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?

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

1 comment:

Anonymous said...

1. I was almost sure the Constitutional Court declared the letters void from the get-go so they were likely void abnitio

2. Public policy is clearly that of Jamaica within the wider Commonwealth and Common law areas

3. Most of the talking points regarding the Senate are nonsensical in that (unlike some other constitutions including some in the Caribbean if I am not mistaken), the Jamaican constitution makes no mention of or provisions for political parties. Not once is "political party" mentioned in it. Some people talk about how it was clearly intended for a two party system but that's rubbish because there is literally nothing in the constitution which bars a bunch of independent MPs from coming together and electing either the Leader of the Opposition or the Prime Minister if it is that the group of independent MPs happens to form the largest group of MPs for the purposes of electing the Leader of the Opposition (i.e. the second largest group after a majority has elected the Prime Minister) or the Prime Minister (i.e. the largest group of MPs in parliament whose confidence can be commanded by a particular individual who can be appointed Prime Minister)

So there is no provision for a Senator crossing the floor because there isn't a provision for any MP to cross the floor simply because it was never intended for either chamber to be a House of Parties but a House of representatives (note the use of the small "r" in representatives). And by this they either represent their constituents first and foremost or in the Senate they are supposed to represent the best interest of Jamaica as a whole and to do so by thinking and being able to think independently and not based on what they are told to think by others (if it was otherwise then the Senate would be a grand waste of time and money and Jamaica should simply have a unicameral parliament and just require that the Prime Minister and Leader of the Opposition agree on changes to the constitution which now require the approval of two thirds or three fifths of the Senate)

And just because a Senator is nominated by the head of a political party in reality doesn't mean that Senators were intended to be nominated by political parties. They are nominated by individuals who more often than not head political parties but these individuals don't have to head political parties. For example say in 2016/2017 an election is held where the seats won in the House are thus: PNP - 40; JLP - 9; independents - 14. The PNP MPs would nominate the President of the PNP (assuming that person won a seat) to become Prime Minister. However it would be the 14 independents who would ultimately be responsible for nominating the Leader of the Opposition since for Andrew Holness to become Leader of the Opposition he would need the support of 12 MPs - presumably 9 from the JLP including himself and 3 other independent MPs. If though he only gets the support of 10 MPs (9 JLP and 1 independent) and the the other 13 MPs decide to nominate one from among themselves as Leader of the Opposition then the Governor General will not appoint Andrew Holness as Leader of the Opposition and the new Opposition Leader would not be the head of any political party and would be given the sole right to nominate 8 Senators to the Governor-General. This person could then go on to nominate 8 persons with varied views, some of whom may from time to time agree with the 13 Senators appointed on the advice of the Prime Minister.

As you yourself wrote in another post, the positions of Leader of the Opposition and Leader of the JLP are actually separate. And the way the constitution is written it is clear that the drafters did not intend that the position of Leader of the Opposition or Prime Minister be AUTOMATICALLY held by persons who are leaders of a party (again because nowhere in the constitution are political parties actually mentioned)