My letter on PSC litigation settlement finally appears in the Observer of December 18, 2008

The Observer has finally published my letter on the settlement of the PSC litigation.

It's interesting, but not surprising that the Observer itself has not had any editorial comment on the outcome of the litigation and the implications thereof.

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Epilogue- my last letter to the press on the PSC issue

A week ago I submitted a letter to both Jamaican daily newspapers on the 'settlement' of the PSC litigation. So far neither of them have seen fit to publish it, so I am posting it here for those who are interested.



Dear Editor,

The former PSC members have capitulated to the PM and the AG under the guise of a “settlement”. Contrary to media hype, the PM has not apologized for, or withdrawn his claim of misbehaviour. This capitulation could have been done much more efficiently by simply resigning a year ago instead of pursuing expensive time-consuming litigation. The capitulation of the PSC litigants effectively completes the constitutional castration of the PSC, and sets a precedent for the Prime Minister and his successors to impose their will on other Service Commissions. I don’t see any Service Commission nominating candidates for positions without first checking with Jamaica House.

Alfred Sangster gloatingly characterizes his erstwhile colleagues as “arrogant and stupid” for having the temerity to stand up to the Prime Minister and his Attorney General. Dr. Sangster is certainly entitled to his opinion, but I would suggest that his justification for withdrawing his endorsement of Prof. Stephen Vasciannie is just as susceptible to the label of stupidity, if not arrogance. A year after he was fired, Dr. Sangster still has not mastered the concept of constitutional misbehaviour; he now accuses his former colleagues of ‘sociological and political misbehaviour’, a concept unknown to Jamaican constitutional law.

Piously, Dr. Sangster claims that he was “praying that some solution would come” and that he is “very happy that this has come, so people have to make friends again and people will have to restore relationships and dignity". What Dr. Sangster didn’t mention is that his “prayers” included interjecting himself in the litigation by filing two affidavits in support of the Prime Minister and Attorney General. These affidavits were filed on October 20 and October 23, 2008, less than two months before the scheduled start of the litigation on December 08, 2008.

At the end of the day, all of the ex-PSC members have capitulated to Prime Ministerial tyranny, aggravating the damage already inflicted on the constitution and the rule of law. I hope that future generations will be more forgiving of them than I am.

Yours truly,

O. Hilaire Sobers
ohilaire@yahoo.com
Washington, DC
December 10, 2008

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Lucius White slams the PSC settlement

Lucius White's "letter of the day" in the Gleaner of December 15, 2008 captures much my own sentiments on the PSC settlement/capitulation:


http://www.jamaica-gleaner.com/gleaner/20081215/letters/letters1.html

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The capitulation of the PSC

As I said on RJR on Monday December 8, the so-called settlement of the litigation between the ex-PSC members and the PM & AG was really a capitulation. Despite what has been reported in the media, the PM did not withdraw the charge of misbehaviour. According to the joint press release by the parties:


The Parties accept that it is not in the national interest to pursue this matter and have agreed to discontinue the action. (Paragraph 3)

The Parties accept without admission that the working relationship between the Parties has irretrievably broken down so that any workable association depending on trust and confidence has been rendered impossible. In the circumstances, this situation is not conducive to good governance and the national interest (Paragraph 4)

The First Respondent [the Prime Minister] states categorically that the recommendation for the termination of the Claimants' appointment as members of the Public Service Commission was not intended to suggest, or be construed that there were any acts of dishonesty, corruption or personal misbehaviour on the part of the Claimants during their tenure as members of the Public Service Commission. (Paragraph 5)

The Respondents recognize the services of the Claimants in various areas of national life and thank them for their services. (Paragraph 6).





The "national interest", rather than being enhanced by this so-called settlement, has been betrayed. The Public Service Commission is constitutionally designed to operate independently of the political directorate. The Judicial Service Commission and the Police Service Commission have the same constitutional status. The immediate effect of the "settlement" is to transform the PSC and their fellow Service Commissions into extensions or satellites of the political directorate. I cannot see any of the Service Commissions now daring to nominate candidates for appointment without getting the all-clear from Jamaica House. Members of Service Commissions can expect to have no better security of tenure than members of statutory boards. So from now on, whenever there's a change of government, I expect that members of Service Commission will meekly offer their resignations to give the new government a free hand in ensuring that these Commissions remain satellites of the prevailing party in power.


In his affidavit of March 12, 2008, the Prime Minister justified his dismissal of the ex-PSC members on the ground of misbehaviour. To say that the dismissal of the members "was not intended to suggest, or be construed that there were any acts of dishonesty, corruption or personal misbehaviour" does not constitute some sort of apology for, or withdrawal of the PM's broad allegation of misbehaviour. As I have noted in previous posts, "misbehaviour" has a particular legal meaning. Apart from that, at no point during or before the litigation was there any allegation made of "dishonesty, corruption or personal misbehaviour" as such. So really, what is the purpose of including this in the press release?

For the PM, the "misbehaviour" of the ex-PSC members included:

* nominating Stephen Vasciannie for the post of SG in the face of objections by the AG; and in breach of "assurances" that the they would make no nominations without first consulting the AG and the PM (para. 19)

* including non-PSC members like John Leiba and Carlton Davis in the deliberations leading up to the nomination of Stephen Vasciannie (para. 19)

* an adverse judicial review of the PSC's decision to retire Lackston Robinson in the public interest; attempting to "destroy" the reputation of Lackston Robinson by removing him from his post at the AG's Department; (paras. 9, 20)

* bias in the treatment of Douglas Leys' application for SG vis a vis Stephen Vasciannie's application (paras. 9, 20); this bias was supposedly aggravated by the fact that Pauline Findlay and Michael Hylton have a "personal relationship" (para.9;); that this factor militated against Douglas Leys' application because Michael Hylton (as SG) had recommended Lackston's removal and Douglas Leys had opposed it.


Very curiously, at paragraph 22 of this affidavit, the Prime Minister clearly states that:

"I took the view...and remain firmly of the view that all these matters constituted misbehaviour on the part of the members of the Public Service Commission...which destroyed any possible working relationship based on trust and confidence that ought to exist between the Commission and the Government..."

This sentiment is largely reproduced in paragraph 4 of the joint press release. In the absence of any evidence to the contrary, it seems fair and reasonable to infer that the PM has not altered his fundamental position that the ex-PSC members were guilty of misbehaviour that warranted their dismissal. Notions of working relationships, trust, confidence have no relevance to the legal question of whether the ex-PSC members were justifiably dismissed or not. In any event, the supposed decomposition of the relationship between the Commission and the government was prompted entirely by the government's unlawful resistance to the Commission's selection of Stephen Vasciannie as SG. In both the affidavits of the PM and the AG, the implication is clear that the PSC would not have been fired had they simply acceded to the AG's demand to 'reconsider' the nomination of Stephen Vasciannie.

I previously already addressed the PM's ridiculous claim regarding the Lackston Robinson litigation. It is worth emphasizing that this litigation occurred a year before the PM took office, and there is no record of the PM alleging misbehaviour against the PSC while he was Leader of Opposition. The very notion that an adverse judicial ruling is now ground for dismissal is an extremely dangerous precedent to set, something which appears to have eluded the Jamaican intelligentsia and public on a whole.

As I said on RJR last week, the PSC litigants have regrettably opted to treat this litigation as some sort of private dispute between themselves; and in the process completely ignoring the public interest implications of so doing. The actual terms of the settlement are confidential and the parties are enjoined from discussing any aspect of the settlement publicly. The failure of the PSC to pursue this litigation means that the Supreme Court of Jamaica has been deprived of the opportunity to pronounce on the critical constitutional and legal issues arising, particularly, the question of "misbehaviour". Other issues that have gone by the way side include the question of whether the PSC members were afforded natural justice before dismissal.

Instead of acting in the national interest, the PSC has left Jamaica with a prime ministerial definition of "misbehaviour" which the current PM and his successors will be free to apply until and unless they are restrained by judicial intervention.

To add insult to injury, former PSC member Alfred Sangster has wasted no time in characterizing his erstwhile colleagues as "arrogant and stupid" for daring to stand up (initially) to prime ministerial tyranny. According to a Gleaner report of December 09, 2008, Sangster identified disagreements with the PM and the treatment of Lackston Robinson "were areas in which the public service commission was in fact arrogant and in my view, stupid, at times, and really should have had a lot more dialogue with the PM."


Sangster has removed any doubt about the who owns his balls. And it ain't him. Shamelessly, he allowed himself to be fired for "misbehaviour" when indeed at he wasn't even a PSC member at the time of the Lackston Robimson episode. Apart from that, he still pushes this dead cat nonsense as a ground for disqualifying Stephen Vasciannie from holding the position of SG. In this regard, he has continued to "sweat Bruce's fever" to borrow an expression from Belize. Golding himself has never asserted that Vasciannie's dead cat reference was a disqualification, so why does Sangster continue to take it upon himself to do so? And really now, if Sangster felt so strongly that his colleagues were going in the wrong direction, why didn't he simply resign before being fired?

On the other hand, I think the ex-PSC members deserve the opprobrium that has been heaped on them by Sangster. While I don't think they were arrogant or stupid, per se, their capitulation has left them entirely vulnerable to attacks of this kind. That for me, is stupid, if not arrogant.

All of the ex-PSC members including Sangster have betrayed the public interest.


Piously, Sangster welcomed the news of the "settlement" claiming that:

"I was praying that some solution would come and I am very happy that this has come, so people have to make friends again and people will have to restore relationships and dignity,".

As I have said in a letter to the newspapers (so far unpublished), Sangster has not indicated that his "praying" including an affidavit in support of the PM and the AG. So how does Sangster credibly claim to be favouring settlement when up to October 2008, he was a active participant in the litigation against his ex-colleagues? And how do you publicly trash your ex-colleagues and then expect people to "make friends again" and "to restore relationships and dignity"? Is this guy kidding me???


Almost a year ago, I started this blog perhaps in the vain hope of mobilizing, if not engaging public opinion on this crucial issue involving the rule of law, governance and constitutionalism. I said in my introduction that:


The rule of law in Jamaica is under serious threat, following the government's opposition to the appointment of Stephen Vasciannie as Solicitor General of Jamaica, and its subsequent dismissal of the Public Service Commission for alleged "misbehaviour".


Following the capitulation of the PSC, the rule of law is now under even greater threat. What strikes me as particularly sad and disappointing is the virtual lack of public outrage at this development. If the newspapers are anything to go by, only D.S. Morgan has expressed any disquiet over the capitulation of the PSC. See letter in Jamaica Observer, December 12, 2008: http://www.jamaicaobserver.com/letters/html/20081211t190000-0500_143608_obs__b_dear_editor___b_.asp


If the Jamaican public doesn't care about the rule of law in Jamaica, then perhaps the time has come for me to follow their example. I won't be updating this blog anymore unless there is some development that warrants it. I doubt that will happen.

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PSC litigation settled...much to my disappointment

The litigation initiated by the fired PSC members has been settled. I haven't gotten all the details of what prompted the parties to settle, but there is a story on the Gleaner/Power 106 website today on it. http://go-jamaica.com/news/read_article.php?id=5099.

I am disappointed at this outcome and will comment later on when more information is at hand.

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Abject Alfred

Alfred Sangster has filed an affidavit in defence of the PM and AG in the litigation brought against them by his erstwhile PSC colleagues.

The affidavit can be found at: http://www.scribd.com/doc/8526690/Alfred-Sangsters-Affidavit.

Sangster's affidavit demonstrates a comprehensive surrender of whatever was left of his backbone and indeed another part of his anatomy that is associated with manhood.

Sangster's affidavit largely elaborates on his earlier public excoriation of his PSC colleagues. Some of the salient elements of his affidavit are as follows:



1. Sangster supported Vasciannie's appointment as SG until his 'discovery' of Vasciannie's 'dead cat' comment. According to Sangster, he was unaware of this comment until he read about it in a Mark Wignall column published in December 2007.

2. After a round of meetings with the PM/GG, he claims that he prepared a letter of resignation dated November 26, 2007 (before seeing the dead cat comment, but was persuaded not to proffer it because of the implications of his "JLP" name. At paragraph 14, Sangster states that he supported Vasciannie's nomination until he discovered the dead cat comment. At a meeting of the PSC on November 26, 2007, Sangster confirms that he was part of a unanimous recommendation to affirm Vasciannie's nomination as SG.

3. Sangster claims that he tried to persuade his colleagues to reconsider Vasciannie's nomination in light of the dead cat comment, but without success. Incredibly, Sangster claims that Vasciannie had an obligation to disclose the dead cat comment, despite wide publication of the comment in 2002 in Vasciannie's own column in the Gleaner.


4. Sangster accuses Pauline Findlay of being "high-handed" in refusing to reconsider the nomination of Stephen Vasciannie (in light of the objections of the PM). For Sangster, Pauline Findlay's position established the PSC's position of "arrogance and non-retreat". Sangster states that Pauline Findlay's 'high-handedness' occurred at a meeting of the PSC on October 31, 2007 (following a meeting on the same day between the PSC and the PM).

5. Sangster further accuses the PSC of improper conduct in failing to reinstate Lackston Robinson in his position at the AG's Chambers. Sangster was not a member of the PSC when the Supreme Court quashed Robinson's retirement in the public interest. Sangster claims that the PSC's attempt to assign Robinson to the Tax Administration Department was "an attempt to circumvent the judgment of the Court".

6. Ultimately, Sangster accuses the PSC of misbehaviour for (a) their "arrogant position" to the Prime Minister "and in the decisions they made"; (b) their conduct with respect to Lackston Robinson. Sangster concludes that "it was unthinkable for me, and still is to become embroiled in a legal suit against the Prime Minister and tangentially the Governor General, which is in my opinion not in the public interest."


I so hope that the Claimants will ask for Sangster to be produced for cross-examination. It is quite obvious that Sangster was cowed by the PM's displeasure, forgetting (?) that the PSC doesn't exist to rubber stamp the directives of the executive arm of government. This is clearly revealed by Sangster's characterization of the PSC as arrogant for refusing to bow to the PM.

Sangster shamelessly parades the 'dead cat' comment as justification for reconsidering Vasciannie's nomination, despite the fact that he had endorsed Vasciannie even after his supposed letter of resignation of November 26, 2007. Sangster's discovery of the dead cat comment can after the meeting of November 26, 2007. What then was the reason for threatening to resign at a time when he was unaware of the comment, and indeed had already endorsed Vasciannie? Sangster himself says that he only changed his mind about Vasciannie after the dead cat comment (paragraph 14). Of what relevance was a five year old comment to Vasciannie's qualifications for the job of SG? Is Sangster saying that any criticism of politicians disqualifies competent professionals from holding positions in the public service??

If Sangster was so uncomfortable generally about the behaviour of the PSC, why didn't he simply resign without more?

The PSC's role in the Robinson litigation is one of the grounds of "misbehaviour" cited by the PM in firing the PSC members, including Sangster. As a matter of pride, one might have thought that Sangster would object to being indicted for misbehaviour, together with his former colleagues. Instead, Sangster ends up condemning his colleagues (and himself by extension), by obsequiously parrotting the PM's indictment of the PSC. Apart from this, Sangster wasn't part of the PSC at the time of the adverse judicial review against the PSC. On what moral or legal authority does Sangster pontificate on the implications of the ruling or the PSC's decision to transfer Robinson elsewhere?


In my view, the only PSC member guilty of 'misbehaviour' is Sangster himself. As a member of the PSC, he was obliged to exercise constitutional authority independently of the views or preferences of the Prime Minister or his surrogates. He was likewise obliged to exercise his authority unfettered by irrelevant, and indeed irrational considerations such as Vasciannie's so-called 'dead cat comment'. Sangster has revealed himself to be little more than a cowardly mouthpiece for the JLP government. In plain terms, Sangster is a damn disgrace, an embarrassment to the office that he held, and indeed to the national honour he holds.

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Judicial review hearing to start on December 8

It's been a while since I posted. In a month (December 8), the judicial review hearing is scheduled to start. I understand that the legal team representing the Daisy Coke et al will include Hillary Phillips, QC and Andre Earle of Rattray Patterson Rattray. Dennis Morrison was originally the lead counsel, but he has since been elevated to the Court of Appeal.

One hopes that the hearing will not be delayed. It is scandal that the applicants have had to wait for almost a year for a hearing. I will update the blog on this litigation as information becomes available.

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The government continues to politicize the public service- appointment of Marcia Forbes

It should not surprise anyone that the ruling JLP has now engineered the appointment of Marcia Forbes as the Permanent Secretary of the the new Ministry of Telecommunications & Mining. As the Gleaner points out in its editorial of September 08, 2008, Mrs. Forbes' competence is not in issue; its her allegiance to the JLP. It is no secret that Mrs. Forbes was a leading member of the JLP's communications and advertising team in the last general elections.



Despite Mrs. Forbes' qualifications, it is difficult to resist the inference that Mrs. Forbes's appointment is more about rewarding her political loyalty than her competence. The Opposition PNP has said as much. According to Mrs. Forbes, she simply "heard" about the vacancy. There is no evidence (so far) that the position was advertised or that other candidates were short-listed. Mrs. Forbes appointment reinforces the status of the Public Service Commission as an extension of Jamaica House. A pliant eunuch no less. The Gleaner editorial rightly notes that a connection has been made between the Forbes' appointment and the Vasciannie/PSC imbroglio. The Gleaner also reminds us of the JLP's campaign promise of transparent governance, which evidently has gone the way of all flesh, given other partisan appointments such as Joan Gordon-Webley and Sherene Golding. In terms of public service appointments, the JLP government's methodology of appointment is fundamentally no different than that of the notorious Pickersgill Committee of the 1970s.

Curiously, the Gleaner seems to think that despite Mrs. Forbes' political baggage, she will be a 'natural fit' and that she "will do a good non-partisan job." What a non-sequitur! While there is no quarrel about Mrs. Forbes' competence, it certainly cannot follow that competence equals non-partisanship, or indeed the appearance of it! The notion of appearance of non-partisanship being as important as the actual non-partisanship still hasn't caught on in Jamaica.


The Gleaner lamely concludes that the

The issue, though, has to move beyond this specific appointment and Mrs Forbes to a full and frank debate about the structure of government and the constitutional framework within which the country manages its affairs. We start on the basis of the Constitution being as it is now and has to be respected, but that does not mean we have to be ossified.


The Jamaican press, including the Gleaner, has consistently let governments off the hook when it comes to governance. We don't need any debate about the structure of government, blah blah. We've already had many such debates. What is required is for the government to be held to account for contaminating the rule of law and the constitution that governs us. Why doesn't the Gleaner start there?

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Plums for the boys?

In this year's Independence honours, the government has conferred the Order of Jamaica on Mr. R.N.A. Henriques "for contribution to the legal profession". According to David P. Rowe (in the Sunday Herald of August 10, 2008) this award is "richly deserved". Prof. Rowe praises Mr. Henriques for being "a mentor to junior lawyers in our jurisdiction", and that "Senior politicians, oil companies and high net worth individuals have properly trusted their legal business to him". Prof. Rowe also cites Mr. Henriques' "extensive Privy Council experience" as "an attribute which few Jamaican practitioners can overcome".

I am not sure why extensive Privy Council experience is something to 'overcome', but I digress.

What Prof. Rowe does not mention in his panegyric, is that Mr. Henriques appears to be the personal lawyer of the Prime Minister. Mr. Henriques heads the legal team defending the PM and the AG in the litigation initiated by Daisy Coke, et al to challenge their dismissals.


On appearance alone, it is difficult to resist the cynical conclusion that Mr. Henriques is being honoured more for his loyalty than his track record at the Bar. While Mr. Henriques is undoubtedly an able lawyer, I can't see anything in his resume that particularly distinguishes him from the rest of the legal profession. Certainly, Mr. Henriques has largely been a preserver of the status quo; there is nothing that I can attribute to him that has been in any way ground-breaking or which has palpably advanced the legal profession as a whole.

The award of OJ to Mr. Henriques reminds me of the OJs conferred by the PNP government on David Coore, Winston Jones, and Ralph Brown. On the face of it, the OJs were just plums for the boys more for for loyalty than national contribution. I am not saying that Mr. Henriques is a party hack. I am simply saying that I see nothing in his resume to merit the award, other than his connection to the Chief Servant.

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Lackston Robinson is back at the AG's Chambers

The Gleaner of August 07, 2008, reports that Lackston Robinson is back at work at the Attorney General's Chambers. Not surprisingly, the SG has expressed great joy at his return. I understand that Mr. Robinson is now the Director of Litigation in place of Nicole Foster-Pusey, who is now on pre-resignation leave.

The Gleaner's report had a couple of errors which I pointed out in a note to Associate Editor Colin Steer in an email today (August 09, 2008)







Colin,

While it is true that Justice Jones quashed the PSC's decision to retire Lackston Robinson in the public interest, it is not true that

a) Justice Jones ordered Lackston Robinson to be reinstated, or

b) that Justice Jones criticized the PSC for sending Mr. Robinson on leave.

If you read Justice Jones' judgment, you will see that it was the Permanent Secretary in the Ministry of Justice who sent Mr. Robinson on leave. Indeed the litigation was not only against the PSC but also against the PS. The judge found that the PS' decision was ultra vires, and accordingly, it was quashed by an order of certiorari. Any judicial criticism of the decision to send Mr. Robinson on leave would accordingly been directed only at the PS, and not at the PSC.

There is really no legal basis for assuming that Mr. Robinson has been 'returned', when indeed, the effect of the judgment is that he never left.

If you have not seen the judgment, I would be happy to send it to you.

Hilaire

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