Arthur Williams v Andrew Holness
| Jurisdiction | Jamaica |
| Judge | Daye J,McDonald-Bishop J,Batts, J |
| Judgment Date | 06 February 2015 |
| Neutral Citation | [2015] JMFC FC 1 |
| Docket Number | CLAIM NO. 2012 HCV 06428 |
| Court | Supreme Court (Jamaica) |
| Date | 06 February 2015 |
[2015] JMFC FC 1
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE FULL COURT
The Hon. Mr. Justice Daye
The Hon. Mrs. Justice McDonald-Bishop
The Hon. Mr. Justice Batts
CLAIM NO. 2012 HCV 06428
In the Matter of The Constitution of Jamaica
and
In the Matter of an Application by Arthur Williams, alleging a breach of his rights under sections 13(3) (b) (c) and (e) of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011
and
In the Matter of an Application by Arthur Williams for Constitutional redress pursuant to section 19 of the said Charter
Dr. Lloyd Barnett and Wentworth Charles instructed by Wentworth Charles & Co. for the Claimant
Mrs. Georgia Gibson-Henlin and Miss Taneshia Rowe instructed by Henlin Gibson Henlin for the Defendant
Miss Carlene Larmond , Miss Symone Pearson and Miss Monique Harrison for the Attorney General instructed by the Director of State Proceedings
CONSTITUTIONAL LAW — PARLIAMENT — THE SENATE — APPOINTMENT OF SENATOR — RESIGNATION OF SENATOR — REMOVAL OF SENATOR — PRE-SIGNED AND UNDATED LETTERS OF RESIGNATION AND AUTHORIZATION GIVEN TO LEADER OF OPPOSITION BY SENATOR AT TIME OF APPOINTMENT — TO USE LETTERS AT HIS SOLE DISCRETION TO EFFECT RESIGNATION OF SENATOR — SENATOR REFUSING TO RESIGN — USE OF THE LETTERS BY THE LEADER OF THE OPPOSITION TO EFFECT RESIGNATION OF THE SENATOR — WHETHER AUTHORITY TO USE LETTERS REVOKED — WHETHER LETTERS UNCONSTITUTIONAL — WHETHER THE REQUEST FOR AND USE OF THE LETTERS BY THE LEADER OF OPPOSITION UNCONSTITUTIONAL — WHETHER FUNDAMENTAL HUMAN RIGHTS OF SENATOR INFRINGED BY LEADER OF THE OPPOSITION — THE JAMAICA (CONSTITUTION) ORDER IN COUNCIL 1962, SS. 13, 19, 35, 41, 44 (1) & 137 — THE CIVIL PROCEDURE RULES 2002 (‘THE CPR’), RULE 56.9(1), (2), (3).
The claimant, Arthur Williams, was duly appointed a Member of the
Senate of Jamaica by the Governor General on the advice of the defendant as the Leader of Opposition on the 16 January 2012.
On 14 November 2013 the defendant again as Leader of Opposition, but in his second term of office, tendered to the Governor General a purported letter of resignation on behalf of the claimant.
This purported letter of resignation was in standard form and originally undated. It was drafted and authorized by the claimant. There were two other letters accompanying it.
These three letters are exhibited in the affidavit of the claimant. They are set fully in the judgments of McDonald-Bishop J and Batts J. The purported letter of resignation was addressed to the Governor General. Also addressed to the Governor General, was a letter which explained that the person signing the letter of resignation authorized the Leader of Opposition to deliver it to the Governor General when the Leader of Opposition considered it necessary. The third letter was addressed to the Leader of Opposition authorizing him to date and deliver the letter of resignation to the Governor General.
The claimant said that the Leader of Opposition used and relied on these letters in respect of Senator Christopher Tufton and him.
The other Opposition Senators on or around 12 November 2013, headed by Senator Tavares — Finson, resigned their membership from the Senate independently of these letters. They all signed similar worded letters as a condition, and before they were nominated by the Leader of Opposition to the Senate.
These are the basic facts. The background to these decisions and the events leading up to them, are more fully described in the judgments of my learned colleagues.
There is one area of disputed facts. The claimant who was Chief of Staff, at the Office of the Opposition party contended that the letters were prepared and agreed to for the specific purpose to ensure party unity among Opposition Senators on any future debate of a Bill to amend the Constitution to abolish appeals to the Judicial Committee of the Privy Council (JCPC) as the final Appellate Court of Jamaica and to replace it by the Caribbean Court of Justice (CCJ), (para. 8–11 of Affidavit of Arthur Williams dated 19 November 2013). It was not the intention, he deponed, for the purported letter of resignation to be used by the Leader of Opposition against Senators who did not support the Leader of Opposition in the internal election for the Leader of Opposition's party (Jamaica Labour Party).
In order for a Bill to amend the Constitution relating to the final appellate court, a two thirds majority vote of members of each House is required. This includes the Senate. So the role of the Senate is very important in respect of Constitutional amendments.
In 2005, three Bills were tabled before the Senate to remove the JCPC and to establish the CCJ as Jamaica's Final Appellate Court. There was a successful constitutional challenge to the Bills ( Independent Jamaica Council for Human Rights [1998] Ltd. and Other v Hon. Syringa Marshall-Burnett and the Attorney General [2007] UKPC 3 (3 February 2005).
The Privy Council held that for a Bill or any law to amend or alter the provisions of the Constitution to remove the JCPC and replace it with the CCJ as the final Appellate Court, it must adhere to the procedure that is mandated for special entrenched provisions of the Constitution. The procedure adopted by the Senate to introduce these Bills was that applicable to change or amend a provision of the Constitution that only required a simple majority. The Court reasoned that the constitutional framers intended that there should be special entrenched provisions in the Constitution to protect and safeguard the people's rights relating to important institutions of Government.
The defendant refuted this claim that the standard form letters of resignation were created for the specific purpose to ensure compliance with the Opposition party's official position on the CCJ. He contended that the letters
were drafted for a general purpose. It was to give him a wide discretion as Leader of the Opposition to choose or nominate candidates for appointment which the Constitution obliged him to make. (See Affidavit of Andrew Holness dated 21 November 2013, paras. 6 and 12).
It is quite likely that the party leaders and administration would agree what position their Senators ought to take on such an important Bill. It is also quite likely that the standard form letter of resignation would include and was drafted with one of the purpose of ensuring party unity on the issue of the CCJ.
As far as Dr. Barnett is concerned, the purpose for which the letter of resignation was signed is immaterial. His reason is that such a letter seeks to give a power of removal to the Leader of Opposition which is contrary to the Constitution. Dr. Barnett conceded in his submissions that the claimant was wrong in law to prepare these letters.
It is against this background that the claimant applied to the Supreme Court for constitutional relief and the Orders and Declarations set out and enumerated in his Fix Date Claim Form (See judgment of McDonald-Bishop J).
The Civil Procedure Rules ( CPR) 2002, as amended, sets out how a person should apply to the Court in such a claim as this. R 56.9 (1) provides as follows:
‘An application for an Administrative Order must be made by a Fix Date Claim Form 2 identifying whether the application is for:
(a) Judicial Review
(b) A relief under the Constitution
(c) A declaration; or
(d) Some other Administrative Order’
Further R 56.9 (3) (b) provides:
(3) The affidavit must state—
(a) …
(b) …
(c) ‘in the case of a claim under the Constitution, setting out the provisions of the Constitution which the claimant allege has been, is being or is likely to be breached.’
The R 56.11 (3) provides:
‘A claim form relating to an application for relief under the Constitution must be served on the Attorney General.’
The Constitution expressly confers original jurisdiction on the Supreme Court to determine any question whether any member of either House of Parliament has vacated his seat (Sec. 44 of the Constitution). The question as to whether a person has vacated his or her seat is related to the question as to whether the person has resigned his membership of the House to which he or she is appointed (Sec.41 (1) (b) of the Constitution).
The Constitution provides that any person, including the Attorney General, may institute proceedings in the Supreme Court to determine the matter of whether a member of the House has vacated his or her seat. (Sec. 41(2). Locus standi to move the Supreme Court is thus extensive and not restricted to a specific individual member or general members of the House.
This provision contemplates that the issue of the status of seats in either House is a matter that affects the public. The provision also confers standing on the Attorney General to appear and this would seem to indicate that the issue of the seat of a member of the House is an important matter of public interest. A public interest element is introduced along with the individual and private interest.
The nature of the jurisdiction of the Court in these proceedings is a factor which must be borne in mind in any consideration of issues arising under the provision.
Not only is the issue of whether a member of either House has a vacated his or her seat to be determined by the Supreme Court, but the Supreme Court is also expected to determine the validity of the election and appointment of a member of either House (Sec. 41 (a)).
There is no dispute in these proceedings in relation to the election or appointment of any member of the House and, in particular, the Senate. The...
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