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Thursday, May 19, 2022

UDP election petition – an evolution of legal thought

UDP election petition – an evolution of legal thought

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The recent decision on the election petition of UDP has left some feeling disappointed, some feeling victorious and quite a few confused. Perhaps the story of a traffic light could be a close analogy of the intricacies of such a legal matter.

Red on a traffic light is a mandatory signal to stop and to wait for the green light in order to be able to go. Imagine a driver during the day arrives at the traffic light and the light has gone red. The moment he goes across the junction he heard a police whistle. He stops and is charged and taken to court and is fined.

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Another driver comes to a quiet and isolated junction by 3am in the morning with the traffic light gone red. The driver does not feel safe and there is zero traffic. He decides to go – then a police whistle. The driver is charged and taken to court. Now this is the tricky stuff. Should the driver be fined just like the other for breaking a traffic law or should the court let off?

Stepping into US politics for a moment, one can find the decision of a court swaying between two outcomes depending on the mindset of the judge – being “conservative” or “liberal”. No doubt the two dominant political parties in the US, the Republican Party and Democratic Party, always wish to fill the positions of the Supreme Court with a judge that has their own similar ideological leanings.

Reasoning has kept man on the top echelon of the food chain. As a tool it can betray its own shortcomings or it can demonstrate its ability for progress and advancement. This raises the philosophical question. Is there anything like objective thinking? Are decisions indeed objective or are they liable to be, to some or large extent, subjective?

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Coming back to the point, the decision to throw out the UDP petition due to some technicality seems close to the analogy of the traffic light syndrome and the mindset of the decision maker. The answer to the question whether to follow the letter of the law, or rather, enforce the spirit of the law has over the years been a matter of serious legal debate. Charging and fining the night driver would have followed the letter of the law. Letting him off would have followed the spirit of the law.

Quoting a real example from the US, a nurse closed from work in the wee hours of the night and was driving home. She suddenly saw a police car following with the siren blaring behind her car. It was on a lone dusty country road leading to her home. She sped up and never stopped till she got into her compound. The police arrested her and took her to the station despite her explanation that she was sacred on the lonely road but surrendered immediately she got home in the presence of her husband. However, the following morning she was released uncharged. The first officer followed the letter of the law and perhaps a senior officer at the station decided to follow the spirit of the law and let her go.

Institutions are always tested especially on moral and political issues which most often carry a heavy burden on reasoning and conscience. There is an avalanche of cases supporting both sides of the argument of which way to decide – the letter or the spirit of the law.

Generally, it is always a debate that is never a question of winning or 8losing. It is more of an evolutionary process of an institution.  Present day jurisprudence tends to be more liberal in outlook. Such an outlook considers the extent to which technicalities affect the underlying substantive issue under consideration. In the particular instance of the UDP petition, it seems more like one of missing an opportunity to know the substantive issue of how an election can be won or lost for the purpose of strengthening a fledgling democracy. It may well be the zeitgeist of the evolutionary years of a democracy. Happy New Year folks. Just thinking aloud.

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