the rising scourge of kritarchy

They’re at it again! The Student ‘Court’ has done the same thing that it did in ‘Crompton v. AMS Elections Committee‘ two years ago. The ruling is a massive power grab, one that undermines the policy setting prerogatives of elected student leaders. They have already managed to force the rightly elected AUS President to resign, but the effects of this decision are much more far reaching than that – they have serious implications for the administration of all AMS subsidiary group elections. The AMS faces a choice – are the democratically elected representatives in charge, or will we descend into a rule-by-judges nightmare, the scourge of Kritarchy.

The Student ‘Court’ has declared the rules that the Election Rules, and thus the election itself, were void. This is insanity. I think that the problem that we run into here is that the name. Student ‘Court’ is not a court, nor should it be imbued with the powers of one. It is a final review body, one that has the ability to adjudicate over the conduct of administrative bodies of the society. The fact that they continue to release their rulings in full judicial style just reinforces that the ‘court’ has, in its own mind, puffed itself up beyond its station.

They have found the AUS rules void. Yet, they did not make any reference to the rules under which the election was conducted. The neither mentioned nor requested either the Candidate Handbook, or the explanation of balloting available online. Without this, how could they possibly make any kind of evaluation of how we conducted our election?

This ruling may not only invalidate the presidential race, but every AUS race, and possibly every race in every faculty that participated in UBCVotes. It effectively holds every sub-unit of the AMS to the same electoral standards as the AMS itself. This is ridiculous, and completely improper. It would place an undue burden on the constituency. If this were the case, in the event that some kind of unforeseen circumstance would arise (like, say, a disputed ballot), the entire election would be invalidated. This opens up a situation where candidates could start invalidating elections after the fact by taking actions for which the committee has no written recourse.

It is entirely possible that what was said in the ballot counting room did not reflect what was on my spreadsheet.  I don’t know about the particulars of the sequence of events, but I think that it’s entirely possible that something was said casually while counting ballots may not have reflected the results in my computer.

I was especially delighted by the page of whining about the fact that the AMS limited the jurisdiction of the ‘court’, in which the ‘judges’ basically said that it didn’t like the rules, but would obey them anyway. Which would be fine, if they actually did obey the rules, but they didn’t.  I’ve decided to pick out a couple of the more interesting quotes from the ruling.

Troubling amongst the statements were these:

It is true that an Elections Appeal Committee under AMS Code, s. IX A(8)(14)(a)–(d) has limits on its ability to overturn the decision of an AMS Elections Administrator or AMSEC, but the Court does not appear to be so bound. Indeed, as a creature of the AMS Bylaws it has a wider mandate than those elections officials constituted by the AMS Code. It may be good practice, and it has been endorsed by this Court in the past, but it is not required.

Why on Earth would the court have unlimited powers? The ‘court’ is also not bound from putting a bounty on people’s heads either, for the simple reason that they shouldn’t have to be told. Likewise, they shouldn’t have to be told that their powers for election appeals would be constrained to the nature of an election appeals process. More troubling still is that the ‘court’ is claiming that it has more powers than it actually has, and that while deference may be “good practice” it is by no means a necessity. Think about that for a second. Good practice is not a necessity.

Again, as to the discretion employed in this case, the evidence presented to the Court regarding the role of Mr. Bortolon was unclear.

Also worrying is that the ‘court’ apparently didn’t listen to the testimony of either me or Ricardo as to what was happening during the initial count. Why was Ricardo in the room? He was counting SUS ballots. If there were trial transcripts, you could read it in black and white. If this rather important and potentially influential fact was omitted or forgotten, what other things have been left by the wayside?

The AUS Elections Committee is given the ability to count ballots. I don’t think that this would be disputed by any sane person. It is afforded the discretion to determine who a ballot is cast for. When ballots were being counted, I assigned a vote to whomever I felt the ballot was cast for, as I was charged with doing by the AUS.  I did this, and at no point did I feel that any ballot was ambiguous. The beauty of the UBC Votes system is that we are able to lean on one another, in other faculties, for support. This is what I did with Ricardo on counting day, but the final decision was the AUS Election Committee’s alone. The ballots, when recounted, were challenged by candidates present during the recount, but were deemed not to be ambiguous.

I take it that the AMS Code prohibits the Court from straying into the realm of what might otherwise be termed “policy”, the proper business of elected representatives. I do not think we are here presented with that problem.

Well, no, not really.  The electoral policies of the Society are the business of elected representatives. So long as they fit within the guidelines of the AMS, they should be given the latitude to determine how they are best going to run their elections. If they want to strictly enumerate the guidelines of the election year to year, that is a policy decision. If they want to take the (in the snippy words of Student ‘Court’) “laconic”  approach of the AUS and leave things up to the Elections Committee, that is a policy decision as well.

But, it is to my mind wrong to suggest that the Court cannot attempt to make sense of its own quasi-legislative framework in a matter analogous, if not identical, to those of a ‘real’ court.

Here we run into my biggest problem with the ‘court’. It thinks it’s a Court. I wholeheartedly dispute the statement that it is wrong to severely limit the scope and power of Student ‘Court’. It is fundamentally and essentially right. The ‘court’ has learned basically nothing from the Crompton case. They have not learned that the massive overhaul to the student court system because of that case might necessitate a change the way that the ‘court’ sees itself.

There is of course the reference to “natural justice” in AMS Bylaws, s. 21(2)(f), a term of art regarding the conduct of hearings with which the Court here complied. But that should not be taken as importing the whole field of administrative law along with it.

This was funny. Touché.

All that can be said is that the AUS Elections Committee acted in their discretion, as was their discretion.

That is correct. We did. We created rules, and applied them. It’s Student Court who didn’t bother to read them.

…only the absence of rules on tabulation, appeals and by extension the operation of the Election Committee are invoked…

OK, there isn’t much I can do to respond other than referring you to the “Complaints and Protests” section of the Election Guidelines, and the section on voting info on UBCvotes.

The court is able to declare that an action is void and of no effect, but this action refers specifically to a decision of the AMS Elections Committee or Election Appeals Committee. Was that specific action right or wrong? A Presidential election can’t be ‘wrong’, especially when you don’t take all the facts into account.  They can’t declare a whole election of no effect. In particular, they can’t just declare one election invalid – the things they claim were wrong were not limited to the Presidential race. This would invalidate all the AUS (and quite possibly the SUS, HKUS and EUS) elections as well, as they do not have the appropriate amount of rules. Our elections rules were based on SUS’s rules – something that the Science Undergraduate Society should find troubling given the current set of circumstances.

A cursory glance at the UBCvotes.ca website would have yielded the regulations and tabulation procedures. Five minutes is all that it would have taken – it’s shocking to see that all the work that they were willing to put into the case was not preceded by a thorough examination of all the documents. They reference common law compilations in their ruling, which they are barred from doing, but never once do they mention our Election Guidelines. I guess they were too busy reading the works of the legal scholar Driedger.

The ‘court’ failed to do its due diligence in asking for or seeking out our Election Guidelines. They did not tell us that they were considering the rules of the election, and did not mention that they were going to adjudicate on the validity of the election. They did not abide by the rules set out for them in the governance documents of the AMS. In my humble opinion, it was irresponsible and slapdash. It’s time for Council to fail to accept this ruling.