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!

Update:
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". 















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