Dr Paul Ashley, Contributor

On November 26, 2007, The Gleaner published an editorial titled "When the Constitution is not a shackle" addressing the reported calls for Stephen Vasciannie to withdraw his application to be appointed solicitor general and the buzz about the plans by the prime minister to fire the members of the Public Services Commission (PSC).

Displaying apparent presentiment at the time, the editorial encouraged Vasciannie and the PSC to seek the court's protection in the event that their recommendation of Vasciannie was rejected and/or they were fired. The stout assertion was made that "fundamental principles, particularly, the notion of the Constitution as the supreme law, are at stake". Weeks later both incidents occurred.

PM's opinion

Recently, RJR reported in relation to the Daryl Vaz v Abe Dabdoub case that Prime Minister Bruce Golding was determined that Dabdoub would not gain entry to the House of Representatives by way of the courts. The following comment have been attributed to the prime minister:

"I'm not going to allow anybody to sit in Parliament who was rejected by the people at the polls purely on the basis of some legal or constitutional technicality."

This statement should be cause for concern among all. The prime minister plays no role in determining who sits in Parliament, save for any part he plays in the selection of members of his own party to run as candidates. The maxim 'Democracy is the government of the people, by the people, for the people' does not mean that anyone who is voted for by the people is entitled to be the people's representative. If the candidate is not qualified to run, then he is not entitled to be the people's representative.

Law of Jamaica

The Constitution of Jamaica is the supreme law of Jamaica. All laws must be made in accordance with the Constitution; and to the extent that they are inconsistent, the Constitution will prevail. Decisions of the court in relation to all laws, including constitutional law, must be obeyed. If one fears or anticipates that a decision will be unfavourable, one should not seek to prevent the applicant from exercising his right of appeal. To dismiss it as a 'technicality' suggests that it is meaningless, useless, not worthy of application but worthy of contempt.

Dabdoub has the legal right to appeal to the Court of Appeal of Jamaica. A threat to call a general election in the event Dabdoub files an appeal or succeeds in the Court of Appeal could be interpreted as an attempt to circumvent that process or to extinguish that right. While the prime minister has the right to call general election, it was imprudent to wield it as a big stick to impose, threaten or deny others who wish to stand up for the rule of law.

More fundamentally, the Court of Appeal is the final court in matters relating to election petitions. Golding's comments could be interpreted not only as prejudging the merits of the appeal, but exerting undue influence over the Court of Appeal, especially in light of the growing chorus that a general election is the last thing Jamaica needs at this time.

Curtail the powers

In his inaugural address at the swearing-in as prime minister, Golding pledged to curtail the powers of the executive and strengthen Parliament in his bid to create a framework for good governance. This is laudable; but if the prime minister is to be taken at his word and trusted as new and different, he must be seen to respect the laws of Jamaica. Any acts which are imposed based on the whim of one man without regard for the rule of law are liable to be viewed as acts of dictatorship or tyranny. For as the referenced Gleaner editorial asked:

"If the Constitution is not a shackle to prime ministerial (mis)behaviour, what then is sacrosanct under the law?"

Dr Paul Ashley is an attorney-at-law of Ashley &Ashley of 1 Braemar Avenue, Kingston 10.