Tue | Aug 22, 2017

Letter of the Day | The Court and the Parliament

Published:Thursday | March 23, 2017 | 3:00 AM

THE EDITOR, Sir:

Gordon Robinson has misguided himself. The supremacy of Jamaica's Constitution is not in question. Neither is the authority of the court to adjudicate on any action of Parliament that may contravene the Constitution. It is that Constitution that gives validity to the Senate and House of Representatives (Powers and Privileges) Act that mandates reference to the usage and practice of the House of Commons, where a question arises as to the right of Parliament to peruse any document. The court is also bound by that provision.

What is at issue here is the power of the court to determine what document the Parliament may or may not peruse. If, indeed, it has that power, what is to prevent it from barring a minister from tabling a ministry paper or a member from tabling questions or a private member's motion? In fact, what would prevent it from barring a member from uttering in Parliament the very same things that may be contained in the report it has barred the Parliament from tabling? Does Mr Robinson appreciate the absurdity of the direction in which his mind has gone?

The Jamaica Bar Association case cited by Mr Robinson has to do with the application and enforcement of a law that, it argues, violates the constitutional rights of Jamaican citizens. That is clearly within the power of the court to determine. The tabling of a report that has no legislative effect is a completely different matter. Its contents may cause damage to one's reputation, but they cannot, without more, infringe any of one's fundamental rights as enunciated in Chapter Three of the Constitution.

 

DAMAGE TO REPUTATION

 

The contents of the auditor general's report can also damage one's reputation. Does the court have the power to prevent that report from being tabled? And the fact that the tabling of that report is required by the Constitution does not alter the principle involved.

Australia, like Jamaica, has a written Constitution that is supreme. Mr Robinson would do well to read the case of A. v Corruption and Crime Commissioner [2013] WASCA 288, as also the comments of the presiding judge, Martin CJ, contained in his published paper 'Parliament and the Courts: A Contemporary Assessment of the Ethic of Mutual Respect'.

He would also benefit from reading the case of Kaldas v Barbour [2016] NSWSC 1880, a case that bears a striking resemblance to the matter currently before the local supreme court.

None of us is infallible, and that includes the courts and the judges thereof. I again implore everyone to watch this case very carefully.

Bruce Golding