Court erred in Senate decision
Ruling fails to resolve public-policy dispute
Why are so many lawyers expressing so many divergent opinions on the effect of one Supreme Court Judgment?
Everybody has a view. Some even say the decision means Young Andrew should resign. Young Andrew himself has been consistently inconsistent: first combative; then conciliatory; then apologetic. The lawyer for the chief architect of the scheme now ruled unconstitutional says it means his client is still a Senator.
But, is that possible? There are eight opposition senators duly appointed under the Constitution and former Senator Williams is not one. That the current opposition senators were duly appointed is beyond peradventure because former Senator Williams applied to the Court for an injunction to prevent their appointment and the court refused his application. So, where will former Senator Williams sit? In Nigel Clarke's lap?
Why's nobody considering the possibility that the ruling, albeit in force until overturned, is wrong? One media giant suggested we should have "respect" for the Court's decision. Yes, respect is due. Obsequiousness is not. Shouldn't we also respect the decision not to prevent the new senators' appointment?
One of the key indicators that this court erred is understood best by a simple non-legalistic analysis. What's the Supreme Court's job? It's to resolve legal disputes. The mere fact that so many learned persons have so many differing views as to the effect of the Court's decision tells me the dispute has NOT been resolved. This, in my humble opinion, is a sure sign something's cockeyed somewhere.
SILENT ON DISMISSAL
In its reasons, the Court was at pains to emphasize the Constitution is silent on the dismissal of Senators. In taking that to mean Senators couldn't be dismissed, one Judge inferred, as a matter of "public policy", that " … the high ideals, principles and values that the framers of the Constitution intended for the Senate are a measure of security of tenure, independence of deliberation, i.e. freedom to debate, separation of powers in the legislature, check and balance of powers within the legislature."
Gosh. Where's THAT in the Constitution? The Constitution includes nothing about "security of tenure" or "independence of deliberation". Nary a whisper. No hint. Modern Judges have long since stopped trying to deduce lawmakers' "intention" and prefer to interpret the words used as properly expressing their intent. If not, lawmakers can always pass another law.
But some history is helpful. One thing that's pellucid in Caribbean Constitutions including Jamaica's is the framers' determination to entrench the two-party system. These Constitutions are unique in that they recognize political parties and create a constitutional officer called the Leader of the Opposition.
The Senate was created and the 13/8 division of appointments made with protection of the two-party system in mind AND to ensure that no deeply entrenched clause could be altered without both parties' consent. Thus, the framers ensured the perpetual relevance of BOTH political parties and protected Jamaica from fundamental constitutional changes by a misguided but populist government able to secure a 2/3rds majority in Parliament.
Edward Seaga himself implicitly recognized this when, in 1983, after the PNP boycotted his snap election and the JLP "won" all elected seats, he held the power to appoint all 21 Senators. Yet, proving he's a supreme patriot, Seaga appointed eight "independent" senators. By that method Seaga arrogated to himself the awesome responsibility so casually abdicated by Michael Manley which was to protect Jamaica from one-party statehood.
It's the Leader of the Opposition ALONE entrusted with this solemn obligation to the Jamaican people. He/she MUST ensure we're protected against governments who may wish to make irrational changes to the Constitution because of ideology or even theology. Suppose government with a 2/3rds majority in the lower house passes a Bill preventing women from attending schools and the Opposition Leader suspects a male Senator with Fundamentalist sympathies plans to give government the 2/3rds vote needed to make that nonsense law. What's he to do? Should he put up his feet and say "Oh well, there's no constitutional provision allowing me to dismiss so what will be will be"? That'd be an egregious abrogation of his solemn duty to the Jamaican people.
If Opposition Senators can't be dismissed, there's no protection from any unscrupulous or vulnerable opposition senator participating in an unconstitutional plot to create a one-party state. So, regardless what the law says, as a matter of "public policy", this decision must be wrong.
In law, public policy isn't judicial policy it's political policy for the protection of public values. The best definition of "public policy" is it's a principle that no person or government official can legally perform an act that tends to injure the public. It should manifest the common sense and common conscience of citizens as a whole and can't be picked out of the air. Anything endangering our two-party state is against public policy. The concept of Senator-for-life-of Senate endangers the two-party system; is injurious to citizens' freedoms; and contrary to public policy.
Was Arthur Williams dismissed? It's my view that he resigned. He could've refused to sign the letter. He not only signed it, he wrote it. His was a completely voluntary resignation leaving Young Andrew to decide only its timing. The letter expressed no other contingency.
But, ok, let's say Williams was dismissed. Any law, including the Constitution, granting a power to appoint includes a power to dismiss. It's the Opposition Leader who makes de facto Senate appointments (the Governor General has no discretion) hence he can dismiss. The Interpretation Act, section 35 makes this clear.
"35. Where by or under any Act a power to make any appointment is conferred, then, unless the contrary intention appears, the authority having power to make the appointment shall also have power to remove, suspend, reappoint or reinstate any person appointed in exercise of the power."
I've heard lawyers who should know better say this doesn't apply to the Constitution which isn't an "Act" but an Order by Her Majesty in Council. Her Majesty has no authority over Jamaica's independent parliament before whom the Order in Council was laid and ratified on July 24, 1962. Since then, Jamaica's Parliament has often amended the Constitution. Is it that the Interpretation Act applies to those post 1962 amendments but not to the rest of the document? C'Mon man!
NO NEED To STRESS
Anyhoo, we don't need to stress our brains too much about this. Section 1(12) of the Constitution itself provides:
"The Interpretation Act, 1889 as in force on the appointed day, shall apply, with the necessary adaptations, for the purpose of interpreting this Constitution … ."
So, the Opposition Leader is within his rights to dismiss Senators or to advise the Governor General to do so.
Instead, we have a court decision that creates confusion and absurdity. Former Senators who voluntarily resigned are allowed to successfully challenge their own actions. As a result, lawyers are contending that former Senators whose seats have become automatically vacant for absence beyond the permitted time [Constitution; section 41(1)(c)] are still Senators. One lawyer wildly proposed that two Senators duly appointed (if for no other reason than the court expressly refused to prevent the appointments) must leave and make way for those who voluntarily resigned. Fortunately, the Court made no such order and persons can't be unseated by inference. Wrongful dismissal is one thing; re-instatement another thing entirely.
A lawyer quoted a Privy Council decision to support an insightful argument that a void action is void. Then he cheerfully extrapolated to essay that duly appointed senators "were never appointed". Oh dear. The Privy Council in McLaughlin v Cayman Islands were dealing with an Administrative Officer in the Ministry of Agriculture who was "dismissed" (retired) wrongfully. The dismissal was held to be null and void. The Privy Council concluded:
"It's a settled principle of law that if a public authority purports to dismiss the holder of a public office in excess of its powers, or in breach of natural justice, or unlawfully..., the dismissal is, AS BETWEEN THE PUBLIC AUTHORITY AND THE OFFICE-HOLDER, [my emphasis] null, void and without legal effect."
Obviously, this doesn't mean intervening third party rights can be ignored and the officer whose dismissal is null and void automatically re-instated. The Privy Council explained:
"Mr Lynch also pointed out that even where a dismissal is invalid the court doesn't necessarily hold that the officer has remained in office throughout. This again is so....Since public law remedies are, for the most part, discretionary, it necessarily follows that a claimant may be disabled from obtaining the full relief he seeks whether on grounds of lack of standing, delay or his own conduct, or grounds pertaining to the facts of the particular case."
One more time. All together now. Wrongful dismissal is one thing. Re-instatement another. Former Senator Williams is entitled to receive all his lost salary until the end of the Senate term. Wait a minute. Senators aren't paid. Oops.
If the scheme of letters were unconstitutional, the former Senators were complicit in that unconstitutionality. Is it fair that they should now benefit from their own wrongdoing to the detriment of two Senators who've done nothing wrong? The only way they can return to the Senate is if Senators resign and Young Andrew re-appoints them.
Peace and Love.
Gordon Robinson is an attorney-at-law. Email feedback to email@example.com.