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.