Thursday, March 26, 2015

Holness’ Appeal Dismissed

                                      Summary of Interesting Highlights

The Court of Appeal has dismissed the appeal of the Leader of Opposition in the House Of Representatives. Andrew Holness was seeking a reversal of the order of the Full Court ( Daye, McDonald Bishop and Batts JJJ) made on 6 February 2015.

By that order, it was declared that:

“1   ….the request for and procurement of pre-signed and undated letters of
resignation and letters of authorization by the Leader of the Opposition from persons to be appointed as Senators to the Senate of Jamaica, upon his nomination, is inconsistent with the constitution, contrary to public policy, unlawful, and is, accordingly null and void .

2   ….the pre-signed and undated letters of resignation and letters of authorization, as well as the manner of their use to effect the resignation of Senators (  the claimant in particular ) from the Senate of Jamaica, are inconsistent with the Constitution, contrary to public policy and are, accordingly, null and void”.

Some 16 grounds of appeal were filed.

The Panel comprised of Panton (P), Dukharan (JA) and Brooks (JA) and is listed as Supreme Court Civil Appeal No 22/2015 delivered on 25 March 2015.

Panton (P):

[44]   It is my view, therefore, that the Full Court was correct in ruling that the letters of resignation were inconsistent with the Constitution, and so null and void. The legal and constitutional position is that the respondent and Dr Tufton did not resign. They are therefore entitled to retake their positions in the Senate.

Brooks (JA):
[125]    The Full Court was correct in finding that the demand for pre-signed letters of resignation was unconstitutional and invalid. Similarly the use of those letters without the consent of the persons who had signed them was also invalid. Consequently, the letters of resignation that were delivered to the Governor-General by Mr Holness in respect of Mr Williams were invalid and ineffective. The appeal by Mr Holness should be dismissed.

Dukharan (JA):

[47]     I have read in draft the judgements of the learned President and my brother Brooks JA and agree with their reasoning and conclusions. I have nothing to add. 

Thursday, March 5, 2015

Why Holness had to Appeal

There has been considerable public debate about the Leader of the Opposition, Andrew Holness, decision to appeal the Declaratory Order of the Constitutional Court in the Matter of Arthur Williams v Andrew Holness.

In an attempt to expedite the matter, the President of the Court of Appeal, Seymour Panton, has set March 16-17 for the hearing, pushing aside other appeal cases. Such recognises the urgent public interest that attends this constitutional matter.

Some have argued that the Leader of the Opposition should just accept the judgement, allow the offended Senators to resume their seats, and unreservedly apologise to the public of Jamaica.
Thus this political distraction would fade away as the JLP focuses on matters central to the welfare of the electorate and mobilizing for an electoral victory.

 In sum, it is not in the interest of the JLP to have this Senate imbroglio occupy public space for a protracted period of time.

Political Legacy:

Andrew Holness has a different perspective. It seems that the decision to appeal is primarily driven by sensitivity to political legacy:
·      Andrew Holness is the youngest person to date to occupy the office of Prime Minister of Jamaica.
·      He may also have the unenviable distinction of being the Prime Minister serving the shortest period of time.
·      Andrew Holness would not want history to record that as Leader of Her Majesty Loyal Opposition he was found by a Court of law to have acted inconsistent with the Constitution, contrary to public policy and unlawfully

Thus it is not particularly troubling the findings:
·      The pre-signed undated letters were null and void—ie of no legal effect; or
·      The Leader of the Opposition has no role whatsoever in the resignation or removal of a Senator whom he had nominated.

The most troubling aspect is the finding that as Leader of Opposition he acted inconsistent with the Constitution, contrary to public policy and unlawfully.

 Opposition MP Delroy Chuck has pointed out:

"In the Westminster System of Government, any constitutional office holder - be it Prime Minister, Leader of the Opposition, Speaker of the House, Chief Justice or others - who the court rules or declares to act UNLAWFULLY and UNCONSTITUTIONALLY would be obliged in all good conscience and honour to tender his or her resignation unless there are good and compelling reasons not to do so.”

Now if there is an expectation of such consequence for transgression from a constitutionally recognized office-holder, then would not such constitute a bar to the offender being elevated to the office of Prime Minister?

It should be noted that there is nothing in the Constitution of Jamaica that stipulates the circumstances in which the Leader of the Opposition should resign or vacate that office. However, there are provisions dealing with the removal/disqualification of a Member of Parliament.

Higher Stakes:

In selecting the option to appeal the decision of the Constitutional Court Andrew Holness has raised the political stakes to a higher level. His political judgement is now on the front burner.

He can no longer offer the excuse of “legal advice”. As a political leader he is expected to consider the political ramifications of all his actions. Legal advice can be bought and paid for.

It is critical that Holness has a considered plan in the event that the Court of Appeal dismisses his case and reaffirms the orders of the Constitutional Court in the same trenchant language—unconstitutional, contrary to public policy and unlawful.

In that event it will be a heavier political price to pay. The rather limited calls for his resignation as Leader of the Opposition could morph into widespread calls for his resignation as Leader of the Jamaica Labour Party.

 Some Talking Points:
·    That it was a unanimous finding by all three judges is of little moment. They can be unanimous in error.
·    The pre-signed undated letters were all declared null and void—of no legal effect. Were they such at the time of them being signed? If so they would have been void abnitio.
·    Who purported to give legal effect to such a nullity?
·    Is there an inescapable linkage between unconstitutional, contrary to public policy and unlawful?
·    Is the “public policy” that of Jamaica, the Commonwealth or Britain?
·    Where can one find a copy of that “public policy”?
·     If an action is “unconstitutional” is it also “unlawful?
·    Regarding the Senate: a) What is the purpose of the 2/3 and                                                 3/5 provisions?
·    b) Why is there no provision for a Senator to cross the floor?
·    c) What mechanisms are there to ensure that a Senator does not flout party lines perpetually during his term of office? 
·    d) If the Senator is expected to be “independent” of political partisanship, then why is he nominated by the head of a political party in reality?
·    e) Can the “nominated” Senate frustrate the will of the peoples “elected” representatives in a democracy?

Andrew Holness gives his own reasons why he had to appeal. See"Holness:My court appeal was in the public's interest"

Wednesday, March 4, 2015

Simpleminded Senatorial Stupidity

 The response of the Senate—the Upper House—to the Declaratory Order by the Constitutional Court in  Arthur Williams v Andrew Holness  [ Claim No. 2012 HCV 06428] is nothing but sheer stupidity.

The gist of the findings were a) that the pre-signed undated letters were null and void—ie of no legal effect; b) the Leader of the Opposition has no role whatsoever in the resignation or removal of a Senator; c) Arthur Williams and Christopher Tufton did not resign.

The implications are crystal clear: i) Williams and Tufton are still members of the Senate; ii) Nigel Clarke and Ruel Reid were never duly appointed as there was no vacancy.

It is not a complicated matter, even though the JLP could have done with a few more Senators. That too would have been inconsistent with the constitution, contrary to public policy, unlawful and, accordingly, null and void.

Enter the Senate President:

The Senate President could have simply welcomed Williams and Tufton and continue the business at hand. But no; he seemed to have been aware of the press release by the Leader of the Opposition stating that the Declaratory Order does not change the composition of the Senate.

Then the AG:

The President takes it on himself to request a legal opinion from the Attorney General.
·      What authority did the President of the Senate have to request such legal advice?
·      Can the President of the Senate formally seek the advice of the Government Legal advisor?
·      The Attorney General is a member of the Lower House. Can a member of the Lower House give binding advice to the Upper House?

The Learned Attorney General acceded to the request of the President, even though he should have politely declined. The opinion was that Williams and Tufton were still members of the Senate—same as the gist of the Declaratory Order.

But in an attempt to show some familiarity with the Constitution, the Queens Counsel (silk) pointed out, quite correctly, that matters dealing with membership/vacancy  in the Parliament are to be determined by the Supreme Court with the Court of Appeal being the final arbiter.

Stupidity on steroids:

This is where the confusion takes on steroid proportions. Messrs Clarke and Reid did not officially claim that they were duly appointed and seek to take their seats. Williams and Tufton turned up and were allowed to resume their seats.
·      The President then refuses both Senators permission to speak. So if they had to cast a vote only hand signals would have been permitted. Presumably, in this age of digital technology they could have sent an iMessage or email.

To compound the ludicrous misadventure the Senate passed  a motion moved by the Leader of Government Business ( himself a Queens Counsel and former Attorney General ) which seeks to petition the Supreme Court to clarify the position of not only Williams and Tufton but that of Reid and Clarke.
·      Now these legislators of the Upper House—the so-called review chamber who are supposed to bring wider considerations to bear on the raw partisanship of the Lower House—considered it appropriate to petition the Supreme Court to clarify an Order of the Constitutional Court.
·      The Constitutional Court is The Supreme Court. Did these learned gentlemen expect that since both Courts are on the same level, one could overturn the judgement of the other on the same set of facts?
·      The ruling and reasoning was in very clear language. Indeed all three judges were at pains to elaborate in unambiguous terms. All three used standard English.
·      How did the position of Clarke and Reid enter into the picture when the President had admitted into the chamber Williams and Tufton?

Another QC:

Then with the involvement of another Queens Counsel (silk), the Leader of the Opposition is joined in the suit as he has "an interest to serve".
·      What interest does the Leader of the Opposition have in a petition from the Senate seeking to clarify a ruling of the Constitutional Court?

Court of Appeal:

The Leader of the Opposition has filed an appeal. Thus the same matter is before the Supreme Court and the Court Of Appeal. This has been described by another silk as a "messy affair".
The Supreme Court has in effect refused to hear the matter before it and has suggested that the Court of Appeal is that appropriate forum to ventilate the matter. [ The President of the Court of Appeal has set March 16 and 17 for the hearing of the appeal]

It may be political correct to label the machinations of the Senate as "unfortunate" or "an abuse of process". In case such is in need of clarification it was sheer stupidity-- unadulterated rubbish. 
To borrow the terms  McDonald- Bishop (J) used in describing the pre-signed undated letters, it was "ill-conceived and nonsensical"[ para 154]. In the words of a retired Appeal Court judge, the intervention of the Senate was "nonsensical and not necessary."

Simpleminded Senatorial Stupidity swathed in silk!

It has been reported that the application filed by Queen's  Counsel Michael Hylton using the wrong procedure was adjourned without a date. 
Words used in The Jamaica Observer report included "Big Blunder", "embarrassing blow", "wrongly instituted".