De­ci­sion-mak­ing in the shadow of sor­ti­tion

Stabroek News - - LETTERS - Hen­ry­j­ef­[email protected]­hoo.com

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. (https://www.tcd.ie/pol­i­cyin­sti­tute/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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