Sun | Dec 4, 2016

PUBLIC AFFAIRS - Williams v Holness: a judicial defence of the Constitution

Published:Sunday | February 15, 2015 | 12:00 AM

Martin Henry, Contributor

Three cheers to three Cs: former senator Nigel Clarke, Member of Parliament Delroy Chuck, and the Constitutional Court within the Supreme Court of Jamaica.

Dr Clarke, widely praised for the quality of his contributions, in his last contribution to the Senate before being removed in the fallout from the ruling of the Constitutional Court, powerfully demonstrated how the Senate, at its best, should function.

With only five of 13 government senators present, with six for the Opposition, which has eight, during the debate on the Urban Renewal [Tax Relief] 2015 Bill on Thursday, February 5, leader of opposition business in the Senate, Tom Tavares-Finson, seized the partisan political opportunity to renege on a promise to support the largely non-controversial bill.

Four other opposition senators lined up with the leader to vote down the bill. Senator Nigel Clarke broke party ranks and voted his reasoned and reasonable conscience in support of the bill. His vote with that of latecomer Senator AJ Nicholson produced a 7-5 majority for the Bill.

Senator Mark Golding, the leader of government business in the Senate, lambasted the hypocrisy of talking about a new type of politics while practising the old.

And it is the practice of a species of old-type politics that has led to the landmark ruling by the Constitutional Court against the leader of the Opposition for using on-file undated letters to sack two senators, one of whom brought the suit against him.

The judgment of the court was released the day after Nigel Clarke had distinguished himself in the Senate. Following the ruling, Member of Parliament Delroy Chuck, not noted for speaking loudly or boldly, demanded "an urgent meeting of all opposition MPs to consider the matter".

Chuck boldly declared that "in the Westminster system of government, the leader of the Opposition would be obliged in all good conscience and honour to tender his or her resignation".

Things are moving fast, but, up to the time of writing, Derrick Smith has failed in his duty as leader of opposition business to call a caucus meeting of opposition MPs to determine if they are still prepared to support Andrew Holness as opposition leader who, to date, has not voluntarily tendered his resignation. But any opposition MP bold enough can do it.

What has been called is a meeting of the senior leadership of the JLP, including the MPs, essentially to line up party unity around Holness. Chuck has defiantly refused to attend and was misreported in the Observer as 'Delroy ducks - Chuck a no-show after calling for meeting of JLP MPs', which the meeting was not.

The Gavel of The Gleaner, rooting for Nigel Clarke in the Senate, is recommending that "at the very least, the Government should consider tabling a bill in the Parliament that would seek to validate and make lawful all actions done in good faith by Clarke and Reid during the unfortunate period brought upon us by Holness' ill-advised decision to resign Tufton and Williams". Not at all necessary, sir.

The Constitution at Section 51(2) takes care of that in wise anticipation. "... The presence or participation of any person not entitled to be present at or to participate in the proceedings of the House shall not invalidate those proceedings."

Ousted senator Arthur Williams approached the court alleging a breach of his constitutional rights under Section 13(3) (b), (c) and (e) of the 2011 Charter of Fundamental Rights and Freedoms. Freedom of thought, conscience, expression, peaceful assembly and association, and so on.

Section 19 of the charter, under which Senator Williams acted, sets out at length "application for redress" through the Supreme Court.

A critical role of the Supreme Court is to interpret laws and to ascertain if subsidiary laws are in conflict with the supreme law of the Constitution.

Arthur Williams, who had foolishly been collaborator in the resignation letter scheme and had served as drafter, was smart enough to retain Jamaica's leading constitutional and human-rights lawyer, Dr Lloyd Barnett, as counsel. The mismatch in counsel was huge. The justices even cited Barnett's own work on constitutional law in their judgment!

TWO WRONGS, NO RIGHT

Barnett had opened up his submission to the court on behalf of Senator Williams baldly stating that his client had acted unwisely and was wrong in law to have prepared the letters of resignation. But as my mother of blessed memory, in her simple legal wisdom, often reminded, and Barnett argued, "Two wrongs don't make one right."

Citing in full Section 41 of the Constitution concerning "Tenure of office of Senators and members of the house of Representatives", the justices unanimously agreed that "there is no provision for the appointee's removal by either the appointer [the GG] or of the official who recommended his appointment [leader of the Opposition]".

Dr Barnett put before the court, and the justices accepted, that whereas the 1959 constitution of pre-independent Jamaica allowed the removal of a member of the Legislative Council by the governor, acting on advice of the premier, the Independence Constitution made no such provision, although closely modelled on the 1959 Constitution.

This, counsel argued and justices agreed, "is confirmation, if such is necessary, that the framers of the Constitution of 1962 did not intend for the appointer or the person making the recommendation to have the power to remove persons from the Senate once validly appointed".

Therefore, "any step by a person or persons to give themselves the power to remove a Senator who has been validly appointed will be unconstitutional. An arrangement whereby the leader of the Opposition holds pre-signed letters of resignation and authority to use them is against public policy and ... would serve to degrade the institution of the Senate."

The order of the court says, "The court hereby declares and orders as follows: (1) The request for and procurement of pre-signed and undated letters of resignation and letters of authorisation by the leader of the Opposition ... is inconsistent with the Constitution and ... is null and void.

"(2) ... The ... letters ... as well as the manner of their use to effect the resignation of Senators ... are inconsistent with the Constitution, contrary to public policy and are ... null and void."

This is an enormously important precedent judgment in defence of the Constitution and a government of laws and not of men, which, steeped as we are in the dominance of party politics, may not be immediately obvious. It is vital to protect the security of tenure and independence of both elected and appointed parliamentarians from the tyranny of any political party to which they may choose to be affiliated and to give their guarded loyalty.

Arthur Williams, having won his case, performing valuable national service in the process, should preserve what is left of his dignity and credibility by now voluntarily resigning from the Senate. Opposition parliamentarians should perform their constitutional duty in the present situation by reaffirming their support for Andrew Holness or indicating to the governor general their support of an alternative leader. Holness' own decision to resign or not to resign is constitutionally immaterial.

Martin Henry is a university administrator. Email feedback to columns@gleanerjm.com and medhen@gmail.com.