Arthur Williams | Retain constitutional provisions for senator appointment
On Friday December 3, 2020, there was reported to be “drama” at the sitting of the Senate as Peter Bunting was not able to be sworn in because the appointment of Norman Horne was still in effect.
In response to the Friday events, the editorial published in The Gleaner on Monday, December 7, 2020, said that the “fiasco” again places on the table the question of the structure of the Senate and the mode by which its members are appointed. It goes on to say that “since the Holness affair, this newspaper has been sympathetic to the idea of political leaders having the right not only to nominate senators, but to revoke appointments in the event of irrevocable policy differences between themselves and the appointees”.
On the same day, former Prime Minister Bruce Golding weighed in on the issue in his opinion piece published in your newspaper. He pointed out that the 1959 Constitution expressly provided that the appointment of a member of the Legislative Council (the precursor to the Senate) could be terminated on the advice of the person who had nominated him, but that provision was deliberately excluded from the 1962 Independence Constitution. He posited that the security of the Jamaican Constitution requires that we review the provisions regarding the appointment of senators and revert to the 1959 arrangements to allow for such appointments to be revoked by the same process by which they were made.
In the case in which I was a litigant, Justice Day, who presided over the Full Court hearing the matter, contemplated the issue of the appointer having the power to revoke an appointment and said that it appeared to him that “the high ideals, principles, and values that the framers of the (1962) Constitution intended for the Senate are:
a) A measure of security of tenure
b) Independence of deliberation, i.e. freedom to debate
c) Separation of powers in the legislature
d) Check and balance of powers within the legislature.
He concluded that any act or decision by the constitutional holder of an office that nominates senators that conflicts or appears to run contrary to these fundamental ideals and principles would, on the purposive interpretation of the Constitution, be inconsistent and/or in contravention of the Constitution.
His view was supported by the other two judges of the Full Court and by the three judges of the Court of Appeal as well as by noted constitutional lawyer Dr Lloyd Barnett. It is my respectful view that we should adhere to the position as stated by the learned judge and retain the provisions of the Constitution regarding the appointment of senators.
Indeed, the issue that gave rise to the Gleaner editorial and the article by former Prime Minister Bruce Golding, I submit, can be dealt with other than by moving away from the existing provisions of the Constitution and giving power to the appointer to revoke appointments.
The Constitution provides that the seat of a member of either House shall become vacant upon the next dissolution of Parliament after he has been appointed or elected, unless certain other things occur. These include ceasing to be a Commonwealth citizen or holding allegiance to a foreign power, being sentenced to a term of imprisonment exceeding six months, becoming bankrupt, and becoming a party to a contract with Government without prior declaration of exemption.
An Alternative Method
I submit that the way to deal with the Bunting-Horne situation is to add another method of ending the tenure of a senator. That is to say, the seat of a senator shall become vacant if the person with the authority to appoint that senator ceases to hold that position, be it prime minister or leader of the Opposition.
This would obviate the need to request or require persons to resign – as I have seen suggested in other commentary – and would leave intact, the existing provisions of the Constitution and maintain the high ideals, principles, and values that the framers of the Constitution intended for the Senate.
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