TOMORROW, Supreme Court Judge Paulette Williams will announce her ruling on whether Opposition Leader Andrew Holness has the green light to appoint new senators to replace sacked senators Arthur Williams and Dr Christopher Tufton.

Former senator Arthur Williams is asking the Court to issue an injunction to bar the opposition leader from making new appointments to the Senate, pending a determination of his substantive claim that no vacancy exists because he had not voluntarily ‘resigned’ the position.

In court papers, Mr Williams contends that undated resignation letters signed by seven Opposition senators when they were appointed by Mr Holness almost two years ago were intended to be used only to ensure that no Opposition member went against the Jamaica Labour Party’s position in Parliament that adoption of the Caribbean Court of Justice (CCJ) as Jamaica’s final court of appeal should only come about by means of a referendum.

And the opposition leader, he further claims, acted unconstitutionally to deprive him (and presumably Dr Tufton) of the Senate seat.

The governing People’s National Party (PNP) insists that the required constitutional amendment can be achieved in a bi-partisan and less expensive way through a two-thirds majority in both houses of Parliament.

There is no contention as to whether the Opposition senators had, in fact, signed undated resignation letters which were given to the opposition leader. They also signed cover letters permitting Mr Holness to date and submit their resignation letters to the governor general when he sees fit.

Mr Holness contends that there was no restriction on how or when he could use the resignations. In his affidavit, he contends that it was Mr Williams, in his several roles as an attorney, chief of staff in the Office of the Opposition Leader and Leader of Opposition Business in the Senate, who “devised” the scheme and advised Mr Holness it was “constitutional”.

Has the strategy by Arthur Williams come back to bite him? Judge Paulette Williams may provide the answer in her ruling tomorrow; but there will be important matters arising.

After his victory over Audley Shaw in the recent JLP leadership race, Mr Holness indicated that he wanted all Opposition senators to resign to give him a free hand to make new appointments.

Mr Williams was neutral in the contest while Dr Tufton was a frontline campaigner for the challenger Shaw. Both refused to resign; so it is reasonable to infer that they were removed because Mr Holness could not assume their loyalty. The undated letters were just a gift to achieve a clear political objective.

Judge Williams will weigh the competing claims and also decide whether the letters constituted voluntary intention to resign from the Senate within the meaning of Section 41 of the Constitution, which spells out the conditions under which a senator can demit office, or they were intended to be of specific utility as Mr Williams contends.

Section 41 states: “The seat of a member of either House shall become vacant (a) upon the next dissolution of Parliament after he has been appointed or elected; (b) if he resigns his seat”. There are other conditions having to do with capacity but there is no provision for the prime minister or the leader of the opposition to revoke any appointment or demand any resignation.

INTENTION OF THE FOUNDING FATHERS

While we await the ruling of Judge Williams, the issue has raised wider questions about the role and usefulness of the Senate in our constitutional arrangements.

Under the constitution, “Parliament consists of Her Majesty the Queen, represented by the Governor General, and two legislative Houses, a nominated Senate and an elected House of Representatives”. So changing or dumping it is not an easy option.

Appointments to the Senate are made by the governor general “in accordance with the advice” of the prime minister, who is authorised to name 13 members, and the leader of the opposition, who can name eight. The governor general has no discretion in the matter; senators are political appointees.

Did the founding fathers of the Jamaican Constitution intend to have an independent Senate not answerable to the party leader?

In the search for answers, I reread parts of The Politics of Constitutional Decolonisation in Jamaica 1944-1962, Professor Trevor Munroe’s seminal work on the creation of the Jamaican Constitution.

He points out that the Constitutional Committee “…found great difficulty in deciding on the composition and function of the Senate”. The committee grappled with two contending principles: Having a Senate that was guardian of the constitution or one in which appointments were controlled by the political leaders.

He writes: “At one stage, it was proposed that the members of the Senate be appointed by the leaders of the political parties in the same ratio as the parties were represented in the Lower House.” Clearly, this would be a useless political duplication of the House, as Douglas Fletcher, then the Leader of Government Business in the Upper House, pointed out.

A Senate so constituted would become, in Fletcher’s words, a “quite pointless and useless body… a revision chamber which cannot revise… a debating chamber which can’t debate because the debates are foregone conclusions.”

NW Manley, premier of Jamaica in the period leading up to Independence, was of the view that party nominees to the second chamber “might well regard it as their duty to function on purely party lines”, thus rendering the body superfluous.

Neville Ashenheim, a JLP-appointed member of Legislative Council and arguably the most influential leader of the business elite at the time, pointed out that the council had performed useful functions on occasion by allowing the mobilisation of public opinion and had not always voted along party political lines.

This could be a model for the new Senate as a review chamber that could delay and improve the quality of legislation and be an “instructor of public opinion” unfettered by the cut and thrust of partisan politics in the Lower House.

But while NW Manley came round to the view that the Senate should be by “straight political appointment”, he felt it could effectively perform its review and constitutional role if the political leaders chose persons who “…can be expected to function in the Upper House”. It could work with people of the right temperament.

Clearly, the Senate as guardian of the Constitution requires political behaviour of a most partisan kind, that is, Opposition appointees must deprive the Government of the two-thirds majority. This can only be done if the Opposition senators act in political concert under the party whip.

The entrenched clauses in the Constitution can only be amended by referendum or a two-thirds majority in both Houses of Parliament.

By structuring the Senate on the basis of 13 Government appointees to eight from the Opposition, the founding fathers ensured that a government — with more than a two-thirds majority in the House — cannot change deeply entrenched provisions without at least one Opposition senator crossing over.

In order for this principle to have practical effect, the Opposition must be able to count on the eight carrying the party line. The assumption is that the whip would not be applied capriciously but reserved to safeguard fundamental constitutional principles. A priori unsigned letters seem to take the principle of party discipline beyond reasonableness.

I believe the wisdom of the founding fathers, in structuring the Senate the way they did, recognised that political compromise was necessary to secure fundamental constitutional change. Regrettably, this is increasingly unlikely in our winner-take-all approach to the use of political power.

Our leaders may reflect on what NW Manley called “a pure accident” that established the Legislative Council back in the 1943 Constitution that granted more autonomy to local elected officials.

At the time, Manley wanted a legislature that was “fully representative” of the people. But he also insisted on an Executive Council as “the principal instrument of policy” analogous to a Cabinet in Independence.

On the other hand, according to Munroe, JAG Smith, as the leader of the Elected Members Association, “demanded” an Upper House. Manley compromised in order to present a united front to the colonial authorities and get a stronger executive. Is that possible in today’s politics?

kcr@cwjamaica.com