Clive Munroe Jr | Parliamentary decision-making and the courts

During the final debate before the recently concluded general election, Prime Minister Andrew Holness was asked about his record as it relates to both public allegations and court declarations of unconstitutionality in respect of him and his administration.

The PM’s substantive response was that he had always abided by the courts’ rulings, that he had an interest in having the courts clarify the jurisprudence on matters of public import, and that he had personally participated in groundbreaking jurisprudence. The PM provided his frank view of the role of the courts in settling political disputes.

Indeed, it is important for the courts to address issues of law when called upon to do so. It also remains important for our political leaders to acknowledge the importance and sanctity of the courts – by word and by deed – as the interpreters and upholders of the Constitution and laws of our land, and to abide by its judgments.

However, the words omitted from the PM’s response were equally palpable; the PM’s remarks about abiding by the rulings of the courts speak to conduct after parliamentary decisions have been made and found unlawful by the courts. His remarks did not comment on the political judgement exercised before the courts had to determine the lawfulness of those political actions. So what, then, is the role of the courts as it relates to parliamentary decision-making?

There is a view in some western democratic states that the ‘activist’ courts in those countries have become an auxiliary vehicle in the creation of rights due to the failure of those parliaments to act upon the concerns of citizens, generally and specifically, in a timely manner. In impatience and desperation, many citizens turn to those courts to assist them in finding solutions not present in current legislation or common law, and also where the political leadership shows no appetite for urgently addressing those issues. Such courts are often accused of being political and/or politicised, and also of usurping some of the legislative functions of those countries.

In Jamaica, even with the purposive approach consistently applied to the interpretation of our laws, our courts appear to be of the view that it is not the courts’ place to decide how the country’s politics is to be run, but merely to stick to its core functions, that is, to adjudicate, uphold, determine and declare the law when matters are before the courts.

FORCE OF LAW

In the last decade or so, we have had examples where the courts have intimated or underscored this position. In Dabdoub v Vaz, the Supreme Court refrained from interfering with the parliamentary process in favour of the people deciding their political representative instead of the court, despite the carefully crafted efforts of the claimant to be awarded the seat by default of his opponent’s ineligibility.

Indeed, in the recently decided case of Virgo v The AG of Jamaica, largely omitted from the extensive public discourse was the court’s suggestion regarding hair policy in schools that “perhaps the time has come for the legislature to remove this matter from the discretion [of] individual entities and give it the force of law. How far that is to be taken is a decision that must be made by the policymakers”.

In Williams et al v Holness, as is now widely known, the Full Court declared the purported resignation letters void, and returned Senators Arthur Williams and Christopher Tufton to the Senate in lieu of their replacements. However, the question of whether the said senators should resign by convention, given their conflict with the leader of the Opposition (‘LOTO’), and how Parliament itself should deal with the issue, remained unresolved.

Again, the court did not consider that it was called upon to provide a solution to the inner workings of the legislature. One of the judges in that case noted that the case presented an opportunity for the Senate members to create new conventions, as “it is not beyond political leaders and parliamentarians to create a constitutional convention regarding resignation of xenators to ensure effective administration of government for the people”. The said judge acknowledged the suggestion of Senator Tom Tavares-Finson that the issue could be resolved by caucus of the senators. Ultimately, the convention was not created and the question never resolved.

THE CONFLICT

The said question now looms over the opposition People’s National Party (PNP) as some minority Senate members, appointed on the recommendation of the present and outgoing LOTO, have indicated that they do not intend to resign when Dr Peter Phillips steps down as PNP president and, subsequently, as LOTO. Respectfully, it would be useful and timely for the settlement of the issue of resignation of senators by convention by the members of the Senate.

Perhaps those opposition senators could offer their respective resignations to a new LOTO to allow him/her a free hand in directing the mode of opposition, given the significant constitutional repercussions – such as the passage of contentious amendments to the Constitution itself – of those senators not being in step with the new LOTO.

The senators could caucus and come to a different convention. It remains the law that senators are appointed for the life of a Parliament and only vacate their positions for the reasons clearly set out in the Constitution, for which the resignation of a LOTO is not a valid reason. However, the conflict caused by such a state of affairs remains without clear consensus and convention by the Parliament itself.

Ultimately, it is the duty of our policymakers and politicians to grapple with difficult decisions; to make provisions and conventions, where none exists, according to their best judgement and skill, and to chart new courses to fill out the gaps in the parliamentary decision-making process.

It is not the role of the courts to fill that gap for the politicians. For parliamentarians to properly fulfil their duties, they must seek to find unique, inclusive and reasonable solutions to the legislature’s problems and to the people’s business.

Clive Munroe Jr is an attorney-at-law and public commentator. Email feedback to columns@gleanerjm.com.