Sunday, April 20, 2008

Communication Error!

Jamaica Gleaner Contributor, Martin Henry has written an interesting article entitled “Victory for the rule of law” published on Sunday, April 20, 2008. In his last paragraph Henry stated:

"A troubled citizen's concerns about the legitimacy of laws passed in the past with the participation of MPs who may have been in Daryl Vaz's dual-allegiance position was published as The Letter of the Day by The Gleaner last Wednesday [April 16]. Lawyer Dr Paul Ashley made a great deal out of the same issue when we both appeared on the TV programme Impact on that same day. The Constitution dissolves these fears in the wisely anticipatory provision of Section 51 (2): "The presence or participation of any person not entitled to be present or to participate in the proceedings of the House shall not invalidate those proceedings."

Interpreting legal provisions is an exercise fraught with dangers, especially if one is not acquainted with the rules governing interpretation. Without indulging in the rather laborious legalistic details, it is probably easier to make the following points:

  1. The distinctions between a “person” and “Member” is critical as the “House” is not a place (not Gordon House), but an institution comprising duly elected (being suitably qualified) Members in the case of Parliament and duly appointed (being suitably qualified) Members in the case of the Senate.
  2. The House must be properly constituted (as specifically outlined in the Constitution) before it can validly enact legislation, according to the procedures again outlined in the Constitution. For example there are provisions in respect of a quorum.
  3. Moreover, interpretation employed must not make the Section inconsistent with other provisions of the Constitution.

Henry’s position, as stated on Impact, is that Parliament does not need to police itself, for that is the role of the Judiciary. That position is in stark contrast to his interpretation of the so-called “wisely anticipatory provision”. The literal interpretation as applied by Henry would give rise to some questionable conduct since "presence or participation" could cover a myriad of circumstances. For example:

  • There would be no basis for judicial review of anything done in the House.

  • There would be no basis for the court to declare anything emanating from the House as unconstitutional.

  • The 1990 attempted coup by the Jamaat al Muslimeen in Trinidad when the Parliament was invaded during its sitting and Members held hostage would be covered under this Section. (Trinidad has a similar provision in its constitution)

  • There would have been no need for the House to have passed “The Ministerial and Parliamentary Functions (Phyllis Mae Mitchell) Validation and Indemnity Act 2007”.

The fears are exacerbated in the current political reality where the government enjoys a slim majority. There is widespread speculation that the separation of those members holding valid US passports could have severe and profound consequences for that margin. The fears are also justified when, for the vast majority of offending Members, there are no triable issues. It is a question of fact – they do not have to await a court decision or discovery. Maybe it is time for “Victory for Integrity”.

Respectfully the esteemed Communications Consultant has made a communication error. It would have been prudent to consult before communicating.


Anonymous said...

Dr. Paul your wit, wiles and wisdom on the political stage are welcome. Note Mr. Henry failed to refer to the entire section to wit:

S. 51 (2)Each House may act notwithstanding any vacancy in its membership (including any vacancy not filled when the House first meets on or after the appointed day or after any dissolution of Parliament) and 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.

There is case law in a commonwealth jurisdiction to support the view that Henry's interpretation would lead to absurdity if accepted. Your practical examples demonstrated this delightfully.

The constitution cannot be read and interpreted in a piecemeal fashion.

Anonymous said...

uh. attractive thoughts :)