Judicial thinking…

first_img…on the elections brouhahaToday, the CCJ has a “Case Management Conference” to indicate to the PPP and the Govt the timelines for their submissions in the appointment of the GECOM chair appeal. This comes in the midst of the latest political brouhaha which also landed into the CCJ’s lap. This emphasizes that we’ve chosen the CCJ as our final court of appeal on even our domestic legal problems.Of the 15 Caricom members, only Barbados, Belize and we’ve done this. The rest retained the British Privy Council for their final appeals! Our political leaders from both sides of the divide were more “West Indians” than Jamaica and Trinidad, and insisted that Judges from countries that weren’t even CCJ members judge us!! There are no Guyanese on the CCJ bench right now.The argument was that “local” legal minds would be more attuned to our local idiosyncrasies, and consequently be able to apply the law in a more nuanced fashion. Not everyone, including the eminent and recently departed distinguished legal scholar Fenton Ramsahoye, was so convinced. It’s been pointed out that in such small territories, where there are all sorts of local connections and intersecting interests, the Justices may have “skin in the game” and consequently give decisions based not on the law, but on their personal inclinations.“Textualists” hold that judges should just “apply the law as written”, while “originalists” insist they should also hark to the “intent” of the framers – the “spirit” of the law. “Realists”, on the other hand, accept that judges invariably have personal perspectives, and should therefore state “where they’re coming from”. For instance, they could be looking at the consequences of their decision in light of changed conditions. And your Eyewitness has barely scratched the surface of the tools – such as precedents – of judicial decision making!!So, dear reader, you can begin to understand that when judges give their rulings, it could go in any direction!!So, on the GECOM Chair ruling, which tool might best be used? Well, the insertion of Art 161 (2) was only done just before the 1992 elections. The text is pretty clear, and we know for sure the intent was to impose some sort of “give and take” in the appointment, between the President and the Opposition Leader. Was this achieved? When the President rejected all three lists, could he act unilaterally and still satisfy the text?What are the Judges “personal inclinations”??…on majorities (again!)With the above background on judicial thinking, maybe we can figure out what went down in our courts, and what might be ahead in the CCJ on the NCM vote?? Let’s start with Art 106 (6): “The Cabinet including the President shall resign if the Government is defeated by the vote of a majority of all the elected members of the National Assembly on a vote of confidence.” Now you can’t get clearer text than this, can you??What was the intent of the framers when they inserted the Article in 2001?? Well, we’d inherited a similar one from the British in our Independence Constitution in 1966, but Burnham removed it in his 1980 Constitution. Introduced in 2000, the intent was that governments must show they’ve retained their democratic credentials after being elected.The word “majority” in and of itself always meant “the greater portion”, and an odd number of seats was chosen over the years (1961 to 1980, 53 seats; since 65 seats) to prevent a tie by having “1” as the tiebreaker to give “the greater portion than all others”. The formula is 65-1 divided by 2 = 32 +1 = 33!! No need for half bodies!!The redundant adjective “absolute” was introduced to muddy the waters and produce a “preconceived” result!…on these mega sentencesOK…your Eyewitness accepts that some crimes are beyond reprehensible. But what’s the point of these 100-year sentences being doled out nowadays?Especially when they’re now being routinely appealed and reduced?? Spinning wheels?last_img read more