Senator for life of Parliament

Abe Dabdoub, Guest Columnist

Recently, the question of whether the leader of the Opposition has the right to revoke the appointment of a senator has been the subject of discussion.

Gordon Robinson, in a recent article, appears to be suggesting that the leader of the Opposition has the right to revoke the appointment of opposition senators. To support this point of view, he drew attention to the Court of Appeal case of Eugennie Ebanks v The Betting, Gaming and Lotteries Commission (Civil Appeal No. 97 of 2003; Judgment December 20, 2005) in which he states that Dr Lloyd Barnett submitted that "it is an elementary rule of statutory interpretation that, in a statute, a provision empowering an entity to employ also carries with it a right to dismiss".

The correct answer to the question as to whether the leader of the Opposition can dismiss a senator appointed on his advice is to be found in sections 35, 41 and 44 of the Constitution of Jamaica and not in the case cited by my friend, which speaks to a different proposition of law.

Senate appointments

Section 35 provides that the Senate shall consist of 21 members appointed by the governor general, 13 on the advice of the prime minister and eight on the advice of the leader of the Opposition. The appointment is by the governor general under the Broad Seal and not by the leader of the Opposition or the prime minister. The Constitution contains no provision empowering the governor general, whether or not, acting on the advice of the leader of the Opposition or the prime minister, to revoke any appointment to the Senate.

Section 41 of the Constitution is the section which provides for the tenure of office of a senator and provides the basis on which his seat may become vacant. Some of its provisions are set out hereunder.

41 (1) The seat of a member of either House shall become vacant - (a) upon the next dissolution of Parliament after he has been appointed or elected;

(b) if he resigns his seat;

(c) if he is absent from sittings of the House for such period and in such circumstances as may be prescribed in the Standing Orders of the House;

(d) if he ceases to be a Commonwealth citizen or takes any oath or makes any declaration or acknowledgment of allegiance, obedience or adherence to any foreign power or state or does, concurs in, or adopts any act done with the intention that he shall become a subject or citizen of any foreign power or state;

(e) if any circumstances arise that, if he were not a member of the House, would cause him to be disqualified for appointment or election as such by virtue of paragraph (b) or (g) of subsection (2) of Section 40 of this Constitution;

(f) if he becomes a party to any contract with the Government of Jamaica for, or on account of, the public service :

Provided that -

(i) if in the circumstances it appears to the Senate (in the case of a senator) or to the House of Representatives (in the case of a member of that House) to be just so to do, the Senate, or the House of Representatives (as the case may be), may exempt any member from vacating his seat under the provisions of this paragraph, if that member, before becoming a party to such contract as aforesaid, discloses to the Senate or to the House of Representatives (as the case may be) the nature of such contract and his interest therein;

(ii) if proceedings are taken under Section 44 of this Constitution to determine whether a senator or a member of the House of Represen-tatives has vacated his seat under the provisions of this paragraph, he shall be declared by the court not to have vacated his seat if he establishes to the satisfaction of the court that he, acting reasonably, was not aware that the firm or company was or had become a party to such contract.

Same tenure as members

It is clear from Section 41 (1) (a) that the tenure of office of a senator is the same as that of an elected member to the House of Represen-tatives and is for the life of the Parliament. Section 41 (1) (b) to 41 (1) (f) states the basis on which his seat may become vacant, as does Section 41 (3) and Section 41 (4).

The important section which unambiguously indicates that neither the governor general, the prime minister or the leader of the Opposition has the authority or power to remove a senator once he is appointed is Section 44 (1).

Section 44 (1) states very clearly that any question whether (a) any person has been validly elected or appointed as a member of either House; or any member of either House has vacated his seat therein or is required, under the provisions of subsection (3) or subsection (4) of Section 41 of this Constitution, to cease to exercise any of his functions as a member, shall be determined by the Supreme Court or, on appeal, by the Court of Appeal, whose decision shall be final, in accordance with the provisions of any law for the time being in force in Jamaica and, subject to any such law, in accordance with any directions given in that behalf by the chief justice.

I trust I have been helpful in clarifying for my dear friend and colleague, Gordon Robinson, and for the public in general, that once a senator is appointed, his seat can only become vacant if he resigns or one of the conditions for vacancy set out in Section 41 (1) (3) and (4) are met and that in the case of there being any question as to whether any of these conditions have been met, only the courts are empowered to make a determination.

Abe Dabdoub is an attorney-at-law. Email feedback to columns@gleanerjm.com.