Second and final exchange with Dr. Stoddart

Here is the final instalment of my exchange with Dr. Stoddart.




My first email to Dr. Stoddart of Feb. 13, 2008
Thank you for your reply, Dr. Stoddart. If you have not already done so, I would suggest that you read the affidavit of Daisy Coke, which I believe sets out a clear and compelling chronology of the PSC/Vasciannie saga. The Sunday Observer of February 3 had a lead story based on this affidavit, which has not been so far been publicly denied by Dr. Sangster. For ease of reference, the affidavit can be seen here: http://www.scribd.com/doc/2034515/affidavit-coke-daisy.

While you are more than entitled to defend Dr. Sangster, I do think that it behooves you to do so on the basis of established facts, and not personal affiliation. I note that you have not addressed, much less controverted any of the facts that I adduced in my initial response to you.

Again, I am surprised that you placed the burden of this imbroglio on Prof. Vasciannie's shoulders, when indeed he did nothing more than fairly compete for and win selection for the post of Solicitor General, something which he was entitled to do. I am puzzled by your recommendation that Prof. Vasciannie should have withdrawn and then sought arbitral or judicial recourse. Again, you appear intent on exempting the government from any responsibility for creating this situation in the first place. It is the government that deliberately chose to flout the law, not Prof. Vasciannie. It is the government's flagrant assault on the rule of law that created this mess; not Prof. Vasciannie's 'failure' to withdraw. A Solicitor General is, among other things, expected to stand up for, and uphold the rule of law. As a candidate/selectee for this position, what message do you think Prof. Vasciannie would have been sending if he withdrew in the face of this assault on the rule of law?

Generally, I don't think that Jamaica can afford to squander a talent like Stephen Vasciannie. It seems to me that you have overlooked this dimension in your consideratio of this issue. The government's behaviour (and indeed Dr. Sangster's) is hardly likely to be conducive to attracting young, bright, competent professionals to the public service. Your position implicitly endorses the alienation of talent in favour of placating personality. If your conscience can live with that, so be it. You will definitely have the Jamaica you deserve.

Best regards,


Hilaire Sobers

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Dr. Stoddart's reply (Feb.13, 2008)

Dr. Sobers:

Thanks for the link to Commissioner Coke's affidavit. I read the document thoroughly and it has now concretised my position that Dr. Vasciannie should have withdrawn his name from contention from the very minute that Attorney General Lightbourne objected to working with him.

I have been in similar situations on various sides of a saga of this nature. Whether or not I had much to contribute to the organization, my primary concern was for peace and reconciliation, and I would not insist on placing myself in a messy situation even on a matter fo principle. That matter of principle I would have dealt with but not trying to get the office where other vital people with whom I would have to work did not wish to work with me.

I am now extremely surprised that following the first meeting with the PM none of the PSC members had the common sense to see that if both AG Lightbourne and PM Golding objected to Dr. Vasciannie's appointment then they should have got to work making a different recommendation to the Governor General!!! Preferably starting from scratch and not giving in to the AG's insistence on Leys nor the PM's insistence on Foster. Seek the high road of compromise.

How could a government work well with both the AG and the PM objecting to the Solicitor General's suitability, for whatever reason? The smooth functioning of the government is as important as justice being done for Dr. Vasciannie. When the controversy developed, it was immediately important to seek both (smooth government function and justice for Dr. Vasciannie) in different forums.

The details from Commissioner Coke re the Lackston Robinson matter clearly showed that more efficient rules must be put in place to avoid playing party politics and personality power play with vital government appointments. It also shows that some single person must be given veto power in cases where significant deadlocks occur. Of course, we have the courts but if litigation can be avoided it should be.

I think the GG has veto power in appointing the SG, given what I have read, that the PSC's recommendation is just that, a recommendation. However, I'll leave that to the attorneys.

I could have sat down and commented point by point to the issues that you raised but I chose to make an overall assessment of the situation and now conclude from reading Commissioner Coke's affidavit that Dr. Vasciannie should have stepped in and withdrawn his nomination. Whatever misconduct or other problems existed on the part of the government or the PSC could have been dealt with in less public and more efficient manners. I smelled political "fishiness" in both the SG and Lackston Robinson issues, based on reading Commissioner Coke's affidavit. Thus, more efficient rules must now be put in place to avoid such mess in the future. Now, let the courts decide what is just. God bless.
-M. Stoddart

P. S. I know both Dr. Sangster and attorney Robinson personally and can vouch for their impeccable Christian characters.

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My follow-up to Dr. Stoddart of February 13, 2008


Dr. Stoddart:

Based simply on the affidavit, please tell me how and when Dr. Vasciannie would've known that the AG objected to his selection? I see nothing in the affidavit that indicates that the AG's objection was directly communicated to Dr. Vasciannie. Based on my own inquiries, I understand that the Attorney General had very cordial relations with Dr. Vasciannie up to the time that the PSC recommended his selection as SG. As you are aware, Dr. Vasciannie is a Deputy Solicitor General. Accordingly, I am even more perplexed by your insistence that Dr. Vasciannie should've withdrawn.

Once again, your critique of the PSC's recommendation of Dr. Vasciannie (in the face of objection by the AG/PM) betrays either an ignorance of, or contempt for the rule of law. I have repeatedly stated that the selection of public service officers is constitutionally outside of the remit of politicians. Do you not see the implications of allowing the political directorate to dictate appointments to the public service? If the political directorate is permitted to dictate who should be Solicitor General, why shouldn't they similarly be allowed to dictate selection of judges, police officers, et al? Do you not understand the design of Jamaica's constitution that expressly confers this power on Service Commissions? Following your argument, why not simply abolish these commissions and leave all of these appointments to be made by the political directorate of the day? For a man who applauded Dr. Sangster for his 'principled stance', you appear to be remarkably permissive with respect to the government's palpable failure in this regard. Perhaps, it has eluded you that the erosion of the rule of law is but the first step towards totalitarianism. In essence, this is what you argument boils down to: that the government should be allowed to do as it pleases without reference to the rule of law.

Dr. Stoddart, for your information, the GG has no discretion to veto a recommendation from the PSC or any other Service Commission. This is well established in constitutional/public law. As a matter of law, the GG has no discretion to reject any 'recommendation' or 'advice' that comes to him from any other constitutional functionary. Service Commissions are themselves appointed by the GG on the advice of the Prime Minister after consultation with the Leader of the Opposition. The GG, by law, MUST act on the advice tendered by the PM. There is no question of discretion on the part of the GG in deciding whether to accept the PM's selection of commission members. If you wish to read further on this, I would recommend Caribbean public law scholars like Lloyd Barnett, Albert Fiadjoe, Ralph Carnegie, and Francis Alexis. Areas in which the GG can exercise discretion is very limited, for example, the selection of his Privy Counsellors.

I am not sure how read 'party politics' and 'personality' into the situation of Lackston Robinson, as you suggest. It's really quite simple. Lackston Robinson was retired in the public interest as well as sent on leave. This followed an adverse performance review by the then Solicitor General. The Supreme court held that the decision to retire/send him on leave was wrong. The PSC was at all times entitled to retire Mr. Robinson in the public interest, provided that it did it in accordance with the law. Following the judgment, the PSC did not take this approach, and instead sought to place Mr. Robinson elsewhere in the public service. Mr. Robinson has objected, and followed this up with another round of litigation. That's all there is to it. Interestingly, you appear to ignore the clear play of politics and personality in the government's opposition to Stephen Vasciannie.

With all due respect, Dr. Stoddart, the "Christian" character of Dr. Sangster and Mr. Robinson is completely irrelevant to the issues at hand. Frankly, I don't really care what their religious beliefs are. What I do care about is compliance with the rule of law which protects all of us, regardless of our religious, political or other persuasions.

Best regards,

OHS

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Dr. Stoddart's final response of Feb. 13, 2008

Dr. Sobers:

Many of the questions you raised have been already answered by me or by others whose comments have been published in the press or in the affidavit of Commissioner Coke. The ultimate answers will come from the courts as this matter is litigated and decided.

I admire your passion for the rule of law and I have much confidence in the Jamaican justice system, having worked in it myself. However, in your haste, you often overlook a few obvious points, e.g., the fact that there was obvious political power play and personality clashes in the Dr. Vasciannie v. the AG and the Dr. Vasciannie v. the PM situations, as I analysed them.

There are a few judges and attorneys whom I know personally, including some who once were legal advisors to PM Patterson, to AG Nicholson, to Minister Phillips, et al, upon whom I could call to interpret that matter re the GG's options when "recommendations" have been given to him but this Dr. Vasciannie matter will be decided in the courts and we will all live with the courts' decisions.

Having not yet met him, I can only say that Dr. Vasciannie seems like an honourable man, from all that I have read, and I am sure that he too will do all within his power to see that justice is done. Having known Dr. Sangster and Attorney Robinson for many years, I can vouch for their impeccable Christian characters (more ethics than religion here). I still maintain very strongly that I would have withdrawn my name from recommendation, had I sat where Dr. Vasciannie sat, and then proceeded to seek justice in some other forum. The nation's business must go on and I pray that all three-- smooth government operation, justice for Dr. Vasciannie, and for the dismissed members of the PSC-- will be achieved. I have no doubt that your erudite participation in the public debate will help Jamaica to make corrections where necessary and perhaps avoid such a mess in the future. God bless.

-M. Stoddart