I know that many of us don’t fancy politics these days. It is perceived to be inefficient and filled to the brim with deceit, corruption, nepotism and narcissism. However, while you take time out of your busy schedule to pay this article your attention, it is necessary to bring you to that political discussion for a minute, as this discussion brings into account our constitutional law and its importance in our political life. This article will explore the current controversy regarding the Senators that were deposed, the new ones that were substituted, and a brief look at the constitutional law in general. So take a deep breath, grab a cup of your favourite beverage if you can, and read these words, which reflect my own thoughts and not those of the Mona Law Precedent, the Mona Law Society and the UWI Mona Faculty of Law.
The Facts In a Brief Summary
In February 2015, The Supreme Court ruled that Opposition Leader Andrew Holness acted unconstitutionally and unlawfully in creating pre-signed and undated resignation letters on all of his Opposition Senators and eventually dating two of them and submitting them to the Governor-General to effectively fire Arthur Williams and Dr. Christopher Tufton from the Senate. Dr. Tufton openly supported Audley Shaw when Mr. Shaw unsuccessfully challenged Holness for the leadership of the Jamaica Labour Party in 2013. Mr. Williams did not openly endorse any of the two men. After ousting those men from the Senate, Mr. Holness advised the Governor-General to appoint Dr. Nigel Clarke and Ruel Reid as Senators in their place. Mr. Holness, despite apologizing to the Tufton and Williams at a church service after the judgment was delivered, we have since learned that his attorneys have filed an appeal.
The Sanctity of the Senate
The Senate is not, in my estimation, the same as the House of Representatives. This statement is obvious on the face of it. But at a much deeper analysis of mine, the Senate is to be held at a much higher standard and, I dare say, in higher esteem than the House of Representatives. Let’s delve into this thesis for a while. The Constitution of Jamaica provides for the appointment of 21 Senators, 13 of which are to be appointed on the advice of the Prime Minister, and the remaining 8 on the advice of the Opposition Leader.
The House of Representatives is elected by the electorate and the number of members determined by the number of constituencies that are drawn. That makes the Senate more exclusive and much harder to get in. As a result of this exclusivity, the types of persons that have been appointed to the Jamaican Senate over the years have been known, for the most part, to be non-political beings. I recognize and concede that many of them have eventually developed the political bug and have used their positions in the Senate as a means to launch their political careers and run for elected seats in the House of Representatives.
There is nothing wrong with wanting to go further into political service. Even Dr. Tufton was one such person who left the Senate and joined the House of Representatives for one term. However, a majority of the persons that have been appointed to the Jamaican Senate have been non-political (at the start, at least) and have been appointed to the Senate because of their prowess in their particular career field, be it business, law, education and academia, etc.
The Senate is normally known to be a review chamber for the pieces of legislation that come through the House before being sent to the Governor-General for his assent. In addition to being the review chamber, Senators are also known for providing more intellectual analysis to the laws and to use such acumen in their chosen fields to guide their discussions. From my standpoint, I am pleased generally with the conduct of our Senate. They are much calmer and more analytical in their deliberations and they are much slower to be angered because of promoting their party’s position on the issue at hand unlike their Honourable colleagues in the House of Representatives.
Very rarely has the Senate really erupted because of a strong difference of views on a particular issue, whereas one cannot pay a visit to Gordon House for a House sitting without considering bringing a pair of earplugs. It is of interest to note that between 1983 and 1989, when the People’s National Party was not represented in Parliament and there was no Leader of the Opposition, Prime Minister Edward Seaga appointed 8 “independent” Senators to provide the balance that was needed at the time, as a means of providing that same intellectual discussion that the Senate was renowned for at that time.
Therefore, it is my view that the reasonable person would view anything that would hinder the Senate in its function or anything that taints the sanctity of the Upper House as undesirable and unbecoming. The Court has gone even further and has interpreted that it is also unconstitutional based on the legal reasons given in its judgment.
The Politics of Letter Writing: Holness’ Folly Punished
Mr. Holness has put forward in his defence that he did not intend to use the letters to resign the Senators based on the leadership race. Instead, he claimed that he composed these letters to be used against the Senators in the event that any of these Senators should break with party lines to vote with the government side to adopt the Caribbean Court of Justice as Jamaica’s Final Appellate Court.
The Bills are now before Parliament. Even in spite of the Jamaica Labour Party’s position that the acceptance of the CCJ can only be done through a referendum (although the constitution does not require it for lack of deep entrenchment), do such letters make appropriate sense to be used at all? I cannot possibly imagine that one could be threatened, let alone fired from the Senate, the Upper House, for such pronounced, politically motivated reasons.
What Mr. Holness has done was wrong. His actions have tainted the sanctity of the Senate and his actions have displayed a great deal of recklessness and political maladministration on his part. It has impaired the judgment that Senators ought to have in dealing with the issues of national importance from an intellectual perspective.
The Legal Effect: Standing of Senators
It is unfortunate that the entire saga had to end this way, but based on what the Court has said, the letters and their usage was unconstitutional, I believe that Williams and Tufton are still Senators. They did not resign. It is rather unfortunate to see Nigel Clarke and Ruel Reid go like this. Those men proved to me what the ideal Jamaican Senate ought to be. Their contributions to the discussions in the Senate illustrated perfectly the kind of intellectual acumen that the Senate is known for and should continue to embrace in the future.
There’s nothing really more to add at this point. I wish I could, and perhaps I will in a Precedent follow-up, but being that Mr. Holness has filed an appeal, the matter is once again sub judice.
However, it has allowed our Constitutional law to stand more tests in the Court, which I am surely grateful for. It is my hope that the interests of the Jamaican people, and not Jamaican politics, will be served.
©Markel A.O. Virgo 2015
Mona Law Precedent Contributor
MLS Publications Committee Member