LEGAL CHALLENGE

SEVERAL LEGAL experts have warned that the prime minister’s (PM) decision to return the hefty salary increase could end in a legal challenge by those affected by his decision because there is a process to be followed before he can refuse the pay increase.

At a press conference on Monday, Prime Minister Andrew Holness had declined his pay rise amid public backlash over the massive salary hikes for politicians that were announced last week.

The prime minister’s salary would have increased from $9.16 million to $22.3 million, effective April 1, 2022; $25.2 million, effective April 1, 2023; and $28.5 million, effective April 1, 2024, representing a 214 per cent hike.

Given his announcement, his salary would remain at its current level of $9.16 million.

“I have directed the Transformation Implementation Unit to remove the prime minister’s compensation from the new salary scale. The prime minister’s compensation will, therefore, remain at its previous levels,” Holness said at the press conference. “To be clear, no retroactive payments will apply to the prime minister’s pay.”

He added: “There are those who genuinely feel that, you know, politicians have a higher moral duty to act in concert and solidarity with those who are suffering. I am particularly moved by that argument.”

However, legal experts have challenged that position, given the impact it would have on other parties who stand to benefit.

The pension of former prime ministers is tied to the salary of the current officeholder. There are three living former prime ministers, P.J. Patterson, Portia Simpson Miller, and Bruce Golding.

“Where one voluntarily forgoes a benefit that cannot operate in law or in equity to the prejudice of the other beneficiaries,” says senior attorney-at-law Bert Samuels.

A legal expert, who requested anonymity, says the PM went about the refusal of the salary increase in the wrong way. Commenting on the issue, the legal expert pointed out that the announcement about the salary increases were made in Parliament therefore once that is done, they would have to go back to Cabinet to reverse the order and then go back to Parliament and announce that the order was reversed.

“The prime minister is also a parliamentarian, so he will also have to ask Cabinet to set aside salary increases as it relates to him as a parliamentarian. It is like passing a law and then saying the next week that you are going to undo the law. There are processes to be followed before that can be done,” the legal expert stated.

“The question is how can the PM rescind the order that was made in Parliament without going back first to the Cabinet and then Parliament,” the legal expert added.

King’s Counsel Frank Phipps says what the PM did is questionable legally and it is a process to which those who are affected have a right.

“The approval of the massive increase was a decision of Government and I don’t see how the prime minister can unilaterally reject it, especially when he’s presumed to be a party to the original decision,” Phipps said.

Attorney-at-law Hugh Wildman says there are constitutional implications in the decision the PM has taken.

“What he has done cannot be legal because if he chose not to take it, it means it would affect former prime ministers whose pensions are pegged to the salary and that would result in them being discriminated against. What he could have done is to take it and give it to whoever he wants. Such a decision has constitutional implications,” Wildman emphasised.

President of the Advocates’ Association of Jamaica, Leonard Green, says the increase in salary has been approved so a process has been implemented. The question to ask is what steps or efforts the PM is going to take to stop the process.

barbara.gayle@gleanerm.com