NNN "This Morning" Programme and the AG's Chambers

Earlier this month, it was reported that the PSC cancelled the appointment of Nicole Foster-Pusey as acting Solicitor General, after the PSC's Chief Personnel Officer (CPO) had approved it at the request of the acting Solicitor General, Patrick Foster.

Emily Crooks and Naomi Francis, hosts of NNN's "This Morning" programme obtained copies of correspondence between Patrick Foster, Acting Solicitor General and the CPO, and discussed the issue at some length on Wednesday, March 26, 2008, and again on March 27, 2008. I appeared on the programme on March 27 in an attempt to clarify some of the misconceptions of the hosts, and indeed confusion on their part. It turns out that Patrick Foster had made two recomemndations: appoint Nicole Foster-Pusey as acting Solicitor General and Lackston Robinson as acting Director of Litigation in her stead. The hosts appeared to have little appreciation of the roles of the acting Solicitor General and the CPO. At one point they suggested that Patrick's recommendations were perhaps motivated by mischief, and that it might have been better for him to wait for the new SG to be installed. Both sought to read something possibly untoward in the CPO approving the recommendations, given the previous turbulence in the AG's Chambers. Incredibly, the hosts did not ask the most fundamental question: why did the PSC withdraw approval of the acting Solicitor General's recommendation? This deficiency, among others, prompted me to send the hosts a couple of emails, edited versions of are reproduced below.





My email of March 26, 2008
Subject: this morning's segment on the AG's Chambers (March 26, 2008)


Ladies,

Kudos for publicizing the correspondence between the acting Solicitor General and the Chief Personnel Officer of the PSC regarding the aborted acting appointments of Nicole Foster-Pusey and Lackston Robinson.

However, I must tell you that had I not known a thing or two about the civil service and the AG's Chambers, I would've been completely lost by your discussion this morning. To some extent I don't think either of you were clear on a few fundamentals of the civil service. For example:

1. Like all public authorities, the PSC has the power to delegate certain of its functions. In a bureaucracy of the size of Jamaica's, you really wouldn't expect the PSC to personally attend to every personnel decision, particularly acting appointments. The bureacracy would come to a grinding halt if every single personnel decision had to be made directly by the PSC. In this context, the Chief Personnel Officer (CPO) would presumably be authorized to take decisions on the PSC's behalf relating to the recommendations of acting appointments of the sort made by Patrick Foster, QC, acting Solicitor General. Invariably, bureacrats like the CPO preface their letter with "I am directed to.." That sentence is there for a good reason, to emphasize that the official in question is not acting on their own initiative, but at the behest of the relevant authority (in the case the PSC). You both seemed to think there was something mysterious or questionable about the CPO's letter approving the recommendations, when there really isn't. Obviously, the PSC has the power to override the CPO, which apparently occurred in this case, when the approval was withdrawn. The other thing to bear in mind, is that the PSC/CPO is almost invariably likely to act on the recommendations of permanent heads of government departments (acting or substantive), since those senior officials will be most familiar with the needs of their departments and with the capacity of the personnel that they manage on a daily basis.

2. There is no rational basis for arguing that Patrick Foster should've refrained from making recommendations pending the installation of the SG, or that he was somehow being mischievous in making those recommendations. Again, this betrays an ignorance of the way the civil service works. Patrick, as acting SG, exercises the same powers as if he were the substantive holder of the position. He is not merely a caretaker. As a responsible chief operating officer of the Chambers, he is obliged to promote the efficiency of the Chambers, which includes making recommendations for acting positions where, in his judgment, the need arises. Further, you will note that his recommendation was that the acting posts be approved 'pending further orders'. Clearly, this implies that the tenure of the acting positions could later be terminated or modified on the recommendation of the substantive SG, or anybody else who is appointed to act in his/her stead.

I really think that you should both consult with an expert on civil service practice, someone perhaps like retired Cabinet Secretary Carlton Davies. This, I believe, would enhance your presentation of this issue immensely.

Finally, I think that in all of the discussion this morning, the most critical issue was missed: why did the PSC withdraw its approval of Patrick's recommendations? I know the answer. I hope you do do.


Hilaire



My email of March 27, 2008

Dear Emily & Naomi,

Thanks for having me on this morning.

Patrick Foster's resignation occurred around the same time that his recommendations were ultimately rejected by the new PSC. There is little doubt in my mind that the PSC was politically strong-armed into cancelling the acting appointments.

The Attorney General has personal animosity towards Nicole Foster-Pusey, hence the objection to Patrick's recommendation. The AG has personally taken up Lackston Robinson's cause. This is evidenced by a number of things, including her personal intervention with the Ministry of the Public Service to have Lackston reinstated despite the fact that there was still litigation pending in the matter. She also instructed the AG's Chambers to withdraw from this litigation. As you know, the parties had agreed on asking Justice Jones to clarify his judgment as to whether it included an order of reinstatement or not. While this process was ongoing, the AG ordered her staff to withdraw from the litigation.

As you may know, the case of Lackston Robinson is front and centre of the PM's justification for firing the PSC. Nobody in the media has really explored why. Nobody has asked why the AG has taken such an active interest in Lackston Robinson and his treatment by the PSC. By contrast, the Police Service Commission was similarly hauled over the judicial coals for retiring Det. Insp. Donovan O'Connor in the public interest. The government has not sought to equate an averse judicial review of this Police Service Commission decision with "misbehaviour". Why not?

Further, what seems to have eluded the media is that Justice Jones had harsher words for the Permanent Secretary Carol Palmer that for the PSC. Mrs. Palmer was responsible for sending Lackston Robinson on leave pending his litigation challenging his retirement in the public interest. Mrs. Palmer remains the Permanent Secretary, to the best of my knowledge. If the PSC deserved to be fired, in the eyes of the government, why not the Permanent Secretary? I don't know if you have read Justice Jones judgment. If you haven't, I would suggest that you do.

Despite all the hoopla by the AG and her PM, Justice Jones never ordered Lackston's reinstatement, as I have explained to you before. This is clear from the judgment itself. In any event, the judge would've lacked the jurisdiction to do so, for reasons that I have previously explained.

Btw, Naomi, I heard you apply a corporate analogy to the relationship between the Ministry of Justice and the Attorney General's Chambers that is incorrect. You suggested that the Ministry of Justice is some sort of parent company for the AG's Chambers. This is not so. There is no such 'corporate relationship'. Under the constitution of Jamaica, the AG is a separate and independent functionary. In fact there is no mention of a Minister/Ministry of Justice in the Constitution While the roles of AG and Minister of Justice are frequently combined, they are legally quite disparate. Accordingly, as I have said to you before, the AG's Chambers is not subordinate to the Ministry of Justice. For certain adminstrative purposes only, the PS of the Ministry of Justice does handle certain matters pertaining to the AG's Department. However, this does not make the AG's Chambers legally subordinate to the Ministry. It perhaps would be easier to understand were the posts of AG and Minister of Justice held by separate individuals. You may or may not know that there is no legal requirement for the AG to be a cabinet minister or indeed a parliamentarian.

I honestly think that your attention with respect to this issue should be far more sharply focused on the issue of political interference, particularly by the AG. The pattern has clearly been demonstrated with the derailment of Stephen Vasciannie's selection as SG, and the subsequent firing of the PSC. Do you honestly believe that the new PSC can do anything other than toe the JLP line? That is why it acted with dispatch to reverse the CPO, once it realized that the AG objected to Nicole Foster-Pusey's acting appointment.

There is hardly a doubt about AG's agenda to eliminate so-called PNP lawyers and replace them with loyalist-lawyers. You mark my words. I am prepared to bet that Lackston Robinson will be installed as a Deputy Solicitor General before mid-year. Further, I prepared to bet that within two years or less, the entire civil service will be dominated by JLP loyalists. Check out what's been going on in the Ministry of National Security. Check out which Minister's daughter has recently gotten a plum job despite her complete lack of qualifications for it. I say no more.

Best regards,

Hilaire