No winners and losers when it comes to the law

Oct 26, 2018 Features / Columnists, Peeping Tom

---

On the very day that the Guyana Court of Appeal gave its decision in the case concerning the constitutionality of the appointment of the Chairman of the Guyana Elections Commission, a letter appeared in the media bemoaning that the Attorney General has been losing a great many cases in our courts. With respect to that comment, the Attorney General had the last laugh on that very day.
Cases are not won or lost in a court. People should start looking at court decisions, not in terms of who wins or loses, but rather, as to what point of law has been upheld or rejected.
In criminal cases, since there is a presumption of innocence, the onus is on the prosecution or complainant to prove the charges. The charges are therefore either proved or unproved, the standard of proof being beyond reasonable doubt. It means that if someone is freed of a charge, that person has not won, but rather, that the other side has failed to establish, beyond reasonable doubt, the offence for which the person was charged.
It is not a case of winning or losing. It is a matter of proving the elements of the charge and satisfying the burden of proof.
A person may well have committed the criminal act for which he or she is before the court. But the failure to establish either guilt or innocence may allow that person to be freed or convicted.
A person may be freed not because he or she is not guilty, but because the allegation against that person has not been proved. This is not victory or loss.
When it comes to constitutional matters, these are usually about issues of law and not necessarily facts. There are no winners or losers in constitutional cases. These cases result in either the upholding, rejection and/or clarification of points of law. For example, after the decision in the recent Court of Appeal case challenging the constitutionality of the appointment of a Chairman of the Guyana Elections Commission, one of the lawyers for the appellants claimed that the court had agreed with him on every one of his submissions, but had arrived at a different conclusion.
It is possible for the court, for example, to agree with your arguments, but not agree to the declaration to which you are seeking. Constitutional cases are not about winners or losers, they are about clarifying and expounding on important principles of the law.
The litigants challenging the constitutionality of the appointment of the Chairman of the Guyana Elections Commission are appealing the Court of Appeal judgment. The appeal will have to be heard by the Caribbean Court of Justice, Guyana’s highest Court.
There are a number of points of law which the decision in that court will have to address: the power of the President to make unilateral appointments to the Chair of GECOM; whether the President can reject all the names on the list submitted by the Leader of the Opposition if he finds one name objectionable; how many names, if any at all, does the President need to find as not acceptable before he can reject a list; is the process of asking the Leader of the Opposition to submit a list considered as a settled practice for the selection of a Chairman of GECOM. These are all important legal questions which, regardless of how they are determined, ensure that the rule of law prevails.
The law has no winners or losers. The scales of justice are supposed to be balanced. It is therefore best not to examine these cases in terms of who wins or loses, even though this is how most people look at these cases.
The law is the only winner in court cases. It has long been said that in divorce cases there are no winners.
The ruling of a court in your favour is not a victory for you. It could merely mean that the other person’s arguments did not find favour with the court.
Many persons are of the view that Jagdeo was the loser of the ruling by the CCJ in the term-limits case. But others consider that the main loser is the principle of sovereignty of the people, which accords the people the right to decide whom they should elect as their rulers. The ruling by the CCJ may have denied any possibility of Jagdeo running for a third term, but it does much more than that; it deprives the people of the right to determine changes to the basic structure of the Constitution. There was one dissenting ruling in that case which should be carefully read, because it goes to the heart of what it means by the people being sovereign.
The CCJ ruling is not cast in permanence. Precedents have been known to be overturned. That ruling as it is, however, remains the law, and has settled the issue of term-limits. It will remain the law until it is overturned.
So whether we accept or reject a court ruling, the only winner should always be the law. Judges may rule in favour of one litigant or the other. But when it comes to the law, there are no winners or losers.

---

---