No to a wimpy Senate
KAMINA JOHNSON Smith, who is now the leader of government business in the Senate, was a member of that chamber during the legal wrangle over the use by Andrew Holness, then the opposition leader, of pre-signed letters to purportedly effect the resignations of Arthur Williams and Christopher Tufton from the Upper House.
Ransford Braham, a former attorney general, who is now a senator, was one of Mr Holness’ lawyers in his 2015 appeal against the Full Court’s ruling that his action was unconstitutional and, therefore, null and void. Mr Holness also lost at appeal.
In the circumstance, Mrs Johnson Smith and Mr Braham should have a full grasp of the reasoning of the appeal justices and of the court below. Nonetheless, it might be useful to rehash a few points established during that case, including an observation, in the lower court, by Justice Daye, about the nature of the Senate in the context of the Jamaican Parliament.
Justice Daye – with whom Justice Brooks at appeal agreed – held that not only did the Senate enjoy security of tenure, but that it had independence of deliberations; and that there was separation of powers, as well as “checks and balances of power within the legislature”.
All this is relevant in respect to last week’s passage by the Senate of the International Corporate and Trust Service Act, which, in the normal course of events, would have been an uneventful exercise, but for Clause 28 and its handling by the government side, led by Mrs Johnson Smith.
This clause makes it criminal if a person operating under the act fails to “exercise all such reasonable diligence” to prevent an action they did not intend, but is in breach of the law. Opposition member Mark Golding pointed to the potential chilling effect of the clause, which “crosses the normal line between civil liability and criminal liability”.
Mr Braham agreed that Mr Golding had made “a good jurisprudential point” and noted that in such circumstances, where there was no criminal intent, “civil liability” is normally opened to, and pursued by, persons hurt by failure of due diligence.
MATTER OF POLICY
Aubyn Hill, a key adviser to Prime Minister Holness, working from the finance ministry, but wearing, he said, his hat as a businessman, found “great sympathy” with Mr Golding’s observation. Mrs Johnson Smith did not disagree, but declined to entertain an amendment to the clause. It was a “matter of policy” whose change, she suggested, she was uncomfortable to countenance.
She had a number of options. Having agreed that the clause is flawed, she might have suspended the debate, to allow for a discussion with the bill’s mover, Finance Minister Audley Shaw, to agree on what is to be done. Or, preferably, she might have encouraged senators on her side to vote their conscience, in which, if the clause was amended, the House of Representatives would decide what it wanted to do when the bill returned there.
In the event, Mrs Johnson Smith used the whip to ensure the passage of the bill as is, saying that she would discuss the concerns raised with Minister Shaw. Perhaps unsurprisingly, when opposition member Lambert Brown called for a divide on the clause, Messrs Braham and Hill voted in its favour.
The Senate is a substantive, independent, deliberative chamber, part of the checks and balances of the legislature, which Justice Daye highlighted, but which Senator Johnson Smith and her colleagues seemed fearful of embracing.