EDITORIAL

For more reasons than one, we are pleased to learn that the leadership of the local Bar Association has signified its intention to appeal the recent High Court ruling by Madame Justice Beckles that the provision for compulsory membership of the Bar Association in section 44 of the Legal Profession Act, Cap. 370A violates the right of an attorney to the freedom of association guaranteed under section 21 of the Constitution.

First of all, we posit that so important a matter in our system of administration of justice deserves the consideration of more than one tribunal and, arguably, that of our highest Court, the Caribbean Court of Justice.

Second, it does not appear from a preliminary reading of the learned judge’s opinion that there was any argument advanced on behalf of the Bar Association itself, as there would have been in the US and in Canada where a party concerned in the outcome of litigation is permitted to file briefs amicus curiae [as a friend of the court]. Indeed, the title of the instant action reveals rather that the dispute arose as an interlocutory matter in the course of a civil proceeding, rather than being a constitutional motion launched by an affected attorney.

The legal issue in brief was whether an attorney at law admitted to the local Bar is free to decline membership of the Bar Association or whether he or she must comply with the above-mentioned section 44 that provides –

“An attorney-at-law shall, on each occasion on which a Practising Certificate is issued to him, pay to the Bar Association the annual subscription which is or would be payable by him under section 45 as a member of the Association, and shall thereupon (if not already a member), notwithstanding anything in any by-law, ordinance, order, rule or regulation of the Association, become by virtue of this section and without election or appointment by the Association, a member of the Association…”

It appears that this section was enacted in 1973, a number of years after the coming into force of section 21 of the Constitution. We find it difficult to accept that the then sitting members of Parliament did not appreciate the apparent inconsistency and, hence, likely voidness of that provision to the extent of its inconsistency with section 21.

The presumption of constitutionality that is ordinarily accorded to legislation would therefore have entailed a far wider discourse on the proportionality of the impugned section than is apparent from the judgement that appears to treat the freedom to associate as nearly absolute. However, section 21 admits of exceptions as follows where relevant –

“Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –

that is reasonably required in the interests of defence, public safety, public order, public morality or public health; or

that is reasonably required for the purpose of protecting the rights or freedoms of other persons…”

With all due respect to Her Ladyship, there seems to have been no extensive argument from counsel as to whether section 44 fell squarely within these exceptions and whether it was indeed the least intrusive method of securing the objective of that provision.

It is for these reasons and others that we believe the matter requires further ventilation and wider argument than was the case at first instance. Its current import could precipitate the end of the Bar Association as we know it.