Thursday, January 13, 2011

The Elections Petitions Matter in A&B: An Analysis

A peculiar irony is how some things finish; but don’t end! The Elections Petitions matter will linger until adequately analyzed, responsibly distilled, and emotionally reconciled. Although a lot has been said some hard things remain untouched. And while fools venture where angels fear to tread; perhaps more will think me angel than fool.

Authentic assessment of this matter requires honest professional disclosure at the outset. I have worked professionally for the ALP as well as for a few State agencies under UPP rule in A&B. Accordingly; my initial and preferred mindset was to avoid comment. However, since critical regional development is on the line passionate commitment overrides.

Thoroughly treating with this matter while retaining reader interest dictates that thoughts be arranged and released in three installments:
Part I: High Courts; Low Judgments: A Critical Review (Fri Jan 14)
Part II: Missing the Bus: Redeeming the Time (Tues Jan 18)
Part III: This Matter and the CCJ: Impact & Options (Fri Jan 21)

Part I:
High Courts; Low Judgments: A Critical Review

The biting sarcasm of the OECS Appeals Court’s decision is that despite claims otherwise, the quality of its ruling strikingly resembles Judge Judy’s court; except that her inane findings appropriately suit a day time TV audience - Whereas the matter at hand remains imminently consequential; even with implications for regional jurisprudence, the CCJ!

According to my reasoning, both high court and appeal court got it wrong; both lacked the requisite Solomonic wisdom that this adjudication beckoned. Still, Judge Blenman’s one headed high court appears wiser than the three headed EC appeals court. Charged with a need to be collectively insightful; the appeal court proved severely afflicted with group think jaundice.

It’s no secret Judge Blenman found violations of elections rules significantly egregious and tantamount to disenfranchisement; and declared affected seats void - effectively ordering a rerun in those constituencies.

Then along came the appeal court which effectively said: whereas we agree violations were significantly egregious, according to our probability forecasts the outcomes would be the same. Further, voiding the results punishes the declared winners when there is no led evidence to indicate they held responsibility for the violations. In other words the winners had no control over the violations that occurred; and likely suffered from them just as much as the other side.

To undiscerning minds this thinking may appear reasonable; and is the very thing that makes it akin to a Judge Judy outcome. Truth is, while appearing strong in what it affirms it’s very weak for all that it concomitantly denies. Conclusions are insufficiently rigorous and woefully inadequate for the sophisticated affairs it purports to redress.

Upon closer examination this ruling is marked by cacophony; if not schizophrenia. One is left wondering if the decision itself wasn’t made for other purposes and then feasible rationalizations sought and proffered as justifying cover. It is very hard to discern intellectual integrity in the appeal court’s ruling.

Two separate but related conditions would have been necessary for the appeals court decision to be creditable. Neither condition existed; making the ruling mind boggling.
  1. The number of uncast votes would have had to be less than the margin of victory.
    1. (In each instance the number of uncast votes was two to three times the margin of victory). Or;
  2. The pattern established by those who did vote would have had to be an accurate or at least fair representation of the vast majority of those who did not get to vote.
    1. It’s impossible to tell if this was so; but more than likely this would definitely not be the case. Here’s why:
The last time I checked the course offering in reputable institutions was still called Probability AND Statistical Analysis. One cannot arrive at probability predictions without first engaging in rigorous statistical analysis.
  1. Predicting probability outcomes based on patterns established by the significantly late openings was poor analysis because it failed to realize those patterns would have been highly skewed due to outlier clusters (of voters) that would have pulled the patterns away from the mean.
    • Persons who returned to vote or stayed to vote regardless of length of delay were more than likely individuals all of whom were unencumbered by:
      1. The allotted two hour time allowance for voting
      2. Conveyance restrictions
      3. Human exigencies (infirmity, hunger, indiscipline etc)
        1. In sum, such groupings would more than likely be government workers or well off individuals all of whom would likely disproportionately favor any incumbent government.
    • Please note, while the unemployed, elderly, and youth would normally be groups with time luxury, issues of hunger, infirmity, indiscipline etc can be expected to cancel their effective presence in cases of very extensive time delays.
Unless the voting apparatus in A&B is sufficiently sophisticated and allows tracking of nuanced voter demographics the courts could not have had sufficient statistical data at its disposal to make a sufficiently foolproof probability prediction. Instead it more than likely made a decision using highly skewed samples to predict how entire remaining pools would have voted had they the opportunity to do so. This is flawed analysis.

In the prevailing circumstances, as long as the number of uncast votes remained higher than the margin of victory, all probability permutations should not only have been kept on the table; but also given equal weight. And that includes the probable oppositely skewed outcome that the vast majority of those disenfranchised would have voted for the opposition given the chance to vote.

But perhaps the greatest flaw of the Appeals court decision is its myopic belief that probability can protect democracy. In the court’s reckoning it seems probability trumps principle. While probability is a prediction of likelihood it is a poor substitute for certainty- and should especially not have been utilized when samples for generalization were significantly compromised by flaws that likely pulled them away from the means. It seems the appeal court was flirting with the leisure of unsubstantiated likelihood rather than deciding based on principles of democracy.

I’m afraid the appeal court took too lightly the transcendental purpose of elections: i.e. determining the sovereign will of the people. If the purpose of democratic elections is to enfranchise the people to express their desired choice of government; then any process that significantly compromises and retards that expression of choice must be deemed inadequate; and rightly voided. In this regard Judge Blenman got it right. None can be declared winner if the process of enfranchisement is significantly flawed; and it doesn’t matter whether or not such winner had anything to do with creating the flaw.

Part II 
 Missing the Bus; Redeeming the Time

Ideally, the high court should have reserved handing down a judgment; and instead call both political principals in and say something like: “This court’s finding of fact is that election violations are significant and equivalent to disenfranchisement in affected constituencies. Yet the court is reluctant to proffer a judicial ruling. Accordingly, this court directs you gentlemen to put your heads together (along with colleagues) and come up with a political resolution acceptable to both sides, and the court by X date.”

And what prevented the appeals court (especially since they concurred with Judge Blenman that significant violations had occurred); and Chief Justice as a very senior public servant of the sub-region from stepping boldly out of tradition and facilitating a salutary political resolution when handed the matter? Instead he chose to sit enthroned in hallowed precincts and full regalia muttering Judge Judy quirks before rendering an inglorious and intellectually decrepit verdict.

Solomonic wisdom by either court would have effectively forced both parties to act in a politically mature way for the good of country. It would have also responsibly redressed flawed results while diplomatically avoiding perception of usurping the will of the people. Regrettably, things have only become more politically divisive; while sentiments of apathy, even antipathy have set in towards regional jurisprudence.

Still, while censuring the courts, intellectual honesty demands equal blame is laid squarely at the feet of politicians. Truth is, not only the courts demonstrated low judgment; political leaders did also. The situation required political acumen and nobility- attributes demonstrably absent.

It was obvious as daylight serious elections violations had occurred in some constituencies. Certainly the high court made its concern clear regarding the egregiousness of those violations and their undermining impact on enfranchisement. Further, length of time taken by the appeal court provided ample opportunity for politicians to come up with an acceptable resolution which would have preempted the courts having final say in the matter. Yet they never seized the initiative in a politically mature way.

Mind you, both parties were absolutely correct in seeking relief from the courts (ALP at the high court; and UPP at appeal court); but this should have only been for purposes of establishing and leveraging negotiating capital (with the other) in the midst of an untoward situation - And never for the purpose of making the court final arbiter.

It seems both leaders lacked the pragmatic insight and mature statesmanship needed to realize an urgent political resolution was needed; and was in fact the only viable and sustainable option. Both have enough experience and should have known that at best courts could only provide the right to rule; but can never confer emotional acceptance and goodwill needed to govern.

While it was tactically correct to use the courts to maximize negotiating positions; the urgent task of both leaders was to prevent the courts from having final say in the matter. Sadly a situation requiring mature statesmanship was served only by juvenile one-upmanship; to the eventual disadvantage of all. In the end the bus was missed due to failure of leadership.

A negotiated political resolution was always going to be far superior to any final ruling the courts could render. And there were many worthy options for consideration:
  1. Agree to hold fresh general elections immediately
  2. Agree on by-elections in the constituencies under review; but include any other held by the opposition which might have been equally affected by excessive delays, though not contested by the government due to statutes of limitation.
  3. Agree to let results stand but also agree to earlier than usual general elections (by mid-term for example).
  4. Take elections off the table and go for a power sharing formula instead. For example: the opposition gets deputy prime-minister-ship and control of some ministries etc.
  5. Combinations of any of the above.
Failure to reach for political compromise is a classic shortcoming of our Island politics. All too often at crucial times power, greed, and narrow adolescent leadership get in the way of imaginative, noble politics. At vial moments political leaders must demonstrate a mature, self regulated, cooperative capacity for putting national good front and center. This was one such time!

Regrettably, failure of leadership and the courts have left an outcome that is for all intents and purposes legal; yet not intellectually, emotionally and politically kosher. The only solace is that it’s teachable.
From this object lesson politicians should reflectively examine where their thresholds lie regarding political decency, democratic piety and leadership integrity; not to mention imaginative statesmanship. I am not at all suggesting we baptize politics. There are times strategic gamesmanship is necessary, and commendable in advancing political advantage. Equally, leaders must be mature enough to appreciate and respect; none can win if democracy must lose.

Pedantically suggesting folks simply forget it and move on is a further fickle leadership response to this matter. Intellectual and emotional catharsis begins by recognizing and owning the courts did not serve the matter well; but also that political leaders failed to exercise mature nobility at a crucial national moment.

Yet I firmly believe in redemptive notions, and the unrelenting pursuit of greatest good. I have had the opportunity of private conversations with both political leaders in A&B. Both unquestionably possess the capacity for mature responsible reckoning. Perhaps it’s not too late for them to sit at what MLK liked to call the table of brotherhood and come up with a political accommodation concerning this matter that lends for greater intellectual and emotional acceptance across a wider spectrum of A&B society. The critical challenges presently facing this twin island deserve, demand no less!

Part III
This Matter & the CCJ: Impact and Options

At a public rally following the EC appeals court decision, the Opposition Leader in A&B let fly deep reservations about the emergent CCJ. In pertinent part he is reported to have said that if this is the best regional courts can do; then he promises no one A&B will be “going down that road” under an ALP government.

Clearly both tale and tail of this matter have an impact on the wider quest for a final court to serve all of CARICOM. Apathy and antipathy resulting from this verdict have trickled down towards the embryonic CCJ at a time when it could least afford downsides to its image.

Ordinarily one may classify the Opposition Leader’s statement as knee jerk reaction to disappointment, except that it must be added to a list of similar echoes from Kingston to Port-Of-Spain that seem to indicate an existing crisis of confidence regarding the quality of decisions to be expected at CCJ.
In general the problem affecting CCJ is the problem of Caricom itself- an institution paid lip service but not backed by substantive political commitment, will and action. The problem undermining CCJ is the hypocrisy and disingenuousness so prevalent in Caricom itself.

How does one begin to explain the glowing report given by the Caricom observer team to A&B’s 2009 elections when said event has since been declared as having significant violations of the rules by both high court and court of appeal? I suppose we must await a ‘Wiki Leaks’ version of what was truly submitted to the Secretary General.

And yet, even when one subtracts the insularity and distrust among Caricom; even when one factors out hypocrisies and disingenuousness, the CCJ initiative is still clearly afflicted with a crisis of confidence that is itself directly related to anecdotal experiences people have suffered regarding miscarriage of justice in local and appeals courts across the region.

A major stumbling block to embracing the CCJ is what psychologists call Projection. People are projecting their current judicial fears and suspicions unto the CCJ; and they seem to remain unconvinced that factors unrelated to justice (politics, corruption, class, race etc) will not influence judicial outcomes at the CCJ the way they apparently do in local and appeal courts across the region.

And it is in this regard the disgraceful ruling of the EC appeals court did nothing to boost much needed confidence in the CCJ. Some of you may recall reading this in Part I: “One is left wondering if the decision itself wasn’t made for other purposes and then feasible rationalizations sought and proffered as justifying cover. It is very hard to discern intellectual integrity in the appeal court’s ruling”.

Eventually however, I’m not sure we have any option but the CCJ. Recently the presiding chairman of the Privy Council said that in the best scenario all former colonies (that still do) will establish their own final appellant courts and not continue to burden the Privy Council with their matters. Suggestion: close the door on your way out. Notice: door may remain closed on your next visit. A hint that’s a warning if you ask me! How many of our leaders are listening?!

Besides the onerous economic cost for going to the Privy Council (given exchange rates); how does one quantify the cost in ‘shame’ terms that such a hint has on our independence in the region?
Against this backdrop, it was very interesting to hear an eminent Jamaican jurist (as have many others) recently argue the urgent need for the region to buy-in to the CCJ, and have true judicial independence compliment our already established political independence. In a passionate plea he went on to quote the late great Marcus Garvey as saying “it is better to govern or even misgovern yourself than be governed by someone else”

I wished the matter was that simple! But honestly, no amount of pride or shame can adequately soothe the gripping pains that accompany the miscarriage of justice. Besides, for all its sentiment on autonomy, Garvey’s statement will not move people in this post information age Caribbean. They simply do not have the long suffering it takes to be misgoverned- particularly in matters relating to miscarriage of justice.

For all these reasons and more our people still go trekking off to the Privy Council despite that it remains tarnished with the residual drippings of colonialism.

Our predicament is: on one hand we are being ‘shoved off;’ and on the other ‘we aren’t ready yet’. Summarily, the CCJ has to work; but we have to get it right, and quickly so. There are no other options; plain and simple!

Anyone still asking: CCJ or not; is not just asking a wrong question; but clearly a non-question! Rightly, the only question is: Under what conditions can we swiftly get the CCJ to become what the Privy Council is in terms of being a repository of our confidence in matters of justice?

I think embracing the CCJ begins with accepting that even the Privy Council in its formative stage must have undoubtedly endured quite some measure of suspicion itself. And must have made mistakes before emerging the bulwark of jurisprudence it presently is perceived to be. Look, as our final appellant court the CCJ will render good judgments as well as bad ones; of that I am sure.

Still all such acknowledgments are not good enough. We much proactively build in the best practices for assuaging reliance on the CCJ as our final appellant court.

To this end I can readily think of at least three elements, even if short term, that must be in place to hastily move the CCJ towards redressing its crisis of confidence.
  1. Aggressive Dispassionate Intellectual Push Back: It must be openly agreed the court is not too sacrosanct to be responsibly censured by word or pen. The idea is not to pull down or disrespect; but to keep judges aware their decisions are being observed and evaluated by alert, capable, public minded guardians of regional society.
  2. Aggressive Caricom Oversight: There must be an appropriately qualified panel in place to provide quality control reviews of CCJ performance. This body can also act as a clearing house for vetting concerns regarding how dynamics related to size; wealth, ethnicity etc are perceived to be impacting CCJ dispensed justice.
  3. Aggressive Clandestine Surveillance: Not only for Judges’ safety but the peoples’ jurisprudential safety as well. We must not only know who is threatening judges; but also which judge, if any, is threatening justice by way of corrupt proclivities, and/or political collusions etc.
This list is by no means exhaustive; and though a little controversial, is but a starting point for getting things right.