Discussing their recent paper virtually last week, “The Judiciary and the 2020 Guyana Elections”, Lecturer in Law, Dr Ronnie Yearwood and Senior Lecturer in Political Science Cynthia Barrow-Giles – who led the high-level Caricom team to supervise the recount of all ballots cast at the March 2020 elections – bemoaned the increasing “Judicialization of politics” in the Caribbean but more so Guyana.
The “Judicialization” of politics has been a phenomenon commented on in the US and other jurisdictions since the 1980’s. One expert in the field, Ran Hirschl, defines the phrase to mean the adjudication of “matters of outright and utmost political significance that often define and divide whole polities, such as determination of foundational collective-identity questions, nation-building processes, corroboration of regime change and determination of electoral outcomes.”
The background to these comments on judicial creep into what had been seen as the bailiwick of politics was the centuries-long tradition of the Courts being and equal branch of the the government and deferring under the “political question” doctrine on contentious matters, which were referred back to the Executive and Legislative branches. This judicialization of “mega-politics” or “pure” politics in other jurisdictions has included electoral processes and outcomes, restorative justice, regime legitimacy, executive prerogatives, collective identity, and nation building. All of which have engaged our Courts recently.
But Hirschi raises some very pertinent questions on this trend for us in light recent developments here that started even before the March 2, elections: there was the APNU/AFC government resorting to the Courts to contest the PPP’s successful NCM motion in 2018, claiming that 33 was not the majority of 65. If there was ever an “abuse of process” in the judicialization of our politics, that the two lecturers highlighted, this has to be it.
In the election’s fiasco, they felt “the political parties deliberately resorted to the courts in order to resolve what was essentially in our view a political issue.” The issue being “who was the winner of the elections.” Now in strict terms adjusting disputes on electoral matters is a matter for the courts but what was being alluded to had to have been the malfeasance by GECOM officials to thwart the will of the people in the tabulation of the SOP’s. Observing that GECOM was one of the most “empowered” institutions in Guyana, of them was very blunt about GECOM: “In the context of the problems that Guyana has been experiencing over the years, I don’t think that it serves the purpose of Guyana.” This conclusion should give pause to those who are critical of the PPP government for tackling the restructuring of the electoral body’s Secretariat.
But Hirschi has some advice for us: “…questions such as a regime’s legitimacy, a nation’s collective identity, or a polity’s coming to terms with its often less than admirable past, reflect primarily deep moral and political dilemmas, not judicial ones. As such, they ought—at least as a matter of principle—to be contemplated and decided by the populace itself, through its elected and accountable representatives.
“Adjudicating such matters is an inherently and substantively political exercise that extends beyond the application of rights provisions or basic procedural justice norms to various public policy realms. Judicialization of this type involves instances where courts decide on watershed political questions that face the nation, despite the fact that the constitution of that nation does not speak to the contested issues directly, and despite the obvious recognition of the very high political stakes for the nation. It is precisely these instances of judicialization of watershed national questions involving the intersection of very high political stakes with little or no pertinent constitutional guidelines that make the democratic credentials of judicial review most questionable.”
However, while it might be best if the politicians could resolve “political questions” among themselves without resort to the Courts, we should not be too optimistic. We are, after all, a young nation.
Rather we should take the hint of the lecturers and improve the selection of our Appellate Court Justices.
