As Jamaicans continue to test the still new 2011 Charter of Rights and Fundamental Freedoms, we could see some intriguing cases before the Supreme Court this year, such as the issue of the undated Senate resignation letters, a challenge to the buggery law, and a test of the constitutional provision for the right to a healthy environment. Such cases are important in delineating the limits of a constitution and specifying the protection it offers.
The Undated Senate Resignation Letters
Former Senator Arthur Williams has indicated that he intends to pursue his claim that Opposition Leader Andrew Holness’s use of undated resignation letters to force him and Christopher Tufton out of the Senate violated his constitutional rights. Williams says the letters were intended to be used only in the event of Opposition Senators wanting to break with the party on the Caribbean Court of Justice. If the case goes to conclusion, we could see the court pronouncing on something that lawyers have been arguing over for years – what power, if any, do political leaders have to remove senators who they themselves appointed?
Williams has said he is seeking the following:
“ A Declaration that an undated letter of resignation and a letter authorizing the Defendant to date and use the same which had been signed by the Claimant were used by the Defendant other than for the purpose for which they had been given and therefore were unlawfully used and accordingly are void and of no effect.
A Declaration that based upon the Claimant’s stated position that he would not resign as requested, he had effectively revoked the said letters.
A Declaration that the very fact of requesting these undated letters of resignation from all persons to be appointed as Senators under nomination of the Leader of Opposition is contrary to Jamaica ’s Constitutional scheme.
A Declaration that the undated letters of resignation are void as being inconsistent with the Constitution by seeking to give to the Defendant the right or power to effect the resignation of the Claimant at the Defendant’s volition.
A Declaration that by using the undated letters of resignation for the reason that the Claimant did not support the Defendant in the election for leadership of the Jamaica Labour Party is inconsistent with the Constitution of the Jamaica Labour Party and the Constitution of Jamaica.
A Declaration that the use of the undated letters of resignation on the basis that the Claimant did not support the Defendant in the election for leadership of the Jamaica Labour Party contravenes the Claimant’s constitutional rights to the freedoms of conscience, association and expression protected by section 13 (3), (b), (c ) and (e) of the Charter of Rights.”
Those section of the constitution provide for
(b) the right to freedom of thought, conscience, belief and observance of political doctrine;
(c ) the right to freedom of expression;
(e) the right to freedom of peaceful assembly and association.
Challenge to Buggery Law
Then there is the challenge to the buggery law brought by Javed Jaghai. Jaghai is seeking a declaration that;
“The right to privacy in the Charter of Rights and/or the right to equality excludes private sexual activity between consenting male adults from being criminalized under the Offences Against the Person Act (sections 76,77,79) or a declaration that private sexual activity between consenting male adults are excluded from those sections of the OAPA as a matter of statutory interpretation;
An order that sections 76 and 77 of the OAPA will continue to govern non-consensual anal intercourse and anal intercourse with minors.”
The sections of the OAPA cited are:
76. Whosoever shall be convicted of the abominable crime of buggery, committed either with’ mankind or with any animal, shall be liable to be imprisoned & kept to hard labour for a term not exceeding ten years.
77. Whosoever shall attempt to commit the said abominable crime, or shall be guilty of any assault with intent to commit the same, or of any indecent assault upon any male person, shall be guilty of a misdemeanour, and being convicted thereof, shall be liable to be imprisoned for a term not exceeding seven years, with or without hard labour.
79. Any male person who, in pub!ic or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for a term not exceeding two years, with or without hard labour.
Right to Healthy Environment
There is also the possibility that within the context of the potential transhipment port development on the Goat Islands that environmental advocacy groups may seek to test the significance of Section 13 (3) (l) of the Charter which provides for:
“the right to enjoy a healthy and productive environment free from the threat of injury or damage from environmental abuse and degradation of the ecological heritage.”
This is an interesting provision in the Charter. Environmental rights are regarded as many scholars as so-called third-generation rights (civil and political rights being first-generation rights, social, economic and cultural rights as second-generation) and there is debate as to the extent of their justiciability. Parliament’s deliberate inclusion of this provision in the Charter is therefore interesting, and I will be eager to follow a court case testing this provision.
So stay tuned, interesting days are ahead!
News and Views by Dionne Jackson Miller 
January 5, 2014 at 9:31 am
I would be extremely surprised and confused if the second results in a victory for the claimant. I just can’t for the life of me see how the claimant gets past that very clear and rather specific savings clause in the Charter. It seems clear to me at least that Parliament deliberately crafted that clause that way it did to specifically protect existing laws like sections 76, 77 and 79 OAPA. This was after deliberately choosing not to tamper with these sections even by way of some sort of consolidation when Parliament was passing the Sexual Offences Act. One would think it would have been prudent for Parliament to have all (or most) sexual offences governed by one statute. But I think it chose not to tinker with the OAPA in any way given the result of previous tinkering with this same act: the tinkered provisions were no longer saved and the JCPC promptly struck them down. As far as the first and the third, I have no idea where those might be going.
January 5, 2014 at 10:01 am
The case brought by the Senator is new ground. I’m no lawyer, but would have thought that common sense says that if the issue of undated (and open-ended on substance) resignation letters were truly an issue that should have been brought up at the moment they were requested. Consenting to sign such a letter seems to imply consent to the principles involved and would remove any matter of rights being trampled. However, did the desire to ‘serve’ trump the fear of having rights trampled? If having signed the letter the Senator expected it to be used if and only if in one instance seems terribly naive in the world of politics (but maybe law and politics operate in different moral spheres).
The matter of resignation of Senators is separate from that of resignation letters and has wider application to al who may become Senators. It will be interesting to see if courts agree that the appointments are the right of one or other political party–which seems implicit in the fact that the appointments are split between parties to ensure the ruling party has a majority. If that is not the case, is it really that Senate appointments are either limited to the term of a Parliament or even unlimited?
Look forward to following the discussions.
January 5, 2014 at 1:32 pm
Comment on Williams’ Claim, the Sanate matter. It may turn on the question of how the tribunal views several issues requiring construction. S.1 (12) of Constitution ‘The Interpretation Act, 1889 as in force on the 52 a 53 appointed day, shall apply, with the necessary adaptations, Vid.C.63- for the purpose of interpreting this Constitution…’ Sections 35 – 40 Interpretation Act deal with Powers. S. 34 ‘Where any Act [read constitution] confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised…from time to time as occasion requires.’ S. 35 ‘…authority having power to make appointment shall also have power to remove…’ S. 40 is interesting and may feature in argument, ‘Where in any Act power is given to any person to do do or enforce the doing of any act or thing all such powers shall be understood to be also given as are reasonable necessary to enable the person to do or enforce the doing of the act or thing’.
The appointment of Opposition Senators a power of the the Opposition leader, Senate seat may become vacant on resignation, leader of Opposition has undated letters, given by consent, and letters authorizing him to date and use these letters, Leader of Opposition dates and uses these general letters of resignation. There is no subsidiary document (like the authority letter) that addresses the purpose of the resignation letters and how triggered, no document that restricts the use of the resignation letters. The Claimants say the use of letter restricted to issues re Caribbean Court of Appeal. The case will turn on, in my opinion, construction issues…that is if it is not first discontinued.