the grounding for the reduction of judicial independence. Very bad move indeed.
I wish to issue a retraction and correction. I said above, “Indeed, there was one such eminent and very successful and popular QC who, after he had retired from the Bench, stated publicly that that judges in Barbados seemed to think they had a constitutional right to be stupid.
I amend that statement to read, “Indeed, there was one eminent and very successful and popular QC who, after he had retired from the Bench, stated publicly that
that judges in Barbados seemed to think they had a constitutional right to be stupid. I would not go quite that far.”
I have removed the word “such”, since by any standards the gentleman to whom I refer would have been a tremendous asset to the Bench of any country.
The precedent set by the former administrations by appointing the outgoing CJ opens the door for the incumbent government to uphold precedent by appointing Attorney General Fruendal Stuart who appears not to be a politician at heart and may want to avoid a hostile electorate next time around. Bear in mind Stuart’s is a marginal seat. This is a BU scenario to demonstrate how politics can enter a place it does not belong.
An observation arising from the announcement of the CJ’s imminent retirement is the acceptance by all (media included) he did a good job, although his appointment was mired in the political, a non sequitar argument in our view.
@PDC
“So, clearly by electing judges a PDC Government will NOT in the slightest way be seeking to the adversely reverse or affect hundreds of years of structures and cultures in which the courts have essentially functioned in this country.”
To be honest, the culture wants overhauling and developing to fit into our cultural peculiarities.
My one concern when it comes to elections is that candidates play to the electorate and it would be a sad day if a judge feels compelled to make a bad decision so as to hold his/her pick.
Now this is not a criticism of what you propose, it is simply a challenge we will have to deal with. For example, a Magistrate on the bench seeking to be elected may want to look good in the public’s eyes.
Having said that, I have to admit that no system is perfect and I am sure that if your party won the Government putting things in place and working with them will bring solutions in the long run.
Let me ask a question though. In reading your contribution, I was looking for tenure of office. Are you proposing that the only change would be to elect the Judges but all other present constitutional provisions would remain with respect to their independence? Well except for the change you highlighted (From GG to PM)?
@jeff cumberbatch
A bit of housekeeping provoked by your article, BU is an unmoderated blog i.e. unless the spammer intervenes because it dislikes a word or hyperlink, comments are routinely published.
@ROK. The Government appoints the CJ based on the advice of the Attorney-General. And frankly, judges are also appointed, effectively by the Attorney General.
I happen to think that Mr Stuart would be an excellent CJ. However, given the conflict of interest issue of an AG promoting his own appointment to CJ, I also hope he is not appointed. We have got to break this trend. If we do not, it will come back to haunt us and that I guarantee.
There is only one senior counsel I think who has the qualifications in all aspects to be CJ. But she has a very successful practice and I sincerely doubt she would be interested. That is Miss Chase Q.C. I also suspect that she will not even be considered. If she was to be appointed, I suspect that a lot a heads at the Registry might roll and I think that judges would clean up their act very quickly, or find that the GG has been asked to invoke the Royal Commission to have them dismissed. But, she has a very good practice and it would mean a serious cut in income.
And did David do a good job as CJ? Not bad, but not good. But the backlog in the courts due to the slowness of judges handing down decisions, even on matters of trite law, is a scandal and has increased under his administration.
@ David @5;52 pm…Good for you!
@ Amused- The procedure for removing a judge is to be found at section 84 (1) – (9) of our Constitution. And believe me, the “slowness” has improved in recent times.
@PDC
“Are Judges NOT to be seen as accountable to the public ….”
Would this not compromise the independence of the judiciary?
“The work of the courts should NOT be outside of the scope of political discussion” – Constitutional and Administrative Law by A. W. Bradley and others.
The PDC fails to see the connection between a future PDC Government making sure that Judges ACCOUNT FOR/ REPORT ON their stewardship to the people via judicial electoral politics, and such a government doing any thing to interfere or meddle in the professional day to day tasks and responsibilities of the Judiciary, as may be suggested by your question. The accountability that we in the PDC talk about relates to making sure that Judges account for their stewardship to the people as one way of getting the people to confide or NOT in their leaderships in between judicial elections or at judicial election time. This accounting will mainly involve telling the people about those matters and issues that, et al, will NOT involve court cases that are or that are likely to come before them; that will NOT adversely affect the doctrine and practice of precedent; that will NOT help bring disfavour upon the hierarchical authority of the courts; those matters that will NOT involve prejudice or the likelihood of prejudice, or the compromising or the likelihood of compromising in the delivery of justice in any way.
But that will involve things like the amount in money and resources expended by the entire court system for given periods of time and the arguing of a case for more money and resources ( and one would shudder to think that the Judicary right now in Barbados which spends much of the people’s money today is NOT capable of saying to them how much much money it had spent during any one financial year, and consequent upon seeking avenues through which to do so); putting forward cases directly to the people ( and NOT just through the media ) for increases in Judges and Magistrates in the Judiciary; enunciating on ways and means of speeding up the delivery of justice ( again not just through the media but directly to the people); and speaking to the creation of public education programs that will inform many Barbadian citizens of many of their current legal rights and responsibilities – such must NOT be left to be coordinated by some sections of the media in Barbados in colloration with attorneys at law – BUT must be seen as entire consistent exercises that are led by the Judiciary itself.
But, before the PDC proceeds further we must state that something really tells us by the reaction of some people to our cause to realize a regime where Judges WILL be elected under a future PDC Government, that this arm of Government called the Judiciary must really be brought by the neck, screeching, into the corpus of 21 st Century political management principles, and thus out of many of the stifling colonial trappings it still finds itself held in by.
Anyhow, with regard to the concept and practice of Judicial independence re the seperation of powers doctrine and practice in Barbados, the fact remains that Judges in Barbados already do NOT have ABSOLUTE TOTAL JUDICIAL INDEPENDENCE as that this concept of JUDICIAL INDEPENDENCE is ONLY so relative to particular instances whereby Judges are or must be seen by many people in Barbados as functionally and institutionally ( NOT TOTALLY ) seperate from the other top functionaries within the other main arms of the government, et al, when they perform their roles, when they have decisions to make away from partisan influences or considerations.
But this seperateness does NOT apply to any NOTION that Judges must be seperated from the people of Barbados who are now so powerless in relationship to the exercise of the powers of government. NOR does its mean or will EVER mean that they must ever be seen as seperate from the people from whose will they derive much of their power – which in a political system like Barbados is impossible to realize. As such, Judges must be made accountable to the people for their stewardship. Certainly, under the old British legal system, it is a told fact that Judges derived much of their power from the Norman Kings – and were therefore acountable to them. Also, a little knowledge of the history of the evolution of the seperation of powers doctine – and in which this concept of judicial independence follows – would show that it was NEVER contructed to prevent government from being acccountable or responsible to the people, but to prevent too much aggregation of powers in hands of a few within government. Hence, for anyone to seek to falsely give the impression that by making Judges accountable to the people of Barbados via judicial electoral politics, would mean that the “independence of the Judiciary” would be compromised, is to seriously profoundly misintrepret or misapply aspects of the doctine of seperation of powers and to wrongly misunderstand what the concept of judicial independence is and what it means.
Moreover, certainly, this notion of judicial independence does NOT and WILL NEVER MEAN that Judges WILL act without being responsible for their own actions and omissions, even in cases whereby they cannot be sued for anything said in the courts, for just as citizens must or are made to abide by laws and standards in given spheres so must they be seen too in given spheres.
That is why under the Constitution of Barbados, even though Judges are appointed by the Governor General, they really and truly serve at the pleasure of the Executive, and they are therefore capable of being disciplined for particular reasons – misbehaviour, inability to perform their functions – as some what set out in the Constitution of Barbados and other relevant laws. Furthermore, Judges can be disciplined – to some extent – by the Judicial and Legal Services Commission – an executive agency – under S. 91 SS (1) and (2) of the Barbados Constitution, if our interpretation of such provisions is correct, and must therfore be seen to be already accountable to this Commission . But, does this mean that inthis regard there is “COMPROMISING ON THE INDEPENDENCE OF THE JUDICIARY”?
Therefore, if Judges are already legally professionally accountable to the Government for some of their actions in the course of their work, why cant they be politically accountable to the people for their stewardship during judicial election time? We wonder if Judges below the Chief Justice do NOT already formally report to him on some of what took place in “their courts” over given periods of time. We shudder to think that that is NOT being done however.
Anyhow, under a seriously reformed Constitution of Barbados – which will take place under a PDC Government – it will be seen that elected Judges will continue to have that right to judicial independence but that that right will NOT be prescribed as absolute – as it is NOT practical already. Such a right will be circumscribed, et al, by the public having a right to know about non-adversial non-contestable matters pertaining to the functioning of the judiciary, as will the public right to know about some of the goings on in other arms of government will also be applied and enforced.
PDC
Don’t you think that the most important function of the Judiciary is its ability to arrive at independent decisions, void of any pressure from any quarter; even the public?
ROK,
We in the PDC have long thought that the three most important functions of the Judiciary – we cant put it down to one – are:
1) to be the ultimate overseers of Barbados Constitution;
2) to interpret enacted legislation – primary or subsidiary – using particular rules of statutory interpetation or particular common law rules of interpretation – like the Ejusdem Generis rule, the Golden rule respectively – and to apply enacted legislation – again primary or subsidiary legislation – using mainly those procedural laws and rules and legal sanctions that are available to the courts;
3) to assist in the development of the common law or case law.
How can you ask judges to advise government and then when the time comes the Judge may have to sit in judgment of his/her own advice?
The creation of this function might ONLY be a formalization of what already often happens behind the scenes or in the open sometimes. Such learned erudite Judges’ counsel must be formally sought out by the various arms of government in a very pro-active pre-emptive progressive logical way. The fact that there are already offices like the Attorney General Solicitor General Offices that legally advise the government, does show that such a function exist already. While we believe that you – Mr. King, would NOT have any problems with this function, we will – we hope – lessen your fears by stating that by expanding this function to include judges will NOT mean that ALL Judges will be rendering this advice, as that only two Judges will do so – even though they will be seen as representing the Judiciary.
Moreover, we strongly desire for ALL major arms of government to avail themselves of ALL the possible legal advice that they can get or that can be rendered to them on points of law or jurisprudence, esp where such relates to the goverance of this country. And there are very important reasons for such – to avoid unnecessary legal wrangling to avoid incurring tremendous legal financial costs involving some courts cases. By having the presence of a Learned and avuncular Judge giving advice up front in such matters might lessen the possibilities of such would be unnnecessary legal wrangling and many would be high costing judicial adventures coming about.
Also, outside of government bodies and offices, there shall – under a PDC Government – be Constituency Assemblies that will debate and pass the laws of this reconstituted legislature – a people’s legislature – which will have the opportunity to have that advice.
Sole responsibility for decisions made will rest with the government offices or bodies or those assemblies getting this advice, and will therefore be the decisions of such offices bodies and assemblies – and recorded as such – AND NOT THOSE OF THE PARTICULAR JUDGES. And such advice will NOT have to accepted by those offices bodies assemblies.
But still with regard to your proposition that Judges may have to sit in judgement of his/her their own advice, a judge that has agreed to render advice on a particular matter, will NOT preside over any parts of that advice in a case where that advice was rendered or followed by that office or body that later becomes part of a dispute to be settled in the Courts. He or she will simply excuse himself or herself.
The truth is that there will hardly be any such cases since NOT only will the Constituents be the sovereign law makers of this country – and by this the intention and will of them will to be followed by the Courts, but also because these judges will be advicing on points of law and jurisprudence ( MAINLY ALREADY EXISTING OR SETTLED) , AND NOT ON GOVERNMENT POLICY AND STRATEGY of whose ultimate responsibility will still be the Cabinet. ( Mind you, ALL ELECTED Judges will be adjunct members of the CABINET)
PDC
Inadvertence – line 4, last paragraph – advising NOT advicing.
PDC
Where the allocation of state partners and funds and resources to be utilized by the Judiciary is concerned, the Chief Justice (also a partner in State Partnership Inc) will submit an earlier agreed to budget to the Minister of Finance, whom shall be a nationally elected, independent non-partisan elected member ( also a partner of State Partnership Inc. ) of the Coalitional Executive Cabinet of Barbados – and whom before the start of incoming financial year shall have the power to require – under a seriously reformed Barbados Constitution- the Chief Justice to submit this agreed to financial budget to help run the Judiciary, and of which he shall so do, and in responding the Minister of Finance shall show to the Chief Justice before the start of the incoming financial year the amount in funds and resources that he will provide to the Judiciary for that incoming financial year as had been agreed to between the Chiefs of the Legislature ( Also a partner in State Partnership Inc), Executive and Judiciary at an earlier planning conference on arriving at agreements as to all the state partners and monies and resources that would be estimated to be utilized for that year by the three main arms of the state.
PDC
@PDC. Underneath the rhetoric there is a great deal of smarts in you. However, this time I completely disagree.
Judges need to not only be indpendent of the executive, but also independent of the people. In my life, I have seen MANY cases that have evoked a strong public sentiment – and the judiciary have ruled in their discretion against public opinion. I say ‘discretion’ because not all law arises out of statutes.
Twenty years down the line – or even ten – sometimes five, in the clear cold light of day and once all the emotions are spent and the issue put into perspective, the public has realised that the judges were correct, not just in the instance in question, but from the point of view of the development of society and law as a whole.
The election of judges in the USA is big business and allows major corporations to contribute to election funding – thus placing the judge under an obligation. And if you respond that you would not allow election funding, I do have to point out that it is not difficult for it to be done without you knowing.
What you are suggesting is completely unworkable, because you are replacing legal skills with those of electioneering, when was is required is legal skills, the overview of which is the advancement of the rights of the individual and of society as a whole.
You cannot ask the electorate to vote on legal skills, because they would not understand them and in any event, it is subjective, which JUSTICE, must NEVER be.
Jeff, I agree that things are faster – but only marginally. The adage is “Justice delayed is justice denied” and, if you accept that, justice is denied far more than it is delivered STILL.
We also have to face the fact that the Woolfe Reforms on which Barbados has been pinning its hopes, have proved unworkable in the UK – but that is just my opinion. My feeling is that we have to go to Canada and look at adopting its system of case management. It is not ideal, but it is better than any other systems around at the moment.
For those non-legal types who are reading this, suppose you bring an action in 2010, you may have to wait until 2012 (or even longer) until it is heard and, as it is a constantly evolving situation, so too are your legal bills.
Then, once you get into Court, you face adjournments and delays and may well end up until 2014 (or 15) with a part-heard case. However, using my scenario, by 2014, the case having finally been heard, you then stand the chance of waiting between 18 months and 2 years before the judge gives a decision – so now we are in 2016 (or 17) on a case you filed in 2010 – and all the time your lawyer’s bills are having to be paid. So, having arrived at your decision, 6 (or 7) years after you filed your case, you then face an appeal process.
So, the losing side files an appeal. However, before that appeal can proceed, the winning side wants its costs, or security for those costs. For that, you have to go before a Justice of Appeal who decides that those security for costs should amount to. In practical terms, if you, in 6 years, have spent $300,000 in legal costs, you will likely be awarded $175,000 x 2 and before the appeal can proceed, the appellant will have to deposit that money in form of cash or securities with the courts, NOT WITH YOU.
So, by this time, we are 2016 plus maybe an additional 6 months. And the matter has not been heard, so you will probably have to wait another year before it is set down by the Court of Appeal. So you are now 7 1/2 (call it 8)years later.
But the appeal is heard and you can just sit tight and wait another year for a decision.
So, by this time, you are in 2019 and still paying your lawyer’s fees, which you will get back a portion of if you win -EVENTUALLY.
And suppose you DO win. There is the final court of appeal, the CCJ. And there you are looking at another year or two.
So, finally, 10 (or more) years after it all started, the case is decided and appeals are exhausted (or the other way round) and so are you – physically, mentally, emotionally, FINANCIALLY.
Is it over? No fear. Hearings for costs and, where applicable, damages. Another 2 years at least. With you still paying legal costs. And there might eb appeals there as well.
While I agree with Jeff that it has got faster than before, I don’t consider that to be any sort of excuse or exculpation for the sloth of the judicial process in Barbados. It has got better!! Better than what? Has it erradicated the injustice that the delay has caused, or merely made it marginally less?
Also, Jeff, in the good old days counsel only charged fees at the conclusion of the case – with older counsel, this is still the way they do it. With the younger lot, the client gets their bill every month and, in their defense, counsel has to pay their own bills as well, so this is not unjust.
So, with respect, no good saying that it has got better, it is still UNJUST and NOT GOOD ENOUGH.
The solution is a Chief Justice who will erradicate the delaying tactics so beloved of counsel whose clients (they know) do not have a case and kick the hell off the bench judges who cannot (or will not) deliver a decision in 90 days maximum and replace them with those that can and will. In other words, start to invoke section 84 (1) – (9) of our Constitution.
The public deserves value for money – and THEY ARE NOT GETTING IT!!!
@Amused
Interesting insight into a situation which Barbadians have come to accept. The legal system has held the Barbadian consumer in a headlock for sometime. The irony is our lawmakers are comprised of lawyers. Why would they want to change the current system which sees them milking the public (cash cow) for years to come thus assuring their financial future. The question for you Amused, how do we break the cycle?
What would speed the Court process:
(1) Wasted cost: More orders made.
(2) Pruning of prosecutions only prosecutions with a more than 50% chance of success should be taken to court.
(3) Adjournments: Should only be given when there is no “reasonable” alternative and court papers should be so marked. There should not be an automatic expectation of an adjournment except in the obvious cases.
(4) Close monitoring of the time taken by respective Judges to write up their decisions.
It maybe coincidental but the front page of today’s newspaper seems to mesh with concerns regarding political involvement in the judiciary. It seems outgoing CJ David Simmons is the first incumbent who has not had his tenure extended.
Perhaps the reason CJ Simmons finds himself in this situation maybe how his appointment was don.
I don’t agree with jeff cumberbatch and andrew pilgrim, leslie haynes and the others with all this public adoration of david simmons as ‘the most this and the best that’ – as it relates to his functioning as chief justice.
Look the only way a simple member of john public like me can judge David simmons’ tenure is by asking: As head of the judiciary has he made getting justice any easier for us the average folk, and ensured transparency in the operations of the judicary?
The answer has to be NO.
David simmons understood only too well that the majority of barbadians were not pleased with the departure from tradition of mixing up the exceutive and the judiciary or bringing active politicians to sit on the bench as judges.
He therefore was intent on treading carefully and giving the appearance of fairness.
However to my mind he brought no special skills or expertise or deep intellect that would warrant all this high praise we are seeing in the nation newspaper.
To my mind the Nation is again seeking to stir up trouble against the DLP and this matter should not be on the pages of the newspaper every Sunday.
Just like what they are doing with the Al Barack matter.
Cor blimmuh.
The Nation editorial team behaving like political activists now man.
@mash up
With respect to Jeff and many of his colleagues, BU expects there would be a professional obligation spurred by ethical consideration to see the legal process improved in Barbados. On the flip side the current system is one which fattens many who operate within the system i.e. they don’t feel the pinch of the shoe. Where do we go from here?
David
I agree with you about the alarm surrounding the appointment of Simmons. After all he was a leading member of the BLP for many years and held senior positions in the Cabinet. While we can accept the political leanings of some jurists it is unpalatable for many of us for someone to be Attorney General one day and Chief justice the next without even a “cooling off” period. If Thompson tries that with Stuart as has been suggested he would come in for a whole heap of criticism from this quarter and I suspect others.
As to the policy of refusing favours requested by Judges, why should an extension be automatic? The PM may think it is time for some new blood and after all he is the PM and that is his right. PMs also routine refuse requests by other Judges, didn’t Sleepy Smith say that Arthur refused to grant him the opportunity to purchase a vehicle (which he had been using) and a request which was routinely honoured simply because he was a associated with the DLP?
If you live by the sword don’t expect o die in bed.
David
I feel the same way we are lobbying hard for Integrity legislation and Freedom of Information laws,then we should also be lobbying hard for some of the suggestions put forward by Amused.
Lawyers who seek adjournment after adjournment to the detriment of the client should not then be able to benefit from the unjust act by charging the clients during that time.
Simple.
There should be a minimum amount of time before a case is heard and a set time EXCEPT for unusual or mitigating circumstances for that case to finish.
Members of the public should be allowed to (with some major exceptions),be allowed to present their own case and eveidence before a judge or magistrate,because lemme tell yuh some of these new fangled lawyers real,real dumpsey – they can’t write nor they can’t speak nor plead a case properly.
Enough of that.
I find it passing strange that all of a sudden these BLP lawyers like leslie haynes and henry forde and the BLP rag – the Nation newspaper – all blowing their hornpipes about the selection of Judges.
Where were they when arthur select about 15 or more of them along with his A.G. to the Judges bench during his (arthur’s) tenure as prime minister from 1994 – 2208?
All who talking now said not a word.
But it seems like once the DLP in office, it is different strokes for different folks.
Thompson and his government entered on a platform of creating change. If we look at the magistrates court and see how traffic issues continue to be dealt with we know nothing has changed. We continue to have individuals with multiple convections stuck in the system, the PSV sector is a major offender. What about domestic matters and the side issue of child support? Nothing has changed? What about the DPP office where files go missing routinely with no public accountability that we are aware of. What about the influence of the fraternities and other buddy systems affecting decision making within the court system?
The Attorney General in the person of Stuart and by extension government needs to make a mark on the problem of an arcane legal system. A new building will not cut it and the DLP can’t take credit for it anyway. It is one reason BU has not become stuck on FOI and Integrity legislation. It makes no sense focussing on these issues as standalone if we are not able to attack some of the structural problems which would frustrate the implementation of FOI and Integrity legislation.
So David are you agreeing with Mash Up?
How could the PM extend the tenure of a CJ whose appointment was opposed by the said PM?
If you couldn’t find 5 Lawyers who are each good enough to replace the CJ then Barbados would be in trouble.
With regards to the time it takes for matters to be processed through the legal system is that it is likely to continue.
There appears to be no incentive for Lawyers to change things. Clients have to pay the legal fees and if the client dies the estate will pay.
Waiting for clients to die could be a profit center for Lawyers but I could be dead wrong.
On another issue.
I read two columns in the Nationnews today. Pudding and souse and Flying Fish and Cou Cou.
I would be interested to hear from Jeff Cumberbatch or Amused if that style of writing protects the Nationnews from being sued.
My point is that they do not name anyone but they provide enough information for some people to identify the subjects.
I am interested, in that this style of writing may be a way for bloggers to “protect themselves.
For example, I could write that a couple years ago one of two law professors wrote a “tribute” to a person who was a paragon of virtue to his friends and I hope to thank said professor in person next time I come in from the cold.
There are enough clues to identify this blogger as one of few possibilities.
The Professors will be able to figure out who I could be so to protect the good character of the others, I will be the bigger man.
Credits to Pudding and souse and Flying Fish and Cou Cou for my use of their “style “of writing.
@mash up
Definitely looks like we are on all fours on this matter.
Slice and dice it any way you want, forget the words of praise for Sir David by the Bar – he is going and therefore they will say that he is and was wonderful and he will be put out to grass, full of honours and with an enormous collective sigh of relief. If he were not going, it would be completely different.
It is a well known in legal circles that if Sir David’s tenure was extended, he would be facing open rebellion by senior members of the Bar and, not just would he be the first CJ not to have his tenure extended, he would also be the first judge to have that Royal Commission invoked against him. There is no secret (except from the public) that if he does not go now, that is what will happen.
@David, the answer is not simple. I do think, however, that the Canadian system of case management is probably the best solution for now.
As for Jeff saying that there is no politics involved, well he has obviously been too busy most of his professional life to wake up and smell the cawfee. Jeff, if this is true that you said this, I am disappointed. Very disappointed.
Henry is right in what he says about selection of judges. Bunny (Leslie Haynes) while a reasonable and competent attorney, is not in Henry’s league at all – few are, but Bunny is politically extremely savy and knows how to pick which side to support and how to time that support to perfection.
Leslie Haynes is another example of how playing politics and straddling the fence can reap rewards. Haynes as a young lawyer cut his teeth in the Mottley Chambers; Elliot Mottley, Mia et al. On the flip side he is closely associated with Clico and Leroy Parris and by extension that means he must have been hob nobbin with Thompson all those years while he was in opposition.
When will the people win?
Jeff is entitled to his opinion but he has to understand people like himself need to help the people to break though this profession which continues to apply a full nelson on the people.
@David. Exactly. We are on the SAME page, you and I. I would never have said a damned thing, if it had not been for the stupid, self-serving whitewash from members of the Bar. All they had to do was say NOTHING!!! AND MAKE SURE THEY TAKE STEPS TO ENSURE IT NEVER HAPPENS AGAIN!!! But when they try to lie to the people of the country and thereby set the stage for the same damned thing to happen all over again with some QC who says that HE will prosecute a political party when HE becomes CJ, I will use every means at my disposal to ensure the history does NOT repeat itself.
In fairness to David Thompson, we have to see what he will do and I am not prepared to prejudge him. He is himself a fine lawyer and a very smart man. I believe that he will ensure that the new CJ gives the us value for money and cleans up the mess she/he will inherit.
You know, we all deserve a lot better and it is high time we demanded it.
@ Hants // January 10, 2010 at 2:11 PM “… My point is that they do not name anyone but they provide enough information for some people to identify the subjects.
… this style of writing may be a way for bloggers to “protect themselves…. ”
Sounds do-able; but will it work. Is it that easy. Only time will tell
Randall Worrel or Christopher Birch fah CJ…!
@BAFBFP
I understand Randall is not yet ready. Too long to render decisions. Not on the bench long enough. Needs more experience in some areas of jurisprudence.
@Pat. Agreed. As for Birch, not right for the job. Fact is at th moment, the ladies have it in terms of suitability and I do NOT mean Sandra Mason. If you cannot run and control the Registry, you cannot run and control the Courts.
“And if you respond that you would not allow election funding, I do have to point out that it is not difficult for it to done without you knowing” -Comment by Amused, January 10, 2010, at 10. 56 am.
Amused,
Juducial elections and election campaigns of judicial candidates will be entirely funded by the state. Any allegations of non-state spending or receipt of gifts from the time a Judicial candidate has formally publicly declared their intention to be a judicial candidate leading right up to the end of the campaign, et al, will be investigated by a tribunal so set up at national election time by the state, and once such a Judicial candidate has been found guilty of such breaches of judicial electoral law, he/she will have his campaign stopped by the tribunal if he is convicted before the campaign ends, and will be appropriately punished. Whereby an Elected Judge has been found guilty of any of the above kinds of electoral breaches he too will be punished by being subjected to an election recall, among other punishments.
“What you are suggesting is completely unworkable, because you are replacing legal skills with those of electioneering, when was is required is legal skills…” – Comment by Amused, January 10, at 10.56 am.
What we are going to be putting in place will work make no doubt about it. When we achieve governmental office in this country the election of Judges will happen in this country. And will happen primarily because those who strongly believe and have faith and confidence in this type of regime – and there are so many people at the ground level in Barbados who are already doing so – will do whatever is reasonably possible to make sure that this comes about.
However, we believe that you have contructed a false and specious argument some where there about – about replacing legal skills with electioneering. What do legal skills have to do with THE ACTUAL METHOD OF ELECTING Judges to office. Right now, does the Governor General need legal skills to appoint a judge?
Any how, in judicial elections in Barbados all judicial candidates would have had to have more that fifteen years
experience of gathering or acquiring practical legal skills and acquiring better knowledges of the law, as a result of PDC’s cause being to make sure that only lawyers of 15 or more years experience in legal practice, or Magistrates with at least 7 years experience, or judges, will contest for High Court positions and only magistrates of 15 years service and Judges of 10 years service will vie for Court of Appeal positions.
So, there you have it, Amused.
PDC
@David // January 10, 2010 at 1:17 PM. The point about FOI is well made and I agree 100% with you. However, as pointed out before, that legislation is extremely complex and requires an entire new government department within the Attorney General’s ministry to apply and police it.
Before the last election, I listened to the politicians, the lawyers and your erstwhile colleagues at BFP spout about it. “I believe you, Mr. Thompson”, trumpeted Keltruth. And I have no doubt that both political parties thought it was a quick fix – as did the lawyers and all the rest of the pundits.
Only in the cold light of day and having considered practical application, do they realise that it is anything but a quick fix.
Personally, I will be very surprised if FOI is fully functional during this terms of office. I think it will run into the second term (if Mr Thompson gets a second term). AND I think we have to accept that as being realistic and give him and his government the space to formulate and implement properly. Trust me, a half-assed job will be infinitely more dangerous than not having FOI at all.
So, Keltruth was right to believe – but it is going to take longer.
What I don’t understand is why the government is not simply telling the public exactly what is entailed and the difficulties that I know that they have to be experiencing. Surely that would be far better (and more honest and transparent) than just keeping quiet.
I don’t understand why one wishes to educate the Bajan public to the standard to which it is educated and then not give them any credit for being able to understand.
I am also dismayed that Jeff points out that absense of malice does not provide a complete protection against defamation – well, Jeff, no one said it did. It was a useful rule of thumb – rather like an inoculation against flu that will protect you to a certain extent, but not 100% – but the impression given was that it offered NO protection. Then Amused cross-examines and what do we get? It will make available most of the defenses to an action for defamation. So why the hell not say that in the first place?
To much energy expended in not being frank and transparent. Just tell the truth!!! Give the public the credit for being able to understand that they deserve. It is extremely insulting and offensive otherwise. In these days of the Internet when large amounts of information can be sent with the flick of a mouse, it is just stupid.
Alright…
Jeff Cumberbatch or Burgess fah CJ
The ideal candidate for CJ would be a Competent 50 to 55 year old Judge or lawyer who is not a card carrying member of a political party.
@Hants // January 11, 2010 at 12:10 PM . You know one? Me pass – me no know none. Thing is that it doesn’t matter if the CJ was a member or supporter of any political party. What matters is that EQUAL first, she/he should be a good administrator AND a first class jurist. You may argue that you cannot be a first class jurist without being a scholar, but out of caution, I put down that she/he has to be a first class scholar. Next, they must not be afraid to take on (a) the Registry and, if necessary, fire some people and (b) the executive and tell the politicians to go to hell. Probably as important as the administration and the scholorship is the willingness to engage counsel and make them toe the line – and to engage judges and insist on timely decisions or she/he will fire their sorry asses.
Of the current crop, all the really competent ones are too old, except – and I have to agree – for Miss Chase. Miss Chase would be my choice – except I agree that she ain’t a gonna do it. Or at least I doubt she will do it. Pity. The fur would fly and the people of Barbados would finally get value for their money.
@Amused
You put the following to Jeff Cumberbatch:
Jeff Cumberbatch responded:
It seems to us that this is a matter which needs closure.
@David,
The question which needs to be answered is whether or not existing legislation will uphold all (or the relevant) provisions of the INTER-AMERICAN DECLARATION OF PRINCIPLES ON FREEDOM OF EXPRESSION.
Awright.. de next CJ should be imported… from England!
@David. Let us pick a country with a long history of rule of law to illustrate the point. Let us pick the country whose common law (generally) subsists in the English-speaking world. The laws of England and Wales. Can we agree there?
Okay. England and Wales are part of the European Community. The European Community is made up of countries most of whom operate under Roman Law (which is best known for the presumption that you are guilty until proven innocent and other such things that we would find unacceptable).
When the member states get together and sign an accord, although the legislation of England and Wales may not meet the provisons of that accord, the courts in England and Wales will take it into account. BECAUSE, if they do not, then the Judicial Committee of the House of Lords is no longer the final court of appeal. It is the European Court of Justice and they will hand down a decision in accordance with the accord in question that will act as a precedent in the courts of England and Wales and thus enforce the accord over the laws of England and Wales. IT HAS HAPPENED MANY TIMES.
Indeed, Cherie Booth Q.C., better known to the world as Mrs Tony Blair, has appeared before them many times while her husband was in office in matters of employment law in an adverse position to the prevailing legislation in England and Wales. Read the Times Law Reports, all you members of the legal fraternity – you do not have far to go – they are available at the library of the Supreme Court of Barbados.
The same is true of us and our accords with fellow members of the OAS and other treaty organisations to which we are signatories.
However, the basic truth is that for us not to follow a worldwide trend that ensures and promotes such a basic human right as freedom of expression, would be completely retrograde to our economy in terms of investments, tourism….the lot.
One of the reasons investors come to Barbados is because since the 1630s we have a strong system of government and institutions that has NEVER been taken over. In our own recent experience we saw Sandiford go to a no confidence vote – he did not try to cling to power or to mobilize the military in a coup. He went quietly, with dignity and in accordance with law and the Constitution the moment Dame Nita, acting on her own authority as GG, dissolved parliament.
Owen Arthur, for all his dictatorial and quasi-royal attitudes, never for a moment tried to flout the Constitution – he was voted out – and he went with dignity.
As has, correctly, been pointed out, the American Declaration of Independence has whole chunks of it lifted from its predecessor by 100 years and more – the Barbados Treaty of Austins (now Oistins).
In the Western Hemisphere, we ARE the cradle of democracy and freedom. It started HERE, in relation to the West. Not the States, not Canada, not South America or any of the other West Indian islands. It started in BARBADOS.
So what message do you think it will send if we flout an international accord the terms of which are generally being adopted, if not always applied, worldwide?
There are courts for these things. Currently, Barbados is being sued by a private individual under a Barbados/Canada bi-lateral trade agreement. The individual, a Barbados resident, is Peter Allard, a Canadian national. I am not going to discuss the merits of that case here. What I am going to point out is that you can be sure that the international community and big businesses and investors have noted that Mr Allard continues his residency in Barbados, secure in the historic knowledge of Barbados’ rule of law, without threat or attempt of threat to his person or assets.
I go further, if Mr Donald Best (sole officer of Nelson Barbados Group Ltd)decided to foresake the joys of Asia and his Asian partner, where he has, incidentally, lived for some years PREDATING by some years his accusation that he was forced to move there in the last weeks, he too would find his rights and freedoms protected.
There are many Barbadians who, without fuss and fanfare, exert tremendous influence to ensure that Barbados remains the crade of freedom of the Western Hemisphere. They are the silent, but overpowering, majority that no wannabe politician and no court can afford to ignore.
@ Amused,
The comparison of England’s enforcement of European Community Law and a requirement for us to enforce international law is not apposite. As I said before, under our dualist system, we are not required to enforce international law until a statute to the same effect has been enacted locally. England, on the other hand, is part of a Community which has agreed to enforce the directives etc. of the European Parliament. Much as we would be if CARICOM issued legislation.
Note too, that it was Mr Sandiford who advised the dissolution of Parliament in 1994 and that Dame Nita did not do so of her own volition.
Finally, even though we like to think so, the American Declaration of Independence did not in fact copy the Treaty of Oistins but, instead, sourced most of its provisions from the Magna Carta, which similarly influenced the local Treaty.
In what way is the Democratic Labour Party is delivering on its commitment to the people of Barbados as outlines in our Manifesto “Pathways to Progress?”
Has it implemented its 90 and 100 day promises?
With over 5,000 losing their jobs since 2008 and with prices increasing by more than 12% locally, while at the very same time – commodity prices on the world market came down and given the fiscal crisis created by the DLP where current expenditure is exceeding curent revenue (cash-flow crisis) how could Barbados be on a “Pathway to Progress?”