Constitution vs skulduggery

Edward Seaga, the sole surviving constitutional crafter  in his usual candor declares that Andrew Holness, Leader of the Opposition should go to the Privy Council for a proper ruling on the undated resignation letters debacle.

He finds backbone for his assertion (which is without much company now) in his view that the framers of the constitution contemplated that the Senate groups would vote en bloc and therefore provide a fetter for government power when necessary. He says further that no independent thought is contemplated by any single senator. All thoughts and votes especially should be in line with the party position – forget freedom of conscience.

Incidentally these arguments are not new. They were put to the Court of Appeal by Mrs. Gibson-Henlin, one of the lawyers for Andrew Holness.  The court summarizes her submissions thus – “Mrs Gibson-Henlin contended that appointments to the senate are based on partisan representation. In this context, it is artificial to speak of the independence of the senate in a vacuum. This was so because a strong cohesive opposition is required in the senate for veto purposes”.

Her submission was not left unanswered. The Honourable Mr. Justice Panton, President of the Court of Appeal answers the submissions in this way – “it may be in the minds of some persons a good political argument but it does not help in determining the validity of the letters in questions”.

The Senate, Justice Panton says “is a very important part of the machinery in this country. The constitution makes it so. Good governance requires mature deliberation on legislative measures. Each senator is expected to give conscientious thought to every topic that comes before the senate for discussion and vote. Every member of the senate takes an oath to be faithful and bear true allegiance to Jamaica, to uphold and defend the constitution and the laws of the Jamaica and to conscientiously and impartially discharge his or her responsibilities to the people of Jamaica”.

The President declares further “the responsibilities are to the people of Jamaica not to an individual not to a club group or section of Jamaica. In view of that oath, it would be against the spirit of the constitution if one were to bind one’s conscience otherwise”.

Whatever the political machinations of legislators happen to be, they have a duty to the people they serve to ensure that they draft statute that when interpreted by the judiciary will have the meaning they intend. Their words must therefore be clear and precise so as to prevent ambiguity or confusion in interpretation. Nothing in any of the sections relevant to this discourse remotely allows for the interpretation Mr. Seaga has placed on the constitution and the role of the senate. As the learned President of the Court of Appeal says “that may be a fancy political argument but nothing more”.

That Mr. Seaga recalls that the intent of the legislators as communicated to the drafters was to have senators vote en bloc is not discernible from the clear wording of the constitution. Additionally I would not now place great reliance on Mr. Seaga’s memory as he has encouraged Mr. Holness to take the matter to the Privy Council when the said constitution provides that in matters of this nature, the decision of the Court of Appeal is final.

I have questioned as well whether if that is the understanding of leaders as to how the senate should operate then why would there be a need for any undated resignation letter? The various leaders could simply strongly impart that message to the people they select for recommendation to the Governor General.

Insecurity of the mind whether brought on by real or imagined or feared events or personalities can cause all kinds of schemes to be created or used. The creation and/or the need for the creation and use of undated letters of resignation by Andrew Holness is/are the product of insecurity of person. They were meant to keep all senators in terror and to make them excessively submissive to their nominator even if made no sense to do so.

These decisions by the constitutional court and the court of appeal should be hailed as a triumph of the constitution over political skulduggery.


About emilyshields

Attorney-at-Law, Partner -Gifford Thompson & Shields; Broadcast Journalist; Host of RJR's Hotline -; Gunner Twitter- @emilymshields
This entry was posted in Constitution and Jamaica, Undated Letters of resignation and tagged , , , , , . Bookmark the permalink.

One Response to Constitution vs skulduggery

  1. Grasshopper says:

    How Senators may vote and how they are appointed and removed are separate issues. You can appoint partisans but whether they are kept or dismissed is still not at the behest of those who nominate (party leaders).

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