Tweet
Not conceding and the rule of law
published: Thursday | September 13, 2007
Martin Henry
I worked radio, RJR 94, on election night occupying a close to ringside seat in the unprecedented, heart-attack counting of ballots. It was clear from pretty early that the polls were holding up and that results would be the closest of calls. Politicalhistory was being made, minute by exciting minute, vote by exciting vote.
Going 10:00 o'clock the Electoral Office of Jamaica declared preliminary results: JLP, 31; PNP 29. It was time for the leaders' speeches of concession and victory.
The President of the People's National Party - and Prime Minister of Jamaica - bravely bounced on to the stage created for celebrating the fifth term and the personal mandate to state in the gentlest and sweetest of voices, "This election is too close to call."
Tension rose in studio - and in the nation. There is nothing mandatory about making a concessionj speech or a victory speech, but the tradition is there. And those speeches can have huge implications on the ground. A university professor some time later told me how impressed he was by the sophisticated analysis of the no-concession speech that he had heard from an 'uneducated' citizen.
Getting home from studio safely was now our biggest concern. Reports were coming in that shooting had broken out in sections of the city some of it directed against the security forces. People clearly saw the potential of no concession for exacerbating a dangerous situation. It was so comforting to see a series of police patrol cars - angels, for the moment, defending the rule of law - cruising the streets as I burned tyre home.
There is no question that the no concession speech was in breach of the hallowed principle of the rule of law. And by rule of law we do not simply mean law enforcement, as the term has come to be widely misunderstood by the public aided by the media. Let us turn to A.V. Dicey, the great British jurist of the late 19th century/early 20th century, as everyone else does, for a clear understanding of the rule of law.
Discretionary authority
There are several distinct elements to the principle of the rule of law, according to Dicey. The points most relevant to our consideration here is that no person is above the law, and everyone, whatever their rank or condition, is subject to the ordinary law of the land and amenable to the jurisdiction of the ordinary courts. The law is king; the king is not the law.
The rule of law speaks to "the absolute supremacy or predominance of regular law as opposed to the influence of ordinary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority." The rule of law "excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals."
The Electoral Commission of Jamaica, through its operational arm the Electoral Office of Jamaica, is the duly constituted lawful authority for declaring elections. And the EOJ did so for the 2007 General Elections at approximately 9:45 p.m. on Monday, September 3. Anyone, from party leader to private citizen, who wants to do so, can challenge the election results - but through the established legal judicial mechanism. Absolutely no one is at liberty to stand before the nation and the world and reject the lawful [even if flawed] declaration of the EOJ because they do not like it.
It is extremely doubtful if the President of the PNP, and then Prime Minister, leading the party co-founded and first led by that great lawyer Norman Manley, had any intention whatsoever to place herself and party above the rule of law by dissing the lawful authority of the ECJ/EOJ. But that was the effect of the sweet and gentle no-concession speech, and lack of intention does not mean lack of culpability.
Redemption partly came the next day in a carefully crafted concession-with-challenge text. The text may have been influenced by a Queen's Counsel elder statesman who made his own infamous faux pas when he declared, "We will not be shackled by the law."
Martin Henry is a communication specialist.
published: Thursday | September 13, 2007
Martin Henry
I worked radio, RJR 94, on election night occupying a close to ringside seat in the unprecedented, heart-attack counting of ballots. It was clear from pretty early that the polls were holding up and that results would be the closest of calls. Politicalhistory was being made, minute by exciting minute, vote by exciting vote.
Going 10:00 o'clock the Electoral Office of Jamaica declared preliminary results: JLP, 31; PNP 29. It was time for the leaders' speeches of concession and victory.
The President of the People's National Party - and Prime Minister of Jamaica - bravely bounced on to the stage created for celebrating the fifth term and the personal mandate to state in the gentlest and sweetest of voices, "This election is too close to call."
Tension rose in studio - and in the nation. There is nothing mandatory about making a concessionj speech or a victory speech, but the tradition is there. And those speeches can have huge implications on the ground. A university professor some time later told me how impressed he was by the sophisticated analysis of the no-concession speech that he had heard from an 'uneducated' citizen.
Getting home from studio safely was now our biggest concern. Reports were coming in that shooting had broken out in sections of the city some of it directed against the security forces. People clearly saw the potential of no concession for exacerbating a dangerous situation. It was so comforting to see a series of police patrol cars - angels, for the moment, defending the rule of law - cruising the streets as I burned tyre home.
There is no question that the no concession speech was in breach of the hallowed principle of the rule of law. And by rule of law we do not simply mean law enforcement, as the term has come to be widely misunderstood by the public aided by the media. Let us turn to A.V. Dicey, the great British jurist of the late 19th century/early 20th century, as everyone else does, for a clear understanding of the rule of law.
Discretionary authority
There are several distinct elements to the principle of the rule of law, according to Dicey. The points most relevant to our consideration here is that no person is above the law, and everyone, whatever their rank or condition, is subject to the ordinary law of the land and amenable to the jurisdiction of the ordinary courts. The law is king; the king is not the law.
The rule of law speaks to "the absolute supremacy or predominance of regular law as opposed to the influence of ordinary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority." The rule of law "excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals."
The Electoral Commission of Jamaica, through its operational arm the Electoral Office of Jamaica, is the duly constituted lawful authority for declaring elections. And the EOJ did so for the 2007 General Elections at approximately 9:45 p.m. on Monday, September 3. Anyone, from party leader to private citizen, who wants to do so, can challenge the election results - but through the established legal judicial mechanism. Absolutely no one is at liberty to stand before the nation and the world and reject the lawful [even if flawed] declaration of the EOJ because they do not like it.
It is extremely doubtful if the President of the PNP, and then Prime Minister, leading the party co-founded and first led by that great lawyer Norman Manley, had any intention whatsoever to place herself and party above the rule of law by dissing the lawful authority of the ECJ/EOJ. But that was the effect of the sweet and gentle no-concession speech, and lack of intention does not mean lack of culpability.
Redemption partly came the next day in a carefully crafted concession-with-challenge text. The text may have been influenced by a Queen's Counsel elder statesman who made his own infamous faux pas when he declared, "We will not be shackled by the law."
Martin Henry is a communication specialist.