Fri | Sep 21, 2018

Nonsensical! Retired judge says another Senate seat court ruling not necessary

Published:Friday | February 13, 2015 | 7:39 PM
Morris... says the Senate seat matter will be taken to the Supreme Court

Barbara Gayle, Justice Coordinator

KINGSTON, Jamaica:

A retired Court of Appeal Judge believes it is not necessary to go to the Supreme Court for a determination of the fate of Senators Christopher Tufton and Arthur Williams arising from declarations made by the Constitutional Court.

Last week Friday the Constitutional court handed down a unanimous decision that the men’s undated and pre-signed resignation letters submitted to the Governor General by the Opposition Leader were null and void.

READ: The judgement - Williams vs Holness

In the Senate today, President Floyd Morris allowed Tufton and Williams to take their seats but ruled that they would not be allowed to participate.

Morris said the Supreme Court would be asked to rule what should happen to Dr Nigel Clarke and Ruel Reid who were appointed in 2013 as the replacements for Tufton and Williams.

Nigel Clarke

However, according to the retired judge, all that is needed is for the Clerk to the Houses of Parliament to request the Attorney General and the Solicitor General to advise the President of the Senate in writing that Senators Williams and Tufton are entitled to resume their seats.

That was done on Thursday by Attorney General Patrick Atkinson.

Court could throw out application

"The court could throw out any other application which comes before it now on the basis that the Constitutional Court has already ruled on the issue," the retired jurist said.

"The only basis they can be going back to the court is to ask the court to say that the appointments of Reid and Clarke were invalid and the Governor General acted ultra vires (beyond his power) on the premise of false resignation letters," the retired judge pointed out.

But, the retired judge says any attempt to go back to the court is nonsensical because the declarations are clear and there are numerous authorities to support the ruling of the Constitutional Court.

The Constitutional Court had declared that the letters of resignation on which the Governor General acted were null and void.

The legal expert concurred with the Constitutional Court that Senators Williams and Tufton have never ceased to be members of the Senate and so they are entitled, in law, to continue sitting in the Senate whenever the Senate resumes its sittings.

Purported appointments

The logical consequence of the ruling of the Court’s declaratory order is that the appointments of Clarke and Reid were "purported appointments", said the former Appeals Court judge.

On being asked what are his conclusions on the issue, the retired judge said: "This case illustrates how the principle of the Separation of Powers governs the Constitution".

The Supreme Court has declared the law, the independent member of the Executive, the Attorney General, is empowered to explain the effect of the declaration to the President of the Senate and Senators Williams and Tufton resume their seats in the Senate.

"This is the rule of law in action and it has consequences in practice," he said.

Contempt of court

The retired judge warned that "if anyone attempts to prevent Senators Williams and Tufton from exercising their right to resume their seats in the Senate, they will be found guilty of contempt of court.

He added that, equally, if Mr Clarke and Mr Reid attempt to exercise any powers of a Senator, they will be liable to a penalty as ordained by section 46 of the Constitution which reads:

"Any person who sits or votes in either House knowing or having reasonable ground for knowing that he is not entitled to do so, shall be liable to a penalty of twenty dollars for each day upon which he so sits or votes.

Any such penalty shall be recoverable by civil action in the Supreme Court at the suit of the Attorney General.

In response to questions as to the effects of the acts of Clarke and Reid while they exercised the office of Senators, the retired judge said: "In law, they were senators until the court declared the letters of resignations of Senators Williams and Tufton null and void."

READ: Christopher Tufton and Williams still Senators, says Attorney General

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