The Constitution is sacrosanct

THIS NEWSPAPER believes that prime ministers and opposition leaders ought to have the power to recall persons they cause to be appointed to the Senate. For not only are these appointees likely to be members or supporters of the party of the leader that chose them, they would be expected to support the party’s policies and programmes, especially on crucial votes, except released by the whip, or on fundamental matters of conscience.

But as Prime Minister Andrew Holness discovered when his party was in Opposition, senators, once appointed, are under no such obligation and can’t be removed. Indeed, the courts, in the case involving Arthur Williams and Christopher Tufton, held that Mr Holness could not use resignation letters, pre-signed by the duo, to dislodge them from the Senate.

Once appointed, a senator, unless he voluntarily relinquishes the appointment, is in the seat for the life of the Parliament. Further, a senator has to voluntarily resign under his own hand. Mr Holness had no agency in the matter. His action, therefore, was unconstitutional.

DON’T TRIFLE WITH CONSTITUTION

So, as uncomfortable as Mr Holness may have been, he had to abide with Mr Williams, ironically the architect of the scheme, and Dr Tufton until he had the opportunity to make new appointments – this time from the office of prime minister.

For it to have been otherwise, it would have required changes to the Constitution. And that can’t happen at a whim. The Constitution isn’t to be trifled with at any uncomfortable moment for a leader. If that were the case, the rights and freedoms of citizens, guaranteed by the Constitution and its role as framework for orderly, democratic government, wouldn’t be secure.

The point is this: It is not for the Constitution to accommodate laws, however well intentioned, that abrogate its tenets, but for those laws to be constant with its creed. When conflicts arise over the interpretation of these, or whether laws fit within them, these disputes are resolved by the courts.

NIDS CHALLENGE

It is against this backdrop that we view the People’s National Party’s constitutional challenge of the law to establish a National Identification System, into which residents of Jamaica are to be registered, including demographic and biometric information. Without this registration and the unique number associated with it, persons will be unable to access government services.

The PNP insists that the law runs counter to the fundamental rights and freedoms guaranteed by the Constitution, especially its protection of privacy and of equal treatment under the law.

The courts may well hold the opposition party to be wrong, in which event, all will be well. The Government could move ahead with the NIDS project. A ruling in the Opposition’s favour, however, would be disruptive to the Government. It would be limited in its use of its preferred tool to deliver a programme that it believes to be for the public’s welfare. It would, therefore, have to retreat to the drawing board to redesign the project.

But the discomfiture of the Government, or the delay of a law of potentially good value, can’t be the logic for not resolving constitutional questions or to give a pass to those that may be constitutionally defective.

That would be opening the door to even larger encroachments, and, maybe, ultimately, the loss of rights and the death of freedoms. If the Constitution is lost in time and is a constraint to progressive action, then amend it – in the clear light of day.

With respect to the current case, if the court believes the PNP’s challenge is without merit or an abuse of process, the judges will no doubt throw it out at the start. In any event, it is a hopeful sign of a maturing democracy when serious issues such as this are resolved in the courts rather than on noisy platforms or, worse, in the streets.