Sat | Dec 3, 2016

'undated letters like a guillotine over senators' heads'

Published:Tuesday | July 22, 2014 | 12:00 AM

TWO HIGH COURT judges yesterday raised questions about whether the creation of signed and undated resignation letters for appointment to the Senate places the interest of political parties ahead of the national good.

The questions by justices David Batts and Marva McDonald-Bishop came as the Constitutional Review Court began hearing the case brought by ousted Opposition Senator Arthur Williams against Jamaica Labour Party (JLP) leader Andrew Holness.

Williams, who gave Holness a signed and undated resignation letter prior to his appointment to the Senate, was removed from the Upper House last year after Holness dated the letter and presented it to Governor General Sir Patrick Allen.

Batts argued that such an arrangement places the 'office holder' under the control of the 'appointer' and questioned whether that was the intent of the Constitution.

"That letter would be like a guillotine over your head. So if you value your seat [in the Senate], you know what you have to do," Batts argued.

CONSTITUTIONAL ROLE

For her part, McDonald-Bishop questioned whether such a letter would force an appointee to act in accordance with the wishes of the political party making the recommendation for appointment.

"The party can take you to a point ... but the question becomes, what is their constitutional role ... ? Is it to carry on party politics, and if they don't, how do you remove them?" McDonald-Bishop questioned.

"We have to get to the nitty-gritty of the matter because it is of high public interest," she underscored.

The questions by the two high court judges came after Williams' attorney, Dr Lloyd Barnett, wrapped up his submissions in which he claimed the letters and the manner in which they were used were void and inconsistent with the Constitution.

Barnett claimed that the letters were submitted to the governor general because Williams did not support Holness' during last November's JLP leadership race and said this amounted to a contravention of the former senator's constitutional rights to freedom of conscience, association and expression.

In addition, Barnett asserted that at the time Williams gave Holness the signed resignation letter, he was not yet appointed as a senator and, as a result, "did not have the capacity to resign as a senator".

"Accordingly, the 'resignation' contemplated by the Constitution is one in which the senator personally makes the decision to resign and submits the instrument of resignation. There is nothing in the constitutional provisions which permits a third party to intervene in or take control of this process," he argued.

Barnett said even if Williams could have signed the letter prior to becoming a senator, "he would be equally entitled to withdraw his consent to the use of the document and repudiate its premature execution or unauthorised use".