Decision-making in the shadow of sortition

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.