Andrew Holness v Arthur Williams

• Jurisdiction: Jamaica
• Judge: Panton P,Dukharan JA,Brooks JA
• Judgment Date: 25 March 2015
• Neutral Citation: JM 2015 CA 39
• Docket Number: CIVIL APPEAL NO 22/2015
• Court: Court of Appeal (Jamaica)
• Date: 25 March 2015

[2015] JMCA Civ 21

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

Before:

The Hon Mr Justice Panton P

The Hon Mr Justice Dukharan JA

The Hon Mr Justice Brooks JA

CIVIL APPEAL NO 22/2015

Between

Andrew Holness

Appellant

and

Arthur Williams

Respondent

Ransford Braham QC, Mrs Georgia Gibson-Henlin and Mrs Taniesha Rowe-Coke instructed by Henlin Gibson Henlin for the appellant

Dr Lloyd Barnett and Wentworth Charles instructed by Wentworth Charles & Co for the respondent

Miss Carlene Larmond , Miss Simone Pearson and Miss Monique Harrison instructed by the Director of State Proceedings for the Attorney-General of Jamaica

Michael Hylton QC and Miss Shanique Scott instructed by Hylton Powell observing proceedings for the Clerk to the Houses of Parliament

CONSTITUTIONAL LAW - Notice of appeal - Counter-Notice of appeal - Pre-signed letter of resignation and undated letters of resignation used to effect resignation of senators of House of Representatives - Whether judge erred in failing to recognize that these resignations were a voluntary act of respondent and that no proper withdrawal was communicated to appointing authority or appellant - Whether proper procedure was followed - Whether letters consistent with Constitution of Jamaica - Jurisdictional issue - Fundamental rights issue -Effect of letters - Validity of letters

Panton P

1 In my opinion this appeal ought to be dismissed, and my reasons are set out hereunder. I am also of the view that the counter-notice of appeal should be dismissed for the reasons stated by my learned brother Brooks JA.

2 The circumstances of this case are unusual, to say the least. The appellant is the Leader of the Opposition in the House of Representatives. He is seeking a reversal of the order of the Full Court (Daye, McDonald-Bishop and Batts JJJ) made on 6 February 2015. By that order, it was declared that:

• ‘1 … 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.

• 2. …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’.

The facts

3 The declarations resulted from a suit filed by the respondent Williams on 19 November 2013 against the appellant. In his affidavit in support of the fixed date claim form, Mr Williams said that he is a member of the Jamaica Labour Party (JLP) and had been since 1989 a member of its Central Executive and Standing Committee. He has been a member of the Senate since 2002 having been recommended for appointment by successive leaders of the JLP. The last recommendation was made in January 2012 by the appellant, and His Excellency the Governor-General appointed the respondent.

4 The appointment of the respondent and six other Senators was gazetted on 26 January 2012 and stated to be from 16 January 2012, and as having been made by the Governor-General in accordance with the advice of the Leader of the Opposition. The power of appointment was exercised under the authority conferred by section 35 (3) of the Constitution of Jamaica.

5 There was an unusual feature of the recommendations on this occasion. According to the respondent Williams, following discussions between him and the Leader of the Opposition, they agreed that Mr Williams ‘would prepare letters to be signed by each person who was to be recommended for appointment to be used by him [the Leader of the Opposition] in the event of any member appearing to take a view or position on the issue of the Caribbean Court of Justice other than in accordance with the position of the Jamaica Labour Party on that issue’. In keeping with that decision, Mr Williams prepared three letters for each individual to sign.

6 The Leader of the Opposition gave a different account of how these letters came about. He said that the respondent, as Leader of Opposition Business in the Senate and in his capacity as an attorney-at-law, devised a scheme which he (Mr Williams) had advised ‘would preserve the stability and unity in the Opposition Senate’. That scheme, he said, was in the form of the three letters set out in the next paragraph.

7 Letter number 1:

‘Arthur Williams

His Excellency

The Governor General of Jamaica King's House

Dear Governor General

Re: The Senate of Jamaica

I hereby tender my resignation as a Member of the Senate of Jamaica, with immediate effect.

This letter was signed by me and delivered to the Leader of the Opposition at the time of my appointment to the Senate, on the clear understanding that he is authorized to date this letter and deliver to Your Excellency at any time he deems necessary.

Yours faithfully

[Sgd] Arthur Williams

Witnessed by: [Sgd] Tom Tavares-Finson J.P.

January 16, 2012

14/11/2013

[Sgd] Andrew Holness’

Letter number 2:

‘Arthur Williams

His Excellency

The Governor General of Jamaica King's House

Dear Governor General

Re: The Senate of Jamaica

I hereby tender my resignation as a Member of the Senate of Jamaica, with immediate effect.

Yours faithfully

[Sgd] Arthur Williams

Witnessed by: [Sgd] Tom Tavares-Finson J.P.

January 16, 2012

14/11/2013

[Sgd] Andrew Holness’

Letter number 3:

‘Arthur Williams

The Leader of the Opposition

1 West King's House Road

Kingston 10

Dear Opposition Leader

Re: The Senate of Jamaica

Upon your advising the Governor General of Jamaica to appoint me a Senator, I have signed and delivered to you an undated letter of resignation as a Senator. You are hereby authorized at your sole discretion to date this letter and deliver to the Governor General of Jamaica at any time you deem necessary.

Yours faithfully

[Sgd] Arthur Williams

Witnessed by [Sgd] Tom Tavares-Finson J.P.

January 16, 2012.

14/11/13

[Sgd] Andrew Holness’

8 In my view, it does not matter whether the letters came about as a result of the JLP's stance on the Caribbean Court of Justice, or because of the need to generally preserve stability in the ranks of the Opposition in the Senate. I agree with McDonald-Bishop J that ‘resolution of this area of factual dispute is not critical, or I daresay, relevant to the core question for determination’. Whatever was the motivation for generating those letters, the important fact is that they were crafted by the respondent and given to the Leader of the Opposition.

9 On 10 November 2013, there was a contest between the Leader of the Opposition and Mr Audley Shaw, Member of Parliament, for the leadership of the JLP. This was a contest permitted by the constitution of the JLP. Mr Holness was successful. The following morning Senator Tom Tavares-Finson (apparently acting as an emissary of the Leader of the Opposition) told Mr Williams that he would be tendering his resignation as a Senator to the Leader of the Opposition and requested Mr Williams to convene a caucus of Senators to determine whether there were others who would wish to resign also. Incidentally, in his affidavit dated 21 November 2013, the Leader of the Opposition described Mr Williams as ‘Chief of Staff in the Office of the Leader of the Opposition’ as well as being Leader of Opposition Business in the Senate. Mr Williams duly convened the caucus. Dr Christopher Tufton was the only Senator who was absent. They all indicated their willingness to resign, if required so to do, but some queried the basis for resigning.

10 Mr Williams said he saw no reason to resign, and thought it inappropriate to even consider resignation without knowing the position of Dr Tufton who was the only Senator who openly supported Mr Holness' opponent in the leadership race. There was consensus among the Opposition Senators that Mr Williams should ascertain the stance of Dr Tufton and then reconvene the caucus. It was agreed that the Leader of the Opposition should be advised of the position by Thursday 14 November 2013.

11 On Tuesday 12 November 2013, Mr Williams met with the Leader of the Opposition who advised him that those who had not supported him in the leadership election ought to make way for those who had done so, and that some persons in any event needed to ‘get back to work in their constituencies’. Mr Williams informed him that he and Senator Tufton had decided not to resign. The Leader of the Opposition then reminded Mr Williams that he had the letters of resignation and authorization which he could bring into operation. They parted with an understanding that Mr Williams was to have further discussions with Dr Tufton and then revert to him. Dr Tufton himself met with the Leader of the Opposition on the said 12 November 2013 and advised him that he would not be resigning.

12 That evening, the Leader of the Opposition said on television that he was not interested in individual resignation of Senators; rather, he wished them to resign en bloc . Mr Williams intended to attend the meeting of the Senate on Friday 15 November 2013. That did not happen, because at 9:14 am on that very day the Leader of the Opposition telephoned him to say that he had dated and given the letters to the Governor-General who had accepted them as his (Mr Williams') resignation.

The issues as stated to the Full Court

13 The appellant Holness stated the issues as follows:

• i. ‘Whether the letters duly created and signed by the claimant were effective to secure his resignation in accordance with Sec 41 (1) (b) of the Constitution upon being executed by the...