HTML last revised 14th June, 2004.I would like to express my appreciation of the efforts made by the School of Continuing Studies in establishing a Country Conference Series focused on the non-campus countries of the University of the West Indies system. As I understand it, the programme Beyond Walls: Multi-Disciplinary Perspectives is geared to stimulate both potential researchers and the general population to delve into and engage in public discourse on matters relevant to local development.
I am impressed with your coverage of personalities who have helped to fashion our regional communities, your attention to the reintegration of our bloodlines as well as with your focus on health, our disciplinary forces, the youth and the aged.
That approach is particularly welcome to me, as, over the years, I have formed the view that while our early attention to specialization within the narrow confines of a chosen discipline may advance the frontiers of knowledge in that particular field, it robs us of the fish-eyed vision of our societies as a whole and real appreciation of the day to day realities of life beyond the walls of academia and which haunt the average citizen.
I have no doubt that whispers of woe do touch our consciousness or that we hear the cries of social anguish. But it is programmes such as yours which will indelibly record the mingled noise of wrath and grief heard throughout our states and give to it a choral definition from which we can fashion some release and work for social change.
It is because we have structured the University as a campus institution with non-campus tentacles that we can combine the benefits of in-depth, sometimes cloistered, research with the hands-on grasp of our societies as they evolve.
Our societies have material as well as institutional dimensions which must be harmonised and pursued in tandem if we are to develop as whole and wholesome communities. We aim for a world at peace and in plenty. But poverty and want stand as perennials upon our landscape, and abuse of state power and corruption stalk us at every turn.
The ultimate challenge of Post World War II has theoretically remained constant — to create a just, open and honest society, in which human beings in free association are free from fear and want and enjoy the economic, social, cultural, civil and political rights, the sum total of which adds up to respect for Human Dignity.
The articulate West expresses the ideology that this human ideal can best be realized through the creation of wealth-generating initiatives and systems operating in social conditions out of which various forms of constitutional democracies can be fashioned.
Geo-physically as well as in dogma, the Caribbean Community is part of that Western world. In a region stretching from Suriname and Guyana in the south, through to Trinidad, Jamaica and on to Antigua And Barbuda in the centre, and up to tiny Anguilla, the tip of the archipelago in the north, we all dance to the same tune and sing the same lyrics - CONSTITUTIONAL DEMOCRACY IS OUR WAY OF LIFE and POVERTY ALLEVIATION is the surest means of securing that way of life.
With the rest of the western world we are on the same band wagon heading to the World Summit on The Information Society spanning from Geneva 2003 to Tunis 2005.
We have been set upon this journey by the revolution in which telecommunications, high-speed computers, satellite systems and other new technological advances have transformed the way we live, work, market goods, conduct business and even go to war.
The purpose of the journey is to harness knowledge and information, once regarded as the product of the cultivated mind and a bench-mark of civilised society, into a transformed and robust tool of wealth-creation and social engineering.
The Declaration of the Summit is in terms that:
the information society shall be oriented towards eliminating existing socio-economic differences in our societies, averting the emergence of new forms of exclusion and becoming a positive force for all of the world's people by helping to reduce the disparity between the developed and developing countries, as well as within countries.
The information society should serve the public interest and the aim of social well-being by contributing to the eradication of poverty, the creation of wealth, the promotion and enhancement of social development, democratic participation, linguistic diversity and cultural identity, while at the same time ensuring equal opportunities for gaining access to information and communication technologies and at all times upholding the principle of legality to ensure its efficient and orderly use.
In our region the markets for agricultural products are in decline, the tourism industry is fragile; and our new venture in the creation of a Financial Services Industry has been stunted and stymied by pressures from the O.E.C.D countries with their assault upon our low tax jurisdictions and their cries of harmful taxation practices.
Reports show that in the years 2002 to 2003 at least five of the countries of the Caribbean Community failed to achieve any positive GDP growth, and the re-energizing of our economies is a major concern.
Against that backdrop, the appeal of knowledge combined with human capital as a wealth creating tool for poverty alleviation is magnetic. At its Twenty-Third Meeting in July 2002, the Heads of Government of the Caribbean Community made an unequivocal commitment with respect to the creation of information or knowledge societies.
Conscious of phenomenal global trends and developments, Heads of State and Government of the Americas, gathering at the summit in Quebec City in April 2001, recognized that an extra-ordinary technological revolution of profound social, cultural, political and economic consequence is underway, and that the region is entering a new economy and society, defined by its vastly enhanced capacity to access and disseminate information and to transform that information into knowledge... The aim is to provide the citizens of the region with opportunities to profit fully from opportunities to strengthen democracy, generate prosperity and fulfil their human potential.
In Trinidad, Vishu Romologan, President of TIDCO, put it bluntly:
We recognize that knowledge is the source of wealth creation and has been for some time. If we don't structure our society to participate in this new wave of wealth creation, we will be left behind.
Human skills and in-depth penetration of connected users are critical factors for a knowledge based economy particularly in societies with small scale populations. Like the Australian strategy, the Caricom agenda of connectivity postulates that the ideal is that all citizens must be able to use technology confidently and creatively to enhance their ability to communicate, create, organize, manipulate and apply knowledge.
Education and training must supply the skills necessary to drive and maintain the information economy.
In pursuit of that resolve to harness knowledge as a wealth-creating tool our region has conceptualised policies of liberalization to secure accessibility and connectivity to the infrastructural frameworks of telecommunications. We are grappling with issues of monopolistic service providers in the telecommunications industry, and juggling with nightmares of rate rebalancing and all that that entails for the most economically disadvantaged in the remotest parts of our region.
Likewise, we are addressing reforms in the general commercial law. In a borderless world the existing law regulating the formation and enforcement of contracts is inappropriate to an electronic commercial environment. Issues of jurisdiction and conflict in the governing law of the contract come to the fore. Digitalised information may travel through several countries and jurisdictions each with its own legal system before its final destination. Which jurisdiction can rightfully claim competence over ensuing disputes? When a banking mandate is given in Antigua & Barbuda but the banking information is electronically transmitted to a foreign central data base for storage, does that transformation constitute a breach of the banker's duty of confidentiality? Is the stored information now outside the protection of the secrecy laws of the original jurisdiction where the mandate was given? To what extent is it vulnerable to non-due process disclosure to the demands of international police in an age hyped by the need for protection against terrorism?
We are in the process of re-designing our laws to secure consumer protection in trade conducted electronically, to guarantee the protection of intellectual property rights over valuable expanding assets stored digitally or the privacy rights of the individual.
In the pursuit of these initiatives, we need to bear in mind what a knowledge society should afford on a non-discriminatory basis:
A KNOWLEDGE SOCIETY really connotes a social environment in which the citizenry, regardless of class, race, gender, age or disability, is empowered by the use of knowledge and knowledge-based skills to redesign and fashion his own economic and social well-being. It has as its core values the fundamental rights and freedoms of which Freedom of Expression is the prioritised value. Foundational to all those values is the Right to Fundamental Justice.
Fundamental justice is focused upon the protection of all those rights of the individual which he inherently enjoys as well as the public interest and well-being of society. It is both substantive as well as procedural.
Substantively, the principles of fundamental justice are rooted in the structured constitutional mechanisms of our Constitution which guarantee the fundamental rights of the individual but detail the limits within which the state can be allowed to intrude upon a citizen's rights in a setting of social competition. In essence, Fundamental Justice is the guard of rights and freedoms against arbitrary and capricious infringement by the State.
Procedurally, it is embodied in the right to a fair, impartial and independent judicial exercise of balancing the rights of the individual with competing social interest. This balancing exercise must be conducted in a manner which is objectively fair, and determinative of the reasonable necessity for the legitimate social purpose, the object of the social interest; it must secure to the citizen protection from irrational and over-broad state policies by the application of procedures which are seen to be fair and even-handed.
It connotes Fair Play in Action.
We live in small communities of professed constitutional democracy, governed by majoritarian rule, and in which the impact of governmental conduct and prescription upon our lives is penetrative, swift and instantaneous; the topicality of the interaction between the state and the citizen cannot be ignored as the central theme of public discussion.
And there are woes.
There are the anguished cries against institutional corruption. There is the accelerating attack upon civil liberties expressed by vesting power in a Governor or the Executive under fashionable International Cooperation to issue warrants for the transport abroad of citizens who happen to be in police custody without due process through the courts.
What of the growing seamlessness between the executive, legislative and judicial arms of government? Increasingly, challenges are coming before courts on the issue of what constitutes an independent and impartial tribunal for purposes of our right to protection of the rule of law - a vital component in the embodiment of fundamental justice.
What of our rights to enjoyment of property and protection against arbitrary state dispossession?
What of our rights to have our judgments against the crown expeditiously enforced?
What of your right to pursue your social aspirations and personal economic initiatives without fear of political discrimination?
In each and every one of our communities instances of these abuses go unheeded and unrelieved.
There is a need for critical appraisal of our prospects of success in the material dimension of knowledge-based wealth, so long as our engines of peace, the structures and institutions of government are allowed to fall into disrepair.
There is a need to reappraise our constitutional structures to determine how best respect for our human dignity and our right to fundamental justice can be secured.
Across the region we have embarked upon a journey which runs parallel with that taken for the creation of knowledge societies. That parallel journey is our initiative for Constitutional Reform. They are indeed two paths which ought to be merged into one to create a highway to a just society. But instead, there are vast over-grown scrublands spanning the distances between them.
Despite all the avowals and resolutions to harness knowledge as a wealth-creating tool and the alleviation of poverty in our societies, the democratisation of our communities seems to rest on the margins of our agenda.
We seem to lack the fervour to meaningfully address that component of a true information society which, according to the U.N. Working Document for the Geneva to Tunis Summit, offers great potential in promoting, not only sustainable economic development, but democracy, transparency, accountability and good governance as well.
Out of the discussions on constitutional reform a number of deep fissures and discontents have emerged which demonstrate that in the practicalities of life our constitutional democracies do not accord with the tenet of respect for human dignity and the right to fundamental justice as mandated by the international treaties to which our governments or administering powers are parties.
There has been no meaningful attempt to reform the inherited colonial laws which pre-existed the Constitutions to bring them into conformity with the rights and freedoms guaranteed by the concept of constitutional democracy.
DeFreitas, Antigua Observer and John Benjamin's Talk Your Mind have put some meaning back into the right to freedom of expression. But against the region's laudable policy of universal access to the ICT networks must be stacked the absence of regulated access to the state-owned broadcasting electronic media in many parts of the region; the lack of Freedom of Information Legislation in most of the states; and the dire need of reform of and restatement upon the Defamation laws.
Across the world, there is a call for the entrenchment of child protection from both physical as well as psychological harm and moral endangerment.
In recognition of the youth as the fountain-head of renewable sources of human capital and skills, so vital to the new knowledge-based society, the material, educational as well as psychological enhancement and protection of our youth needs to be guarded as a precious jewel in the crown of society.
Every citizen has the right to have his civil rights and obligations, as well his criminal liability, determined by a court or tribunal which is fair, independent and impartial.
That right is the corner-stone of fundamental justice. Independence and impartiality of the adjudicative systems of our rights and obligations together constitute a core value of society. Those two attributes go to the heart of public confidence in our legal systems and comfort with our institutions of government. There is a disposition in the developing jurisprudence to temporise with the purity of that right on the basis that the "exigencies and realities of life" may warrant the invocation of the doctrine of necessity so that the citizen may have to content himself with adjudication which does not meet the test of public perception of the tribunal as being independent and impartial.
In the United Kingdom this doctrine is embedded. It has been articulated by the Privy Council as a relevant value for the Caribbean in Panton's case coming out of Jamaica; and was the underlying rationale in Agnita Alexis v. St. Paul et al. 2000 before Adams J in Grenada.
We need to guard against that. Given our economic realities and conditions of service for our arbiters of justice, the doctrine of necessity is more likely to become the norm in application rather than the exception to the purity of principle of the right to an independent and impartial tribunal, particularly, in civil and administrative matters.
Vertes J in R v. Lippe (1991) 2 S.C.R 114 in his consideration of the principle of the right to trial by an independent and impartial tribunal and the allowable dilution of that principle on the basis of the doctrine of necessity, has warned of the significant differences in the cultures of Canada as a democracy of constitutional supremacy with a fused legal profession, and that of the United Kingdom as one of parliamentary supremacy regulated by traditions in the judicial appointments underpinned by a legal profession which is starkly divided between barristers and solicitors. He observed that:
We have a different history, different circumstances in terms of geography and population, and different constitutional arrangements. I do not think one can simply assume that the English model could be transplanted here in the late twentieth century.
The like considerations as apply to Canada apply to us here in the Caribbean region.
In the face of global corruption, the benign paternalism inherent in the concept of parliamentary supremacy should not be presumed as applicable and transportable to the jurisprudence of democratic constitutional supremacy. The two concepts of majoritarian rule in a democratic environment are fundamentally different.
It must not escape us though, that in our region the test of constitutional validity of legislation and executive conduct was first crafted in 1973 by Lewis Ag. CJ in Antigua Times v. Attorney General in terms that:
There is a presumption of constitutionality of impugned Legislation, the viability of which must be weighed as follows:-
- Once a prima facie case is made out by the applicant that the legislation or the executive conduct is violative of a fundamental right, then there is a burden on the State to;
- Show that the legislation or the executive policy or conduct comes within the permissible limits allowed by the constitution, and that its enactment or implementation was reasonably required. Lewis Ag CJ spelt out that this reasonable requirement must be established by placing before the Court all relevant facts and materials to meet the burden.
In short he had hewn out of the constitutional arrangements the uncut and unpolished test of proportionality, which has become internationally accepted since the Oakes case in Canada in 1986.
But our jurisprudence was rejected and infected by the Privy Council in Antigua Times with the inapt application of the rigours of the presumption of constitutionality, which so readily presents itself in the benign environment of the supremacy of parliament. It has taken us nearly 30 years to exorcise the ghosts of the insuperable burden of that presumption of constitutionality of executive behaviour which has confronted the citizen upon a challenge against the state for the infringement of his fundamental or other constitutional right. But at last there are DeFreitas, Antigua Observer, Benjamin and Stott v Brown and our 'Sir' Percy Lewis smiles in vindication from the grave.
The lesson of Antigua Times is that we must be on the qui vive for the ready application and ramifications of the doctrine of necessity so far as our fundamental freedom to have our civil rights and obligations determined by a fair, independent and impartial tribunal is concerned.
We must assertively keep to the forefront the purity of the principle embodied in that right, lest its core be eaten away by the doctrine of necessity.
Accountability in government has died in face of what has been so aptly described in Anguilla as Executive Dictatorship. The executive conceives policy in their chamber, then go into the legislative halls where the executive ayes always have it, and implement the legislative authority to initiate and effect the policy of their crafting.
In our dependent territories we have the situations where the Attorney General as a member of the executive advises the government on policy-decisions, then frames the laws which reflect those decisions, and as a member of the legislature votes in the house upon the passage of the laws and then prosecutes the citizen for non-compliance with those laws.
The doctrine of the Separation of Powers becomes illusory.
Our independent states function upon a somewhat different plan, in that Executive Dictatorship gives way to Prime Ministerial Supremacy. In face of the Prime Minister's power to order his cabinet, the Cabinet sitting as legislators in the legislature say as the Prime Minister bids, and the ayes always have it.
Majoritarian rule in the truest sense is thereby compromised, and the aspirations of democracy thwarted.
The priority accorded to information and knowledge as a wealth-creating tool, an instrument of poverty alleviation, and an engineering agent of a just society must be evaluated against an appraisal of prevailing mechanism of securing the enjoyment of property to the individual.
Our right to the enjoyment of property and protection against arbitrary dispossession by the state has proven to be a shallow thing. Under constitutions such as those framed for Antigua & Barbuda and for St Christopher-Nevis, a government need only declare that government's acquisition of property is for a public purpose and there is no right in the citizen to challenge the bona fides of that declaration. This has been achieved by a constitutional aberration in which the right to property is declared and guaranteed under Chapter 1 of the Constitution, but the arbitrariness of the rule of eminent domain which is characteristic of colonial government is immunized from challenge by a discreet inclusion in the provisions of a schedule to the Constitution.
The obdurate refusal of governments as a matter of policy to honour their obligations due under judgment debts against the state in reality constitutes a violation of the judgment-creditor's right to enjoyment of property
In a constitutional environment which reveres the fundamental right to property, enforcement provisions for judgment-debts against the state should mirror those for the enforcement of judgment-debts against the citizen. In this area of the law the case of Jennifer Gairy has brought us to the realization that the balancing exercise of fundamental justice dictates that the citizen and the state must be regarded as equal juristic entities.
Here in Antigua & Barbuda, as elsewhere where constitutional reform is in train, we have the opportunity, if there be the will, to effect constitutional reforms and put meaning back into the right to enjoyment of property and the protections guaranteed by Chapter 1 of the Constitution.
The plethora of conventions and dialogues on corruption point to the recognition of the global reach of corruption and its pervasive paralysis of national development. Corruption needs no amplification. We need to embrace the global recognition of the essential requirement of a compact against corruption as the root cause of the global failure to create and secure just and equitable societies, despite all the Universal Declarations, Treaties and Conventions on Human Rights.
I would like to make some observations upon the state use of the taxing power.
The moral basis for the exercise of coercive powers against the state has now been rationalized and crystallized by the premises that in a constitutional democracy, the rule of law can only survive by recognition that in balancing the state conceived public interest against the rights of the citizen the state and the citizen stand upon the same footing as juristic entities.
So too, there must be some moral basis for the exercise of the taxing power.
Reasonableness and necessity commensurate with the democratic way of life are the core values of state power to limit the enjoyment of our fundamental and guaranteed rights.
In face of a pre-disposition to squander-mania and fiscal irresponsibility, the constitutional carte blanche of a taxing-power to replenish coffers so wantonly dissipated does not reflect the citizen's right to enjoyment of property or the fulfilment of the just and honest society for which we yearn.
There is a pressing need to examine the constitutional validity of the exercise of that taxing power in face of profligate depletion of the Treasury Purse. The constitutional limitation upon the right to enjoyment of property should not be so widely drawn and framed that legislation in the exercise of the taxing power stands immune from challenge no matter the circumstance. Reasonableness and necessity commensurate with responsible stewardship should be key in establishing justification for the limitation of right to enjoyment of property by the exercise of the taxing power.
In our region the taxing power of the 21st century has assumed the full force and effect of Morton's Fork of the Middle Ages.
Our settings of creature comforts, in cloistered air-conditioned halls of justice, have separated the public at large from the wailing woes of litigants. There was a time when we had justice dispensed in open courts of tropical architectural design accessible to the community at large. People gathered within and without to hear and be informed. The closed doors to the new architectural air-conditioned structures of our Courts are intimidating and forbidding. There is no sense of invitation to the public at large.
Since our need for comfort in our halls of justice and the elimination of noise pollution have dictated the architectural designs of our developing concepts for our halls of justice, we need to re-think and re-evaluate the Court's position that the media, audio or visual, is precluded from direct and contemporaneous access to our proceedings.
Public consciousness and awareness of how justice is dispensed is an essential ingredient for the maintenance of good repair of the institutions of government. In a 19th century case it was said "It is of great consequence that the public should know what takes place in Court. ... The inconvenience, therefore, arising from the chance of injury to private character is infinitesimally small as compared to the convenience of publicity."
We need therefore to revisit prevailing exclusion of the media from the court in order to secure the dissemination of what transpires within our halls of justice and thereby recapture the openness and accessibility of public judicial proceedings.
Our aim is for a world at peace and in plenty. We must address the peace with the like fervour as we seem to be addressing the plenty.
To transit to a knowledge society, the region is challenged to effectively honour the citizen's fundamental rights and freedoms in all their dimensions.
It calls for a prioritising of our core values. We can neither achieve nor enjoy the plenty unless there is peace, and there can be no peace without justice.
These issues must go into the mix of our constitutional reforms. We need to devise a construct of government which secures real and direct accountability by the executive to the governed, stamps out corruption in government and obviates both Executive Dictatorships as well as Prime Ministerial Supremacy.
Such re-thinking may mean fashioning electoral concepts for our executive branch of government far removed from the traditional model in which we have been barnacled. But there needs to be a way out of the dark mists behind which our governments can borrow inordinate sums, create non-repayable national debts without any semblance of transparency or accountability, and so mortgage our right of redemption of our peace and security.
A search is on for ideas in this realm, a search in which we must all be pro-active participants in keeping with your perspective.
It is my hope that the examination and resolution of some of these ills and woes will be worthy of your attention for some discussion and research.
Bernice V. Lake, Q.C. B.A. (HONS) LL.B. (LOND)
Dated the 13th day of November 2003
© Bernice Lake, 2004.
HTML last revised 14th June, 2004.
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