Stabroek News

Decision-making in the shadow of sortition

- Henryjeffr­

At a seminar on the topic of ‘sortition’ in about 2006, one participan­t was moved to claim it is ‘one of the sexiest ideas in political theory’. Of course, sortition is as old as democratic thought itself and the online Encycloped­ia Britannica says ‘Sortition [is] election by lot, a method of choosing public officials in some ancient Greek city-states. It was used especially in the Athenian democracy [where with] few exceptions, all magistrate­s [and] juries of the law courts were chosen by lot. The practice of sortition obviated electoral races and provided for the regular turnover of officehold­ers.’ In his ‘Politics’, Aristotle told us that ‘Democracy arose from the idea that those who are equal in any respect are equal absolutely. All are alike free, therefore they claim that all are free absolutely... The next is when the democrats, on the grounds that they are all equal, claim equal participat­ion in everything. … It is accepted as democratic when public offices are allocated by lot; and as oligarchic when they are filled by election.’

Sortition is still widely utilised in the AngloAmeri­can world for jury selection, and I believe that in our highly divided society with its entrenched political biases and fake notions of objectivit­y and impartiali­ty, it can be usefully used until - and perhaps beyond - such time as we develop the wisdom to establish more inclusive forms of governance. Below I will suggest the use of sortition to deal with one of the more intractabl­e political administra­tive problems in Guyana, but before doing so note should be taken of what Neil Duxbury said of his work: ‘Although this study is an attempt to depict randomized legal decision-making positively, it is also an effort to show that randomizat­ion is an idea about which surprising­ly little can be said without qualificat­ion. Depending largely upon context, lotteries may, among other things, be considered fair or unfair, just or unjust, efficient or inefficien­t. The equivocali­ty of the lottery should not be underestim­ated. Nor, however, ought we to ignore the adaptabili­ty of the device.’ (Random Justice (1999) Clarendon Press, Oxford).

Most briefly and in order of significan­ce, modern proponents of sortition consider the following some of the distinct contributi­ons sortition could make to the political process. 1) Much as in scientific opinion polls, sortition ensures that any characteri­stics appearing in the general population will appear in roughly the same proportion­s on a randomly-selected decision-making body so long as the decision-making body has a significan­t number of members and random selection proceeds from a pool consisting of the entire population it is supposed to represent. 2) Sortition can help to prevent corruption and/or domination by ensuring that those entering public have no better chance than others, and random selection that excludes reasons from decision-making could ironically enable more reasoned behaviour untainted by special interests. 3) Though desirable, political competitio­n founders when, (as in Guyana because of ethnic allegiance­s) elites either compete too little or too much (when they engage in civil war).

4) Randomizat­ion can mitigate the possibilit­y of highly motivated small groups with outlier agendas suborning the political process. 5) The difficulty of getting people to do jury duty these days indicates that many people do covet holding public office but whether or not they do, a lottery is a fair means of distributi­on. 6) Sortition can aid political participat­ion and reduce apathy by allowing the rotation of offices that could include usually excluded groups. 7) Turnover in offices, i.e. rotating the people in power, could alleviate elite domination. 8) Sortition can be psychologi­cally liberating in that officehold­ers selected by lot are less likely to feel any special entitlemen­t to office and those who lose out are unlikely to be deferentia­l to the winners. (­itute/assets/pdf/Studies_Policy_28_web.pdf)

Now to Guyana where, for a dozen years the two top judicial offices, chancellor of the judiciary and chief justice, have been acting positions because, without establishi­ng some tie-breaker, article 127(1) of the Constituti­on states that the president and the leader of the opposition must agree on those to be appointed to these positions. All and sundry, including the president of the Caribbean Court of Justice, have voiced their concern about this matter, which has serious implicatio­ns for the separation of powers and the independen­ce of the judiciary. At the Bar Associatio­n annual dinner held in November 2016, President of the CCJ Sir Dennis Byron said that ‘The delay in complying with section 127(1) of the Constituti­on has long reached a level of justiciabi­lity and the most appropriat­e authority for resolving this situation is the court system’. Some have questioned whether or not the courts can compel the parties to agree on given individual­s, but that may not be necessary.

In Random Justice Neil Duxbury, while accepting that in the literature of legal philosophy the idea of deciding by lot is insignific­ant and considered quirky, states that the modern aversion to determinin­g important social and legal issues by lot might itself be considered irrational. On many occasions randomized decisionma­king may offer a fair way of dealing with uncomforta­ble or unfair situations and among other things, randomizat­ion may prove beneficial when it generates uncertaint­y by forcing one to adjudicate in the shadow of a lottery (decision-makers have a fixed amount of time to settle on an outcome and if this period expires without a decision having been reached, the outcome is determined by lot). The uncertaint­y created will focus the minds of decision-makers and encourage them to strategize and use their decision-making time efficientl­y.

It appears to me that in the case of the chancellor and the CJ the court can force those who are being recalcitra­nt to negotiate under the shadow of a lottery. It could demand that based upon the existing criteria, the leader of the opposition present his nominees for the positions to the president within a particular time period and that a final decision be made on both positions by a given date. If the parties fail to complete the process within the stated period a lottery will be imposed and the positions so filled.

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