There was a collective national gasp in 2013, when, after having been ousted from the Senate by Opposition Leader Andrew Holness, by way of delivery to the Governor General of a pre-signed letter of resignation and a pre-signed letter of authorization to date and send the resignation letter, Arthur Williams revealed that he had crafted those very letters.
There was doubt in some quarters that Williams would even be entertained in the Supreme Court, given his significant contribution to creating the very devices that were used to remove him from the Senate.
When the Supreme Court ruled that the letters were inconsistent with the constitution, contrary to public policy, null and void, the questions were raised again.
How could Arthur Williams benefit from a ruling made necessary by a situation that he himself had brought about? Shouldn’t he have been barred from accessing the court, or at the very least not have benefitted from its ruling? Read more in my post on www.rjrnewsonline.com.
According to the Supreme Court ruling in the case of Arthur Williams v Andrew Holness, political leaders have no power to revoke the appointment of Senators. The question we are left with is whether they should have that power.
The case has left Jamaicans asking about its immediate impact on the composition of the Senate, with lawyers for Mr. Williams maintaining that he and Mr. Tufton are still Senators while lawyers for Mr. Holness disagree. Read more in my post at www.rjrnewsonline.com.
Should the age at which people can legally consent to sexual intercourse be 16? Or should it be raised to 18? I explore this and related issues in two posts on http://www.rjrnewsonline.com on this issue, Part 1 which you can read here and Part 2 which you can read here. Check them out. Let me start you off….
“Children shouldn’t be having sex!”
“You can’t vote at 16, so why should a 16-year-old be allowed to have sex?”
“Our laws need to send the message that we don’t believe that it is ok to have sex at 16!”
This is just a sampling of the types of responses that have been generated in the wake of the review of the Sexual Offences Act, and in particular the status of children under the Act. Remember, anyone under the age of 18 is a child, according to the Child Care and Protection Act.
The problem is that the discussion, as it generally unfolds, ignores the wider context of the various age limits applicable to childhood and the reasons for the disparities. Read more here.
Will the so-called Anti-Gang Bill before the Jamaican Parliament restrict freedom of expression of our artistes? A lively discussion has started, and I will be looking at its provisions much more closely at another time.
Here are a few preliminary observations however. Societies have often found it necessary to restrict freedom of expression in the interest of the society as a whole and in the interest of vulnerable groups.
In the United Kingdom, the Public Order Act 1986 prohibits the display of written material which is “threatening, abusive or insulting” if one intends to stir up racial hatred or if racial hatred is likely to result.
The fact that restrictions on the right to freedom of expression may be necessary is recognized in the
19 (2). Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
(3). The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.”
Criminal activity is defined as the “planned ongoing, continuous or repeated participation or involvement in any serious offence.”
A criminal organization is defined as “any gang, group, alliance, network, combination or other arrangement among three or more persons (whether formally or informally affiliated or organized and whether or not operating through one or more bodies (corporate or other associations) that:
(a) has as one of its purposes the commission of one or more serious offences and
(b) in relation to which the persons who are a part thereof or participate therein (individually jointly or collectively)
(i) have engaged in unlawful activity in order to obtain directly or indirectly a financial or other material benefit or to gain power or influence or
(ii) issue threats or engage in conduct to create fear or to intimidate or to exert power or influence in communities or over other persons.”
Our own Charter of Rights contains a provision seen in constitutions of other countries, namely that Parliament may pass no law to infringe the rights set out, including the right of freedom of expression “save only as may be demonstrably justified in a free and democratic society.”
In other words, any attempt to limit the rights and freedoms guaranteed in the constitution must meet the test of being “demonstrably justified in a free and democratic society.” This is a provision that has been tested in court in different jurisdictions (and I’ll try to look at some of the resulting court decisions in another blog post). The relevant provision of the Anti-Gang Bill will therefore have to be examined in that context.
The controversial provision is section 15 (1) which states that
“A person may not use a common name or identifying sign, symbol, tattoo or other physical marking, colour or style of dress or graffiti or produce record or perform songs to promote or facilitate the criminal activity of a criminal organization.”
While we do need to look more closely at the provisions, and what has happened in other countries, it is clear that songs generally talking about Jamaica’s gun culture, for example, and yes, Bob Marley’s “I shot the Sheriff” will not be caught by the provision. The song would have to be promoting or facilitating the criminal activity of a criminal organization. Do we think it would be unjustified to ban such a song?
Sure, we need to look at the Bill closely, and see if any of the provisions are problematic in their wording or likely effect, but how about we calm down first? Freedom of expression is not absolute. Do you really think it should be?
It sounds good, but its implementation has been anything but. It is a never-ending exercise, often dragging on for months. It is boring, the speeches, like most parliamentary speeches, are far too long, and opposition spokespersons and portfolio Ministers are for some strange reason, not scheduled together to enable a useful, comprehensive discussion of national issues. In addition, the schedule is always being changed as Members are constantly asking for their presentations to be rescheduled.
At the time, then Prime Minister Andrew Holness agreed with Rev. Thwaites that a new structure was needed and noted that the public was uninterested in the exercise.
Rev. Thwaites had made suggestions for the revamping of the debate, including a more focused approach, looking at national themes such as economic growth and social issues.
I had hoped the discussion would have been the start of meaningful reform, leading to a more vibrant, useful exercise. Alas, we have seen nothing of that.
As always, my question to the parliamentarians is “Who are you talking to?’ or better yet “Who do you think is listening?’
Surely a more vigorous debate would spark wider public discussion, throw up more ideas for national development, get more press and more favourable attention for bright, thinking Parliamentarians. It should be win-win for us the public, and the parliamentarians. Apparently, none of that matters. So here we are again, in the middle of yet another sectoral debate stretching on and on and on. Yawn.
Speaking in Parliament this week, Leader of Opposition Business in the Jamaican House of Representatives Delroy Chuck yesterday echoed a sentiment that many non-Parliamentarians have long expressed – that not enough business is being done in the Houses of Parliament.
At the end of a sitting which lasted less than an hour, Chuck said “enough business is not being done in The House, but let us hope that next week will be a full session. Apart from next week, let us make sure that we deal with these Private Members Motions and utilize the sittings of The House in a more fulsome way.”
“the lacklustre manner in which the Parliament has been attending to the people’s business.”
This came a year after the Gleaner’s editorial which called for an end to the “doziness” in Parliament and expressed the optimistic wish that “with its members having taken their oaths, the legislature will immediately get down to serious work, eschewing its laziness of the past. That is, we expect the House and Senate will sit more often, for longer hours and pass more laws than they did during the life of the last Parliament.”
The editorial writer’s expectations have surely been dashed!
We need more sittings of Parliament, better facilities and expanding physical facilities. Maybe even constitutional reform. There are a lot of possibilities and a lot to discuss.
Before all that, however, I would like to see us make better use of the time we have now. Sure, better research facilities would? should? result in more informed debates (assuming they are used). But can our Parliamentarians, particularly those in the Lower House, really say they are doing all they can at the moment? Can they really say they read the Bills properly (or at all), try to digest and understand them? Reading the Bills and doing some basic research on the Internet would be a good start. The laws and policies of many other jurisdictions can be found online. That can be done from their living rooms and that alone would allow for more informed interventions in the House.
Why can’t they sit longer? Why can’t they have more debates on issues of national importance? Why can’t more of the Private Members’ motions be taken?
More sittings that last less than an hour won’t help solve that problem. I do think we need more sittings. But until we have a commitment from the Parliamentarians to sit longer and work harder, I am not sure that additional sittings will help.
Here are some qualities I would love to see to a greater extent in our political leaders.
1. Leaders who can see through their orange and green coloured glasses that not everybody criticizing them belongs to a rival political party. Some of us just disagree with your policies or direction. Full stop. Hell, with barely 50% voter turn-out in the last election, there’s a 50-50 chance that whoever is criticizing you isn’t voting for any of you, anyway.
2. Leaders who take the time to understand the criticism aimed at them. When Jamaicans complain about your pay or perks, it is coming from years of disillusionment at what politicians have done to our beloved country. You may not have been personally involved, but don’t ever forget that for the sake of power, politicians have torn Jamaica apart with political tribalism and killed our children, our brothers, sisters, mothers, fathers and friends with political violence. Whatever you have or have not done individually, memories of the havoc wreaked by your fellows are still fresh.
In addition, you have failed to deliver even moderate sustained prosperity to our nation and you have spectacularly failed to deliver an equitable education system. When people complain about what seems to you to be a measly sum of, say $4 million, it is coming from Jamaicans, many of whom are struggling to find lunch money or bus fare, who have no option but to use the under-resourced and over-crowded hospitals you have given us while you fly off to Miami for treatment. Some of your critics have to send children to the ill-equipped schools which is your legacy to us, and many of our children leave school as illiterate and innumerate as the day they started. So instead of responding with arrogance and disdain, how about listening carefully to what people are really saying, and answering in a tone of respect and understanding with a real and empathetic attempt to explain your (sometimes reasonable) position.
3. Leaders with a vision for Jamaica. Vision 2030 or not, very few of us have a sense that there is a targeted vision for Jamaica, that a clear direction has been charted and that we are moving with steady determination towards a real goal. We have no real hope that in our lifetimes, Jamaica will see an economic turnaround that will bring real benefits to all society, not just your friends the rich businessmen. Have you ever really, really listened to I-Octane’s “My Story?”
“Respect to all who sell bag juice Who sell it to help dem youth A whole heap a hell dem go through…
Man a suffer too long Yeh man a suffer too long Live in a di ghetto too long Man a suffer too long.”
Listen to it again. One more time. That’s why we need a vision and visionary leaders.
4. Leaders who do real work in Parliament. Our Parliaments have been singularly unimpressive. Many in the Lower House are efficient only at warming benches. There is scant attention given to careful scrutiny of the Bills that are brought to the House. Debates are stunningly superficial and often lacking much evidence of research and thought (save for a very few speakers), and the desk-thumping that passes for participation apparently serves only to wake up the somnolent. I must note that the Upper House has traditionally been light years ahead of the Lower House in this regard. This is why it has been so disappointing to have seen over the years Senate appointments made on the basis of party loyalty only, resulting in Senators who bring little in the way of intellectual rigour to the Upper House. Which brings me to Number 5.
5. Leaders who put Jamaica before party. No, we don’t think all of you do this. In fact, we are sure you don’t put Jamaica first when we see ill-advised appointments, clueless Cabinet ministers, the constant and costly re-invention of the wheel just so that you can say such and such a programme was all yours, the dithering on matters of national importance, the refusal to make hard decisions that will cost you at the polls. So while you spend decades and generations thumping desks in Gordon House, our beloved Jamaica becomes choked with garbage, squatter communities mired in poverty abound, stray dogs roam the streets and our beautiful, bright children lose their way permanently.
There are some politicians whom I think have some or all of these qualities. However, they are usually not the ones in the most senior positions of leadership. But there is some hope. What do you think? What kind of political leaders do you want to see? Who gives you hope?
Dennis Meadows et al v Attorney General of Jamaica, Jamaica Public Service and Office of Utilities Regulation (before Sykes J.)
Summary: The Court ruled that whereas the license granted to the Jamaica Public Service Company (JPS) is valid, the term of the license which grants it exclusive rights to transmit electricity is not valid. The Office of Utilities Regulation (OUR) did not act unlawfully in the matter.
There has been much jubilation over the Supreme Court decision in this case. In my view, such celebration is premature. My conclusion is entirely apart from the fact that this case is almost certainly going to be appealed,
What the court said was that as the statute now stands, the Minister does not have the power to grant an exclusive license which will prevent other applications from being considered.
The court specifically points out two ways in which this problem (if it is seen as such) can be overcome.
The court says that although the government may indeed have a policy of preferring single licensees, the Minister must still consider other applications, and then make a decision on those applications in accordance with policy. The court says that since the Act allows the Minister to grant more than one license, other applicants have a legitimate expectation that their applications will be genuinely considered. In other words, the Minister can grant a license to one applicant, and may have a policy that only single licenses will be granted. However, the Minister must still genuinely consider any other applications that may be submitted.
The other solution for the government would be to amend the relevant statute, that is the Electric Lighting Act, to give the Minister the power to implement the government policy of having single licensees, that is, give him the power in law to grant exclusive licenses.
Therefore, I would argue, no matter what the higher courts may decide that the law states, the critical issue here is going to be whether the government decides to stick with its current policy or whether it wishes to change tack. If it does wish to maintain its policy of a single licensee, then it simply has to make the changes alluded to in the judgment and proceed.
It may indeed be that the government decides to use this case as an opportunity to change its policy, but we should await that decision before breaking out the champagne.
The claimants sought the following declarations from the Supreme Court:
1. That the 20-year all-island exclusive electricity license granted by the Mining and Energy Minister to JPS under section 3 of the Electric Lighting Act on 30th March 2001 is illegal, null and void and of no effect. The license was extended for an additional seven years.
2. That the JPS is therefore operating without a license as required by law;
3. Alternatively, that section 3 of the Act does not empower the Minister to disenfranchise the prospective right of any person to apply for a license to transmit electricity whether for personal, public or commercial purposes;
4. That the grant of an exclusive right to JPS on the recommendation of the OUR constitutes an unlawful fetter on the discretion of the Minister and subsequent Ministers in granting a license to transmit electricity under section 3 of the Act and/or conduct the business of the transmission of electricity;
5. That the OUR acted unlawfully in recommending the grant of an exclusive license by the Minister;
6. That the all-island license is contrary to the provisions and spirit of the Fair Competition Act.
The Court refused the 1st, 2nd, 4th and 5th declarations, and the 6th was not pursued. The significance of the judgment lies in the Court’s decision to grant the 3rd declaration, that the Minister did not have the power to grant an exclusive license.
The license gave JPS an exclusive right for the first three years of the license to develop new generating capacity, and the exclusive right for the duration of the license to transmit, distribute and supply electricity. The license was granted on 30th March 2001 for a 20-year period and extended for an additional seven years.
The case hinged on the interpretation of the relevant provisions of the Electric Lighting Act, an 1890 statute.
Sykes J. summarised the principles of statutory interpretation, that is the rules which govern how legislation is interpreted, which have been known as the literal rule, golden rule and mischief rule.
He stated that context has become an important aspect of statutory interpretation.
“…as time has gone on it has come to be recognized that the process of interpretation of statutes is more nuanced than previously acknowledged. Language, we now know, only becomes better understood if the context is known.
“It used to be that before the court could look at the context to interpret a statute, there had to be some ambiguity. This has now gone by the way.”
Another principle is that a statute is “always speaking” meaning that courts must interpret and apply a statute to the world as it exists today, and that it must be interpreted in the light of the legal system as it exists today. Sykes J. stated that the court expressly adopted the “always speaking” principle, although admitting to some potential problems.
“Admittedly the always-speaking principle is open to the accusation that it is a surreptitious method of judicial updating of legislation which has not been amended by the legislature. This court will acknowledge that there is always that danger but that should not deter the courts from applying old statutes to new circumstances that were not in the minds of the legislators provided that words can reasonably accommodate the new circumstances. Where this can be done without altering the substance of the legislation then the courts should do this even at the risk of being accused of amending the statute.”
“This court expressly adopts the always-speaking principle. This court sees no reason why in the twenty first century we should be shackled by what the legislators in 1890 thought. Social and economic considerations have changed considerably. Jamaica was a colony at that time but is now an independent country with a growing population which means an increasing demand for the supply of electricity. The priority of a colonial government in the nineteenth century may not be the priority of a democratically elected government under universal adult suffrage in the 21st century. In 1890 the Governor was obliged to govern in the interest of the United Kingdom. In 2012, the government is elected by Jamaicans to govern in the interest of Jamaicans.”
The Electric Lighting Act
The judge said that it is important to say what section 3 of the Electric Lighting Act does not say.
“It does not say that one person cannot be granted an all-island license. Neither does the Act say that the Minister must grant multiple licenses to a multiplicity of persons. Also the Minister is not prevented from granting more than one all-island license. Indeed the Act could hardly have said any of these things because the Minister cannot know how many applicants there will be.
“The section permits the Minister to grant licenses to a person to supply electricity within any area. On the face of it, persons and companies can receive licenses for any area. There is nothing to say that the areas cannot be contiguous to each other.”
The Meaning of “Area”
There were submissions as to whether the Minister had the power to grant an all-island license as the Act speaks to the Minister being able to grant a license “within any area.” The claimants argued that area meant something less than the whole and therefore an island-wide license could not be granted. But Sykes J. did not accept this submission and ruled that:
“…section 3 gives the Minister a discretion to grant to one person an all-island license for generating distributing and supply electricity. The section also permits the Minister to grant more than one all-island license to generate, transmit and supply electricity. The Minister may also grant more than one license for a part of the island. In the 21st century there is no compelling reason to interpret area to mean only something less than the whole.”
Can the Minister grant an exclusive license?
The Act allows the Minister to grant licenses, and to impose regulations on the license. The court said that since the statute allows for multiple providers of electricity, anyone who wishes to do so should be able to apply for a license.
“If this is so, then it means the Minister needs to hear and consider that application even if he has a stated policy on the matter. He is free to declare the application in accordance with the policy but that policy should not be so inflexible that it prevents applicants from having their applications genuinely considered.
“It is one thing to say that a decision will be made in accordance with a policy but it is quite another to grant a license to a previous applicant in terms which effectively guarantee that no other application will be considered regardless of its merits.
“The statute does not give the power to the Minister to grant a license on terms which effectively bar any other applicant from being considered. This, in the opinion of this court, is the problem with the current license to JPS. The Minister has committed himself and his successors to a situation in which there is no possibility of change for the required twenty years (which has been extended) even if technology or a new company has a better and cheaper way of of doing some of what JPS is now doing.”
The judge noted that the sequence of events demonstrates the “dangers of the Minister’s approach” noting that an initial 20-year license was extended for another seven years. If that approach was correct, the court asked, what would prevent the Minister from granting a 100-year or 200-year exclusive license?
The court said that since the Act contemplated that applicants have a legitimate expectation that their applications would be genuinely considered
“The legitimate expectation arises from the words of the statute. They have the right to apply. To have the right to apply without a further right to have it genuinely considered would be meaningless.”
The court said, therefore, that while the Minister may have a policy regarding granting licenses, and then after hearing an applicant, declines to grant a license in light of the policy, this will not be wrong once the Minister has exercised an “honest and bona fide exercise of discretion.”
What is not permissible, is adopting a position which would result in other applicants not being considered at all.
The court noted that JPS stressed the significance of its investment in the provisions of electricity but said that:
“…as important as economic considerations are, the rule of law is even more important. Since we are developing a society based on the rule of law then the law must be followed. The Minister cannot exercise a power that in law he does not have.
The way out of the problem (if it is seen as a problem) is to amend the law to give the Minister the powers he needs to implement the policy of the government.”
The Role of the Office of Utilities Regulation (OUR)
The claimants argued that the OUR had recommended an exclusive license and had therefore acted contrary to section 4 (3) (a) the OUR Act which states that the OUR “shall undertake such measures as it considers necessary or desirable to (a) encourage competition in the provision of prescribed utility services.”
The opening words of the license stated that the Minister was granting the license “having regard to recommendations of the OUR” but did not specify what the recommendations were.
In fact, a letter dated March 15, 2001 the OUR expressed its opposition to the Minister’s proposal to exempt JPS from the Fair Competition Act, but the Minister ignored the recommendation. The Court therefore held that the OUR had done nothing unlawful.
The Use of Parliamentary Records and Pepper v Hart
The claimants attempted to rely on Pepper v Hart, a House of Lords case which dealt with using statements in Parliament to help interpret statute. Sykes J. indicated his discomfort with that case, and with the concept of using a statement made by one Minister in Parliament to try to interpret what the Parliament as a whole intended in passing a statute.
“Pepper v Hart is not a case which should be followed without extreme care and caution…It is well known that ministerial, assignments are often the product of political considerations rather than the person’s actual expertise in a particular area. The Minister may not know much about his portfolio prior to his assignment. His statements to Parliament are often prepared by advisors and senior civil servants, Sometimes the legislation comes after extensive public discussion. All this shows that Pepper v Hart is not without difficulties and should be avoided.”
From time to time, we hear objections to questions being asked in the Jamaican House of Representatives, on the basis that they are not in keeping with the Standing Orders. In my last post here, I looked at what the Standing Orders say about the manner of asking questions in the House.
In this post, let’s continue to look at how questions are to be asked (or not!)
Section 16 PROHIBITS asking questions that:
raise an issue already decided in the House, or which has been fully answered during the current session, or for which an answer has already been refused;
seek information about matters which are, by their nature, secret;
raise issues that have come up in a Committee, but which have not yet been reported to the House in a report;
raise matters related to a Commission of Enquiry or which are within the jurisdiction of the Chairman of a Select Committee;
raise matters dealing with the character or conduct of any person except in his official or public capacity;
reflect on the decision of a Court of Law, or which is likely to prejudice a matter being tried before a Court;
reflect on the character or conduct of any person whose conduct can only be challenged in a substantive motion under section 35, which deals with the conduct of speeches;
ask whether statements in the press, or made by private individuals or unofficial organisations are correct;
for which the answer can be found in an official publication;
which refer discourteously to, or seek information about the internal affairs of any territory within the Commonwealth or a friendly foreign country;
deal with the actions of a Minister for which he is not responsible to the legislature;
seek, for matters of argument, information of past history;
raise questions of policy too large to be dealt with in the limits of answer to a question.
A question shall not solicit an opinion, or the solution of an abstract legal question or a hypothetical proposition.
Many people believe that it is time for a comprehensive review of the Standing Orders, and we will look at that in the future. Watch out for my next post on the Standing Orders. Which, if any, of these would you want to see revised?