Affidavits of Bruce Golding and Dorothy Lightbourne

Bruce Golding and Dorothy Lighbourne have filed affidavits in response to the application for judicial review initiated by Daisy Coke, et al. The affidavits are dated March 12, 2008. I have posted the affidavits under "PSC litigation documents" (see sidebar).

Bruce Golding's affidavit can also be found at http://www.scribd.com/doc/2361819/Affidavit-of-Bruce-Golding.

Dorothy Lightbourne's affidavit can also be found at http://www.scribd.com/doc/2361817/Affidavit-of-Dorothy-Lightbourne.

Both affidavits make for interesting, but disturbing reading. Neither the AG nor the PM appear to have even the most rudimentary grasp of the rule of law or the respective roles of the political directorate and the Public Service Commission. The constitutional reform champ and his AG both operate on the assumption that the PSC operates to follow their dictates instead of the constitution of Jamaica.


The Attorney General denies that she ever said to Daisy Coke that the only person she was prepared to work with was Douglas Leys. However, this is exactly what the AG told me when I spoke with her by phone on or about October 31, 2008. Both affidavits have focused a lot of attention on the PSC's apparent bias against Douglas Leys. Assuming that the PSC's process was vitiated by bias or some other defiency, wouldn't this be unfair to all of the candidates, and not just Douglas Leys? Surely, it would not be fair to either Stephen Vasciannie or Patrick Foster if their candidacies were evaluated and decided in a process that was substantively or procedurally flawed. However, it is clear that neither the AG nor the PM were concerned about the principle of fairness per se, as opposed to strong-arming the PSC into withdrawing its selection of Stephen Vasciannie in favour of Douglas Leys. It is quite clear, from the tenor of the affidavits, that had the PSC simply acceded to the AG's wishes, the PSC would not have been fired for 'misbehaviour'.

The AG's affidavit repeats her public objection to Stephen Vasciannie on the basis of his supposed lack of litigation experience. It seems to me that if litigation experience was the premier qualification for the job of Solicitor General, then surely Patrick Foster would've been a better choice than Douglas. While both are experienced litigators, Patrick has litigation experience at both the public and private bars, while Douglas; experience has been at the public bar only. The AG still has not grasped the role and function of the Solicitor General. As I have said before, the Solicitor General's primary role is that of an adviser/administrator, not that of a litigator. Litigation is simply one of five areas in the AG's Chambers, and certainly is not the dominant area of activity in the Chambers. Quite fatuously, the AG dismissed concerns expressed by the PSC about Douglas' interpersonal skills, stating that she wasn't interested in his "social skills", but "required a functioning Solicitor General". In which galaxy does the the AG think that interpersonal skills are unimportant in the management of lawyers?? Given her own record of alienating members of her Chambers, it is quite clear what little premium she places on getting along with her colleagues.


One of the more bizarre elements of the AG's affidavit is that this is the first time that I have ever heard a public functionary invoke the doctrine of legitimate expectation in response to a claim of abuse of power!! Legitimate expectation is a well-known doctrine in administrative law. It was this doctrine that Lackston Robinson invoked when he challenged his non-appointment as Deputy Solicitor General after acting in the post for a year. Essentially he claimed that he had a legitimate expectation (as opposed to a substantive right) of being appointed to the post, having acted. This claim was eventually dismissed. In short, legitimate expectation is only invoked by persons who are challenging an adverse decision by a public functionary. I have never seen it invoked as a defence by a public functionary to a claim of abuse of power.

In administrative law, public functionaries/bodies have a duty to be fair in making decisions, particularly where those decisions may adversely affect the rights or interests of others. Where a public authority has given a promise or representation to a person that a particular practice (or pattern of decision-making) will continue, administrative law recognizes that in those circumstances, a legitimate expectation may reasonably arise on the part of an interested or affected party that the practice or pattern of the public authority will continue until and unless the public authority first signals otherwise. The concept of legitimate expectation connotes the idea of inculcating an expectation in the citizen by a public authoriy that a rule, policy, practice,or scheme will continue. In this context, the citizen has a legitimate expectation that he/she will enjoy benefits of such rule, policy, or scheme, and will not be deprived thereof unless there is some overriding public interest,or that the public authority has signalled an end to a relevant rule, policy, practice, or scheme. The idea is that a person may be unfairly prejudiced by an adverse decision by a public authority when the public authority has previously represented (expressly or impliedly) that it would do otherwise. However, as indicated before, the doctrine of legitimate expectation is may only be invoked by ordinary citizens who may consider that they have been treated unfairly by a public authority. It does not apply to public functionaries like the AG and the PM, and certainly not as a defence to their own administrative malfeasance.

In this case, both the AG and the PM have relied on the legitimate expectation that the PSC would not have selected a candidate as SG without first consulting with them. The AG bases this on some assurance allegedly offered by Daisy Coke that "I could not recommend someone with whom you could not work."

I simply do not buy the AG's story that Daisy Coke gave her any such assurances. Firstly, as an experienced member of the PSC, I can hardly see Daisy Coke essentially agreeing to surrender the PSC's discretion to the AG. Secondly, Daisy Coke would hardly have been in a position to bind the PSC with respect to such an assurance, even if it had been given. Thirdly, as a matter of law, the PSC was never obliged to consult the AG or the PM; as such,any consultation could only reasonably be construed as a courtesy, but certainly not a command. Such assurance, even if had been given, could never be binding as a matter of law. This is rudimentary adminstrative law. Why is the AG pretending not to know this? Then again, maybe she doesn't!

This nonsense argument betrays a pathetic effort by the AG and PM to sanctify their outrageous assault on the rule of law.

Both the AG and the PM treat this supposed failure of the PSC to consult with them, as if it were some fatal breach of the law. Ironically, they assail the perfectly lawful participation of John Leiba and Carlton Davies in the deliberations of the PSC. I can see the lawyers for the PSC having a field day cross-examining the AG and PM on this issue! I wonder if it has occurred to either the AG or the PM, that had the PSC acceded to their wishes, that the PSC would then be in palpable breach of the law.

I find it mind-blowing that Bruce Golding considers his meeting with the PSC on Oct. 31 as the equivalent of a hearing!! He compounds this fatuity by claiming that he subsequently 'discovered' that Pauline Findlay previously had a relationship with Michael Hylton, which supposedly compounded the "appearance of bias". Even if he could pretend that the meeting on Oct 31 was a "hearing", where was the hearing on this issue?? For there to be even a pretence of a hearing, he would've been obliged to at least call on Pauline Findlay for her side of the story, which he clearly didn't. It's incredible that Bruce Golding has the audacity to claim that all the Commissioners had ample opportunity to respond, when at no time did he formally request any of them to show cause why they shouldn't be removed for misbehaviour, much less provide particulars of the alleged misbehaviour.

The PM claims in his affidavit that Alfred Sangster offered to resign during the Oct 31 meeting with the PSC. If this were so, why didn't Sangster say this when he publicly distanced himself from his erstwhile colleagues? I have little doubt that this so-called offer of resignation is nothing more than a figment of the PM's imagination. Interestingly, the PM has not explained in his affidavit why he fired Sangster, when Sangster wasn't part of the panel that interviewed the candidates for Solicitor General, nor was he a member of the PSC when Justice Jones ruled against the PSC on the retirement of Lackston Robinson in the public interest. Again, I can see lots of cross-examination material for the lawyers representing Daisy Coke, et al.

Dorothy Lightbourne states in her affidavit (paragraph 3) that "Professor Stephen Vasciannie was a part time officer contracted to the former
Attorney General, the Hon. A.J. Nicholson, to deal with international matters and
was later made a supernumery (sic)".

This is complete crock. AJ did not, and could not have contracted Stephen Vasciannie.
Stephen was recruited as a Consultant in the Attorney General's Chambers at the level of Deputy Solicitor General, with primary responsibility as Head of the International Division of the Chambers. Stephen reported to the Solicitor General (Mike Hylton) and not directly to AJ. The AG is clearly trying to create the impression that Stephen was a political appointee, working directly for AJ, which is not true.

After a year as "Consultant", both Stephen's title was changed to "Deputy Solicitor General"; but with no change in functions. In this context, Lightbourne's reference to supernumerary is also misleading because it does not say supernumerary at what level; the level was that of Deputy Solicitor General. In effect, Stephen worked as a Deputy Solicitor General (with that title) for four years. The AG appears to have deliberately obscured or distorted the facts on this issue. Obviously, Stephen's employment record with the AG's Chambers would not only be documented, but the AG herself would have direct access to this record.

One can only infer that the AG fully intended to smear Stephen Vasciannie as a partisan functionary operating at the behest of the previous PNP Attorney General, and by extension, the PNP iself. This is consonant with her unsubstantiated belief that under the PNP regime, the AG's Chambers had been taken over or had become dominated by 'PNP' lawyers. While the AG claims that her principal objection to Stephen Vasciannie's selection as SG was on account of his purported lack of litigation experience, her deliberate mischaracterization of his employment status strongly implies that she simply saw him as a PNP operative who needed to be eliminated. As I have said before in other commentaries, there is little doubt as to the partisan agenda of the AG in her approach to the AG's Chambers. This most recent evidence of this is the obstruction of Nicole Foster-Pusey's appointment as acting Deputy Solicitor General.

The affidavits of the PM and AG have a number of exhibits, including the correspondence between the PM and the Leader of the Opposition that preceded the formal dismissal of the PSC members by the Governor General. What is obvious from the correspondence is that the PM had not intention of addressing, much less taking into account any of the legitimate concerns expressed by the Opposition Leader. I remain amazed that the PM, with his reservoir of political experience has handled this issue so ineptly, with no vision other than short term partisan gain. The vision for Jamaica that he so eloquently articulated on September 11, 2007, continues to be betrayed.