Tuesday, February 10, 2015

Unconstitutionality: Holness not alone

The public debate has focussed primarily on the declaratory order of the Constitutional Court that the Leader of the Opposition has acted contrary to the Constitution, contrary to public policy, and unlawfully.The Leader of Her Majesty's Loyal Opposition is an office that is recognised by the Constitution of Jamaica. Indeed some would argue that it is a creature of the Constitution.

 Not JLP Leader:
Note that the Leader of the Opposition is not synonymous with the head of the political party that  forms the minority in the House. In Jamaica's political history, the Leader  of the Opposition has been someone other than the head of the respective political party. This is due to the fact that  (i) the Constitution does not recognize political parties and (ii)  the head of political party that the majority of the members not supporting the Government did not have a seat in the Lower House at that point in time.

There should maybe some confusion between the Leader of the Opposition and the head of the Jamaica Labour Party which has the party title : "Leader". For some the distinction may be a little challenging as the constitutional office of  the Leader of the Opposition has been occupied by the Leader of the Jamaica Labour Party for significantly greater periods of time than the President of the Peoples National Party.

The fraudulent scheme  had a number of actors along with the principals Williams and Holness.
For example:

  • Other attorneys-at-law were consulted and participated in the scheme. One noted Attorney acted in the capacity of Justice of the Peace, witnessing the signature on the pre-signed undated letters as well as the signed dated letters. 
  • Some of the the persons that were nominated by the Leader of the Opposition to be appointed Senators and who acceded to the unconstitutional and unlawful request were attorneys-at-law.
  • The Governor General  gave effect to the actions that have been declared by the Supreme Court as "unconstitutional, unlawful and contrary to public policy".
The Role of the GG:
Having received the documentation that purported be be the resignation of the two Senators involved, the Governor General would have at the very least (a) acquainted himself the the relevant sections of the Constitution of Jamaica dealing with such matters [Section 41 (1)]; and more importantly, (b) sought the opinion of legally trained members of the local Privy Council.

The public will never be made aware of the advice received by the GG: however, the receipt of the set of letters from the Leader of the Opposition could possibly have led to the presumption that they were authentic, lawful and in conformity with the Constitution. After all, the Leader of the Opposition had advised the GG on their appointment.

Without more, one cannot reasonably infer that Her Majesty's Representative in Jamaica  did not seek and receive legal advice on the matter; or  ignored the advice that was tendered. There is no evidence available that the Office of the Governor General ascertained from the two Senators affected if indeed they had the intention to resign at the time the letters were received at Kings House. [ Sec 41.(1) (b) --"if he  resigns his seat"]

But ignorance of the Law is no defence ; moreso ignorance of the Constitution by the GG. It may be argued that, similar to the Leader of the Opposition, the  Governor General acted on "bad legal advice". However, the GG had a greater responsibility than the Leader of the Opposition. Wittingly or unwittingly the GG was involved in the perpetuation of the fraud on the Constitution.

The GG was not a party to the suit filed in the Supreme Court. Nevertheless, the action of Her Majesty's Representative did not escape analysis.  McDonald-Bishop (J):

 "It would follow, then, that the defendant, as Leader of the Opposition, had no power under the Constitution to remove or to recommend the removal of an Opposition Senator from the Senate. Therefore, the Governor-General would not have had the power, express or implied, to remove the claimant on the advice of the defendant or at his behest, which in effect, was what transpired in the circumstance of this case."

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