Holness loses appeal in Senate letter saga; says ruling brings closure to legal issues

Court says Holness not authorised to submit resignation letter for a senator

BY PAUL HENRY Coordinator -- Crime/Court Desk henryp@jamaicaobserver.com

Wednesday, March 25, 2015

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OPPOSITION Leader Andrew Holness yesterday said he has accepted the decision of the Court of Appeal against him in relation to his controversial dismissal of Arthur Williams (and Dr Christopher Tufton) from the Senate in November 2013, saying that closure has been "brought to the legal issues" arising from the ouster.

The statement strongly suggests that the Jamaica Labour Party leader will not take the case to the Privy Council.

"The Court of Appeal, having now handed down its decision, closure has been brought to the legal issues. This will now enable the party to focus its full attention on the business of the people," said Holness in a release to the media hours after the ruling. He said he had filed the appeal to seek "clarity on the matter".

Following yesterday's ruling, Williams told the Jamaica Observer that Holness should "do the right thing".

Said Williams: " The Jamaica Labour Party is at a defining moment in its history and I genuinely pray that the appellant will be endued with the knowledge to know what's the right thing to do," he said.

Asked by the Observer if, by the 'right thing' he meant that Holness should resign, Williams said he never said that, but noted that "given the circumstances" Holness should know what to do.

The Court of Appeal, last week Tuesday, reserved judgement in Holness' appeal after hearing two days of arguments from attorneys in the case.

The dismissal of Williams and Tufton was seen as a move against them over their support of Audley Shaw in the 2013 leadership race that Holness won by more than 700 votes. The removal of the senators widened the rift in the already fractious party and intensified calls for Holness' resignation as leader.

Ruel Reid and Nigel Clarke, who were appointed following the dismissal of Williams and Tufton, indicated that they would resign from the Senate following the Supreme Court ruling in February.

Yesterday, the Court of Appeal said in its ruling that "the Full Court was correct in finding [in February] that the demand for pre-signed letters of resignation was unconstitutional and invalid. Similarly, the use of those letters without the consent of the persons who had signed them was also invalid. Consequently, the letters of resignation that were delivered to the governor general by Holness were invalid and ineffective."

"The Constitution provides that the seat of a member of either House becomes vacant 'if he resigns his seat'. On 16 January 2012, prior to becoming a member of the House, the respondent Williams signed a letter tendering his resignation as a member of the Senate with immediate effect. That letter cannot be regarded as a resignation letter as a he was not yet a member of the Senate."

The court went on: "However, assuming that it was, in order to have penned such a letter at that time, and further to have given it to the leader of the Opposition to present to the governor general, the authority to present it would be dependent on Mr Williams' continued wish to resign. ...The respondent indicated that he had no wish to resign. So too did Dr Tufton.

"In that situation, the leader of the Opposition ought to have realised that, even if he had the authority to submit the resignation of a senator to His Excellency, these two senators had no intention or wish to resign. Any authority he may have had to submit the letters [was] terminated."

The court said that in the future a senator who wishes to resign should submit his or her letter of resignation "directly to the appointing authority" (the governor general) "so that there can be no doubt that a resignation has occurred".

The court added that Holness is not authorised to submit a letter of resignation for a senator.

"Had the Constitution been followed in this instance, the purported appointments of senators Reid and Clarke would not have occurred," the court noted in its written ruling.

"It would seem, however, that if a letter of resignation is ineffective, then there was no vacancy for the governor general to fill, despite any advice by the relevant constitutional authority that he do so," the court said in reference to the appointments of Reid and Clarke.

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