By Dionne Jackson Miller
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?
The fact is that the court regarded the constitutional principles involved as superseding the considerations relating to what Justice McDonald-Bishop referred to as his “significant complicity” in the matter.
Justice McDonald-Bishop, with whom Justice Daye concurred, having referred scathingly to what she described as the “ill-conceived and nonsensical terms of the letters” spent several pages of her ruling on the issue of Williams’ involvement.
She considered the legal maxim that “he who comes to equity must come with clean hands” referring to a legal principle that one who is seeking an equitable remedy from the courts must not himself have engaged in misconduct in the matter. Although Justice McDonald-Bishop stated that Williams would have failed in his bid, were he seeking an equitable remedy, such as an injunction, she concluded that the “clean hands” principle could not be successfully invoked in this matter. (His initial application for an interim injunction had been refused).
She stated that the action being considered was one that would have:
“far-reaching implications for the system of governance in Jamaica within the constitutional framework. The court’s ever-present duty to guard its judicial and administrative processes from abuse must be balanced against the public interest in ensuring the lawful conduct of government, the protection of fundamental rights and freedoms and the preservation of the supremacy of the Constitution.”
Williams, she therefore held, was entitled to succeed on his claim that the letters and use were unconstitutional despite his “unfortunate complicity”.
The main point to note is that the Court determined that the issues involved, which Justice McDonald-Bishop listed as the unconstitutionality of the scheme that Williams devised and participated in, the conduct of Holness, whom it had influenced, the potential adverse impact of that scheme on constitutional democracy, and the need to deter others from engineering similar devices to circumvent the Constitution, were all significant considerations to be weighed. Having done so, the Constitutional principles weighed more heavily.
In fact, Justice Batts referred to what he called a constitutional imperative that, once appointed to the Senate, Senators should operate with a free will, and not make decisions out of fear of being removed from office. The invocation of any kind of principle such as the ‘clean hands’ doctrine would therefore “frustrate the Constitutional intent,” he wrote.
The Constitution is the Supreme Law of Jamaica. Section 2 of the Constitution states that “…if any other law is inconsistent with this Constitution, this Constitution shall prevail…”
The unanimous judgment in Williams v Holness represents the Supreme Court’s assertion of the supremacy of the Jamaican Constitution and its importance in checking the actions of the Executive and the Legislature.
The Trinidadian jurist, then Chief Justice Hugh Wooding, said in the seminal case of Collymore v A.G., that the Supreme Court is the “guardian of the Constitution.”
The ruling in Williams v Holness shows the Supreme Court asserting its role as guardian of the Constitution and protector of fundamental rights and freedoms.
As a result, Arthur Williams, despite the fact that his hands were not “clean,” was able to successfully petition the Court for relief from a scheme he himself participated in, and that resulted in his unlawful and unconstitutional dismissal from the Senate.
However, since “he, as an attorney-at-law, was the author of this unlawful scheme” as Justice Batts put it, the Court declined to award him his legal costs, which is a very strong expression of judicial disapproval of his conduct.
Dionne Jackson Miller hosts the radio current affairs programme "Beyond The Headlines" on RJR 94 FM and "All Angles" on TVJ. An attorney at law, she has a Masters in Human Rights Law. She has tutored in Constitutional Law, and Media Law and Ethics at the University of the West Indies. She’s the current president of the Press Association of Jamaica.