The Final Word

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The Scarlet Pimpernel Blog

Tuesday, 09 November 2010 06:55

By The Scarlet Pimpernel

Now that I have perused and digested the full pronouncement of the “final word” in the election dispute handed down from the Eastern Caribbean Court of Appeals, and I finally understand the reasoning and conclusions offered by the Court,

I believe it would be an exercise in futility to expound the extent of and rationale for my profound disagreement. Instead of beating a dead horse, I wish to shed some light on the real culprit that underlies this and many similar parades of judicial mediocrity which abound in Antigua & Barbuda, and to some extent, the wider Caribbean region.

It is nothing short of a travesty of our democracy to have an “intermediate appellate court” endowed with the “final word” regarding the single most important exercise of freedom in our democracy. Remember, the selection of the People’s representatives in free and fair elections is the bedrock and foundation of a democracy.

In this light, it is beyond reasonable dispute, that judicial interpretation and ultimate decision-making regarding the People’s sacred franchise is to be reserved exclusively for the “sharpest knives in the rack,” the most learned jurists, who sit in the highest court in the jurisdiction. The very concept and ideals known as “democracy” demand this, anything less is unacceptable, unbearable and undemocratic.

It would be unimaginable for a national election dispute in the United States of America, or any mature jurisdiction for that matter, to be ultimately determined by any court other the highest court in the jurisdiction. The 2000 landmark United States Supreme Court Decision (http://www.law.cornell.edu/supct/html/00-949.ZPC.html) which installed George Bush into the presidency of the United States pellucidly supports this contention. Indeed, appeals were first addressed to federal intermediate appellate courts, but the final word had to come from the highest court in the land, the United States Supreme Court, and rightly so.

Antigua & Barbuda is a United Kingdom based legal jurisdiction, but it is instructive to note that national election disputes in the UK do not get ultimately settled by intermediate appellate courts. To the contrary, the “final word” on questions that involve such important aspects of democracy and fundamental rights in the UK are generally regarded the exclusive domain of the court of last resort in the UK, the House of Lords.

Why then have “independent colonies” of the United Kingdom such as Antigua & Barbuda created legislation where the “final word” in an election dispute is assigned to middling justices of an intermediate appellate court? Could it be that in our politicians’ fervour to harness support for the Caribbean Court of Justice (CCJ), and showcase the quality of our local jurisprudence and generic systems of justice, they have instead lifted up the donkey’s tail? It would be an understatement to say that our legislators have gravely erred in this connection.

I do not wish to cast aspersion on the legal acumen of the fine justices of the Eastern Caribbean Court of Appeals, nor would this commentary be less applicable if they had reached a different conclusion in the circumstances.

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I simply wish to strongly advocate for a change in the laws of Antigua and Barbuda (Representation of the People’s Act) to allow a further appeal in election disputes to the Privy Council or Caribbean Court of Justice as the case may be, with respect to the “final word” on such a sacrosanct matter involving the quality of our democracy, within the context of recognizing the preeminence of the vox populi and the iniquity of judicial disenfranchisement.

While we are advocating changes in the law, it would not hurt to legislate a 120-day time frame for the determination of election disputes. If a court is to be the final arbiter of our election results, let the decision come from the hallowed chambers where the best, brightest, and most experienced justices deliberate in the highest court in the jurisdiction.   

Legal Reform Required

I maintain that the Constitution and laws of Antigua & Barbuda are in need of extensive overhaul, but because our Constitution does not provide for a non-partisan Attorney General, we are repeatedly burdened with political hacks and invalids occupying that office. Antigua & Barbuda has never had a progressive Attorney General blessed with the legal wisdom and sufficient love of country to lead the charge for profound legal reform. Successive administrations have been satisfied to propel pedestrian, legal minds into the office of the Attorney General to do their bidding and provide legal cover for their wrongdoing.


Moreover, our constitution creates a system where quasi-educated politicians, with no legal or legislative training, are responsible for advancing the legislative agenda of our nation; therefore, we are logically relegated to a position where our laws merely reflect group acquiescence to the political state of affairs ,wherein the ayes have it regardless of merit or value. Consequently, our laws become politicized to the whims and fancies of the political party in power and the opposition voices in parliament are quickly forgotten.

Final Word

In closing, I want you to consider the idea proposed by Przeworski where, instead of equating elections with democracy, it is viewed as an accountability mechanism described thusly, “Governments are 'accountable' if citizens can discern representative from unrepresentative government and can sanction them appropriately, retaining those in office who perform well and ousting those who do not. An 'accountability mechanism' is thus a map from the outcomes of action of public officials to sanctions by citizens. Election is a 'contingent renewal' accountability mechanism, whereby the sanctions are to extend or not extend the government’s tenure."

Since the judiciary is deemed the most appropriate organ of government to protect and preserve our fundamental rights and freedoms in our democracy, particularly as it relates to determining representation in government, election disputes must be ultimately settled at the most eminent level of our judiciary.

The Scarlet Pimpernel is the nom de plume of an Antiguan born “knowledge broker” whose intercontinental exploits involve work as a university founder and educator, military strategist, international legal consultant, United States prosecutor, published author, trade advisor in Latin America and international investment counselor.

The inimitable acuity of the “Pimpernel” is sought after by entrepreneurs, investors and governments from Dubai to Brazil. Recent work, created for Latin America, which speaks to the conjunction of technology and education to reduce cost, motivate students and improve testing results will be translated and introduced to school systems across the Caribbean later this year. “Employing anonymity to domesticate the ego ...”

 

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