The matter arose based on the recent Constitutional Court ruling that the removal of Arthur Williams and Dr. Christopher Tufton from the Senate in 2013, through the use of previously signed, but initially undated letters of resignation, was unconstitutional, as the effect of the letters was null and void.
In a Statement to the Senate, President, Floyd Morris, said the question of membership has arisen subject to section 44 (1) of the Constitution of Jamaica and Section 3 of the Parliament (Membership Questions) Act and as such, the matter is required to be referred to the Supreme Court for determination .
He noted that to date, he has received no formal indication of the ruling from the Supreme Court, but sought advice from the Attorney General after he received a letter from the attorney at law representing both Mr. Williams and Dr. Tufton.
“On Tuesday, February 10, 2015, I received a letter from Mr. Wenworth Charles, attorney at law for Mr. Arthur Williams and Dr. Christopher Tufton. The letter indicated to me a decision that was handed down in the Constitutional Court of Jamaica in a case Williams versus Holness. This is the only communication that I have received. Upon receiving the letter, I immediately sought formal advice from the Attorney General, the Chief Legal Advisor to the Government of Jamaica on the matter,” he said.
Attorney General Patrick Atkinson advised that Arthur Williams and Dr. Christopher Tufton were the rightful holders of the two Senate seats as despite submitting letters of resignation, former Opposition Senators, Arthur Williams and Dr. Christopher Tufton, remain members of the Upper House, based on the Supreme Court ruling.
Mr. Atkinson sad his opinion was based on the Court’s judgment that the Leader of the Opposition’s request for and procurement of the pre-signed and undated letters of resignation and authorization, and the manner of their use to effect the resignation of the Senators, were “inconsistent with the Constitution, contrary to public policy, unlawful and is, accordingly, null and void.”
In light of these rulings, the Attorney General has indicated that “I am of the opinion that Mr. Williams and Dr. Tufton still are members of the Senate and are entitled to take their seats.”
Relying heavily on the ruling handed down by the three-member Supreme Court panel, the Attorney General, concluded that “in the light of the Court's declaration that Senator Williams' and Senator Tufton's letters of resignation were null and void; they did not resign and therefore there were no vacancies in the Senate."
He pointed out that "it would follow, that having regard to the mandate of the Constitution, concerning the numbers of persons that may be appointed, the appointment of two additional senators would be unconstitutional."
The Senate President, not satisfied that there was clarity in the Attorney General’s explanation, sought clarity prompting a resolution moved by Leader of Government Business, Senator A. J. Nicholson:
WHEREAS on the 14th day of November, 2013, letters purporting to be letters of resignation from Mr. Arthur Williams and Dr. Christopher Tufton were tendered to the Governor-General by the Leader of the Opposition;
AND WHEREAS on the 28th day of November, 2013, Dr. Nigel Clarke and Mr. Ruel Reid were purportedly appointed to the Senate;
AND WHEREAS on the 6th day of February, 2015, the Supreme Court in a claim filed by Mr. Arthur Williams against the Leader of the Opposition, declared that the request for, procurement of, and manner of use of pre-signed and undated letters of resignation and letters of authorization to effect the resignation of Mr. Arthur Williams and Dr. Christopher Tufton, as well as the letters of resignation and letters of authorization, were inconsistent with the Constitution, contrary to public policy, and are accordingly null and void;
AND WHEREAS the Senate requires direction as to the practical application of this judgment to the composition of the Senate:
BE IT RESOLVED THAT, in accordance with section 44(1) of the Constitution, the following questions be placed before the Court by the Clerk to the Houses upon petition pursuant to section 3 of theParliament (Membership Questions) Act for declarations to be made –
a) Are Mr. Arthur Williams and Dr. Christopher Tufton subsisting members of the Senate in accordance with the Constitution of Jamaica?
b) If the answer to (a) above is Yes, were the purported appointments of Dr. Nigel Clarke and Mr. Ruel Reid as members of the Senate null and void?
If the answer to (a) above is No, were the purported appointments of Dr. Nigel Clarke and Mr. Ruel Reid as members of the Senate valid and effective, and do they remain members of the Senate in accordance with the Constitution of Jamaica? Dr. Nigel Clarke and Ruel Reid, the two men who had been appointed in place of Senators Williams and Tufton in 2013, were absent from the sitting.