Advice of the Attorney General on Issue of Opposition Senators

In yesterday’s post, I discussed the quandary that Leader of the Opposition Andrew Holness finds himself in following the judgment of the Constitutional Court last Friday. This afternoon, Attorney General Patrick Atkinson, Q.C. gave his advice and opinion on the matter. This is the press release he issued via the Office of the Prime Minister. For those of you who are interested in this topic, I think it will throw a great deal of light on the matter.

Attorney General’s Chambers, 2nd Floor, North Tower, NCB Towers, 2 Oxford Road, Kingston 5.

Tel: (876) 906-2414-6 Email: attorneygeneral@agc.gov.jm

PRESS RELEASE

February 12, 2015

Consequent on the decision of the Court in Arthur Williams v. Andrew Holness the following issues have been raised:

Whether the effect of the ruling is such that Mr. Arthur Williams and Dr. Christopher Tufton remain Senators?
What is the status of Mr. Ruel Reid and Dr. Nigel Clarke?
Since Mr. Reid and Dr. Clarke may not have been validly appointed as members of the Senate, what is the impact, if any, on the participation of Mr. Reid and Dr. Clarke in the Senate and other Committees of that House?

Whether the effect of the ruling is such that Mr. Arthur Williams and Dr. Christopher Tufton remain Senators?

The Court in Arthur Williams v. Andrew Holness made the following declarations:

(i) That 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 or 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.

(ii) That 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.

I will focus on the ruling of the Court that the pre-signed and undated letters of resignation and their use to effect the resignation of the Senators are null and void. Black’s Law Dictionary 7th Edition defines “null” to mean “having no legal effect; of no effect whatsoever, without binding force” and “void” to mean “of no legal effect; null”. Essentially the court found that the claimant had not resigned his seat.

A Senator or a Member of Parliament holds his seat until the next dissolution of Parliament after he has been appointed unless he has resigned his seat or certain other events occur such as that Senator or Member ceases to be a commonwealth citizen, or commits certain specified breaches, none of which apply to these circumstances. The purported resignation of Mr.Williams and by extension that of Dr. Tufton has been adjudicated to be unconstitutional, unlawful, against the public interest and accordingly null and void. I am of the opinion that Mr. Williams and Dr. Tufton still are members of the Senate and are entitled to take their seats.

The Status of Mr. Reid and Dr. Clarke

The Court did not address the purported appointments of Mr. Ruel Reid or Dr. Nigel Clarke to the Senate, which were made on the unfounded basis that Senators Arthur Williams and Christopher Tufton had resigned and left two seats vacant. The Constitution allows for only twenty-one Senators and not twenty three. The Leader of the Opposition may only advise the Governor-General to appoint eight persons as Senators not ten, and it follows that any appointment beyond the allowed eight must be unconstitutional. His Excellency the Governor-General relied on the Leader of the Opposition’s assertions that Senators Williams and Tufton had resigned. The Court has declared that the procurement of pre-signed undated letters of resignation is inconsistent with the Constitution, contrary to public policy, unlawful, and accordingly null and void. Having regard to Jamaica’s Constitutional arrangement His Excellency would be under no duty to investigate and contradict the Leader of the Opposition, indeed if he did so it might have seemed awkward if not inappropriate to the Leader of the Opposition and any student of Constitutional Law.

The Full Court, consisting of three Supreme Justices gave a Declaratory Judgement in this matter as was prayed for by the Claimant. There has been some argument in the public space by some who would seek to diminish the significance and solemnity of this form of remedy. A Declaratory Judgement is a binding adjudication that establishes the rights of and other legal relations of the parties without providing for or ordering enforcement. Particularly when the Declarations relate to Constitutional Matters or concern Constitutional Officers or institutions, it is expected that they will be complied with. In this case the Court did not go as far as to declare that Senator Williams and Senator Tufton are still the holders of their seats in the Senate, but the following inferences may be made from the judgment. If the pre-signed and undated letters of resignation and the letters of authorization are null and void, then Senator Williams and Senator Tufton did not resign. In those circumstances, they remain members of the Senate and no vacancy was created in the Senate.

Section 45 of the Constitution provides as follows:

“ (1) (a) Whenever the seat of any member of the Senate becomes vacant, the Governor-General shall, by instrument under the Broad Seal, appoint to fill the vacancy a person qualified in accordance with this Constitution for appointment as a Senator.

(b) In making such an appointment the Governor-General shall, in any case where the member whose seat has become vacant –

(i) was appointed on the advice of the Prime Minister, act in accordance with the advice of the Prime Minister; and

(ii) was appointed on the advice of the Leader of the Opposition, act in accordance with the advice of the Leader of the Opposition.

(2) Whenever the seat of any member of the House of Representatives becomes vacant the vacancy shall be filled by election in the manner provided by or under any Law for the time being in force in Jamaica.”

Section 45 is predicated on there being a vacancy in the Senate.

In the leading text on Constitutional law in Jamaica (The Constitutional Law of Jamaica by Lloyd Barnet, page 172), the role of the Governor-General in making appointments to the Senate is described as a formal function of the Governor-General. Dr. Barnett states:

“In all these cases the Constitution casts him in the role of a ‘rubber-stamp’ and he is accorded no personal discretion.”

The Governor-General therefore had no option but to perform his duty and, acting on the advice of the Leader of the Opposition that there were two vacancies, appointed Mr. Reid and Dr. Clarke as Senators in November 2013.

The issue arises as to the powers that may be exercised by the President of the Senate if Mr. Reid and Dr. Clarke attend the next sitting of the Senate. Can the President of the Senate make a determination that Mr. Reid and Dr. Clarke are strangers and, inter alia, order their withdrawal from the Senate. The Standing Orders of the Senate of Jamaica, 1964 (the Standing Orders) makes provision for persons to be considered members and others to be considered strangers. It is apparent from the use of the terms that persons who have been appointed as Senators are considered members.

Standing Order 81 (3) provides as follows:

“The President may, whenever he thinks fit, order the withdrawal of strangers from any part of the Chamber and its precincts, and may order the doors of the Chamber to be closed.”

The Standing Orders does not define the term “stranger”. Standing Order 85 provides that resort may be had to the usage and practice of the Commons House of Parliament of Great Britain and Northern Ireland for matters not provided for by the Standing Orders. A leading text on the usage and practice of the House of Commons, UK (Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 22nd Ed.) explains as follows:

“Officers of the House, and certain officials on duty, are not normally regarded as ‘strangers’, but are, with few exceptions, excluded from secret sessions.”

Section 44(1) of the Constitution is instructive as it provides:

“(1) Any question whether-

(a) any person has been validly elected or appointed as a member of either House; or

(b) any member of either House has vacated his seat therein or is required, under the provisions of subsection (3) or subsection (4) of section 41 of this Constitution, to cease to exercise any of his functions as a member, shall be determined by the Supreme Court or, on appeal, by the Court of Appeal whose decision shall be final, inaccordance with the provisions of any law for the time being in force in Jamaica and, subject to any such law, in accordance with any directions given in that behalf by the Chief Justice.”

A similarly worded provision is in the Parliament (Membership Questions) Act. Section 3 of that Act states:

“(1) Any question whether-

(a) a person has been validly appointed as a member of the Senate; or

(b) a member of either House –

(i) has vacated his seat therein; or

(ii) is required under subsection (3) or (4) of section 41 of the Constitution of Jamaica to cease to exercise any of his functions as such member,

shall be referred to and determined by the Court in accordance with the provisions of this Act.

(2) Every such reference shall be by petition presented to the Court –

(a) in relation to the Senate, by the Clerk by authority of a resolution of the Senate;

(b) in relation to the House of Representatives by the Clerk by authority of a resolution of that House;

(c) in relation to either House by the Attorney General or by any other person.”

The Supreme Court has given a Declaratory judgement that Mr. Williams’ and by extension Dr. Tufton’s resignations are null and void. I am of the opinion that it has by inference ruled on the invalidity of the appointments of Mr. Reid and Dr. Clarke.

It is my opinion that the President of the Senate does not have the authority to make a determination regarding the validity of the appointments of Mr. Reid and Dr. Clarke as Senators. This is a matter that falls within the remit of the Court and a very strong argument can be made that the appointments of Mr. Reid and Dr. Clarke were not constitutionally or validly made having regard to the Declarations made by the Court in Williams v. Holness. Again, we can draw further inferences from the ruling. If there was no vacancy in the Senate, new appointments could not have been constitutionally made and any such appointments would have to be considered invalid.

Since Mr. Reid and Dr. Clarke may not have been validly appointed as members of the Senate, what is the impact, if any, on the participation of Mr. Reid and Dr. Clarke in the Senate and other Committees of that House?

Section 51(2) of the Constitution provides as follows:

“Each House may act notwithstanding any vacancy in its membership (including any vacancy not filled when the House first meets on or after the appointed day or after any dissolution of Parliament) and the presence or participation of any person not entitled to be present at or to participate in the proceedings of the House shall not invalidate those proceedings.”

Pursuant to section 51(2), if it is declared that Mr. Reid and Dr. Clarke were not properly appointed as Senators, the proceedings of the Senate will not be invalidated for the periods and sittings in which they participated.

Conclusion

I am of the opinion that in light of the Court’s Declaration Senator Williams and Senator Tufton did not resign and therefore there were no vacancies in the Senate. It would follow that having regard to the mandate of the Constitution, the appointment of two additional Senators would be unconstitutional.

In the circumstances, either the affected parties should agree or the matter should be referred to the Supreme Court pursuant to section 44 of the Constitution of Jamaica.

Patrick Atkinson, Q.C., M.P.

Attorney General