MUSINGS

It might bear reminder while commenting on the topic at caption, that its origin carries some relevance to Barbados’ Independence, especially as we are in the midst of preparations to celebrate the 50th anniversary of its attainment. It should be recalled that this status was achieved as a matter of law by an Order-in-Council of Her Majesty, The Barbados Independence Order, made under the powers vested in her by section 5 of the Barbados Independence Act 1966, an Act of the British parliament, and that our supreme law, the Constitution that principally regulates our system of governance, is no more than part of the Schedule to that Order-in-Council. 

 

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 In any event, the notion that our grant of sovereignty might be rescinded by a UK parliamentary repeal of the Barbados Independence Act and, consequently, all the subsidiary legislation that flows from it, including the Barbados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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

Recognising this, although I am not sure if he was aware of Lord Sankey’s dicta of nearly 80 years ago, Sir Hilary Beckles, the Vice-Chancellor of the University, sought to pour oil on the troubled waters and duly apologised for what he termed the “misunderstanding” and its consequences. In his letter, he rightly asserted the keenness and willingness of the UWI as a regional institution to appear before the PAAC of the Jamaican Parliament and tactfully affirmed “the well established procedure for the UWI Bursar to make such submissions to all governments on behalf of all campuses”.

 

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

 

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

 

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