Sunday, February 8, 2015

Holness vs The Constitution of Jamaica

The  Constitution recognises only one member  of those not supporting the Government. That individual is designated as  "Leader of Her Majesty's Loyal Opposition". As such he/she is a creature of the Constitution of Jamaica and is sworn to uphold that fundamental document in pursuit of certain specified functions.

The Supreme Court of Jamaica has found in a unanimous declaratory order that Andrew Holness has acted 
a) inconsistent with the Constitution,
 b) contrary to public policy, and
 c) unlawfully. 

That would not be of national importance if Andrew Holness was an ordinary member of the public, even a John Doe. It would only attract the  cursory  interest if he was only an Opposition Member of Parliament.

But Andrew Holness is the Leader of Her Majesty's Loyal Opposition.

Interesting Questions:
  • Can he maintain that lofty and constitutionally important position if those findings are allowed to stand? 
  • Are those findings by a court of law ip so facto disqualify Andrew Holness from continuing to hold such a constitutional position? 
  • Is it within the spirit of the Constitution of Jamaica  that the Leader of the alternate governing party be one who --- whilst occupying that constitutional office ---- was found by a court of law to have been acting unconstitutionally, contrary to public policy and unlawfully ?
The Leader of the Opposition is accorded no role in the resignation of a member of the Senate. In legal terms he has no locus standi. This contrasts with his specified role in advising the Governor- General as to persons he wishes to nominate to the Upper House.

Discussion Points:
  • It is of no import that Holness "did not intend to act unconstitutionally". The fact is that a Court of law has found that he did act unconstitutionally.
  • Holness may gain mere sympathy for placing reliance on a group of attorneys who gave him bad advice resulting in what "can only be described as the ill-conceived and nonsensical terms of the letters...."[para 154]. 
  • Latest reports  are interesting : "Underscoring the significance of the ruling, Holness reiterated that he has referred it to a team of attorneys to research and advise him on any implications it may have on the country’s constitutional arrangements"
  •  One can only hope that it is not the same group, without Williams, that is now tasked with advising the Opposition Leader: 
  • That Arthur Williams was found to have designed, signed and delivered the letters to Holness may have been central to the Court's decision not to award him costs (which usually follows the successful); but in no way absolves Holness from the unconstitutionality of his actions.
  • The Supreme Court has found that the pre-signed undated letters  that Holness had requested were "null and void". Holness has said that he had returned the letters long before the Supreme Court ruling. The return is of no moment. He should not have requested them in the first place. 
  • Moreover, Holness as Leader of the Opposition had no business communicating with the Governor General in the matter of the resignation of members of the Senate. Indeed, the Governor General should have ignored the correspondence. At the very lest, the involvement of the Leader of the Opposition should have raised "red flags".

  • The Court of Appeal has dismissed the appeal of the Leader of the Opposition which sought to overturn the ruing of the Constitutional Court. ( See our Holness' Appeal Dismissed )

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