Constitutional crisis in Jamaica: the Solicitor General, the PSC and the Prime Minister

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

2008-12-18T07:39:00.003-05:00

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.

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

2008-12-17T11:03:00.003-05:00

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 Contrary to media hype, the PM has not apologized for, or withdrawn his claim of misbehaviour.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

Lucius White slams the PSC settlement

2008-12-15T07:25:00.002-05:00

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

The capitulation of the PSC

2008-12-14T15:38:00.007-05:00

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.

PSC litigation settled...much to my disappointment

2008-12-08T15:01:00.002-05:00

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.

Abject Alfred

2008-11-29T11:03:00.021-05:00

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.

Judicial review hearing to start on December 8

2008-11-08T20:11:00.003-05:00

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.

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

2008-09-09T20:29:00.007-04:00

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?

Plums for the boys?

2008-08-10T10:02:00.006-04:00

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.

Lackston Robinson is back at the AG's Chambers

2008-08-09T17:19:00.004-04:00

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

This is why lawyers left, Senator Tavares-Finson

2008-07-24T22:36:00.008-04:00

I have been remiss in not issuing this follow-up post for the benefit of Senator Tavares-Finson. Senator Tavares-Finson would have us believe that the Attorney General is a paragon of virtue who has been unfairly blamed for the exodus from her Chambers. A good friend and supporter of the blog has suggested a few reasons for the exodus. Senator Tavares-Finson might wish to consider them when he is through flying over the AG's nest.

Here goes:

1. The AG directed then Acting SG Patrick Foster to take over a case from Nicole 3Foster Pusey when the latter had argued a point contrary to the JLP's position regarding the election in Eastern Hanover. The point that she argued was accepted by the court as good law. Why would the AG seek to intervene in a case of such a sensitive nature, but more in the "party political" meaning of sensitivity?

2.The AG directed the Executive Committee to cease and desist from making recommendations for appointments and promotions in the Chambers. She later reiterated this view at a general meeting of attorneys where she indicated that she was to be involved in any such decisions. Why would the AG, as a politician, seek to be involved in the staffing of the public service in this way? This was a concern, though she never actually made any recommendations in that area.

3. The AG commanded the Department to take no steps in seeking clarification of Jones J's order in the Lackston Robinson case, despite their being good grounds for seeking this clarification. In the context of at least one other case, Jones J's order was not the model of clarity. Bear in mind that, at the time, Mr. Robinson had two appeals pending against Government in that area. Was it appropriate for him to resume duties in the Department that had conduct of the respondent's case?

4. The AG sought to publicly vilify Prof. Vasciannie in the Senate regarding the Trafigura Affair, for the sin of advising the government on what needed to be done to facilitate an investigation (and for also pointing out the implications of not facilitating the investigation). She certainly broke tradition when she tackled the matter the way she did that day. This may be seen in the context of her opposition to his appointment as SG, and her ceasing to seek his advice thereafter on any matter.

5. The AG ranted at the Acting SG when he recommended that Nicole Foster Pusey act as Deputy SG, while he was acting as SG. When a new SG was appointed the Acting SG would revert to his post as Deputy SG, and Nicole would revert to her post as Director. One does not need to be a particle physicist to see the connection between that and the almost immediate withdrawal, without any reason being given, of the approval previously given to that recommendation, certainly by the Chief Personnel Officer and arguably on behalf of the Public Service Commission, a practice previously sanctioned with respect to acting appointments.

6. the AG insisted that the FINSAC files be retrieved from Mike Hylton (where they were at FINSAC's request) and be dealt with by the Chambers. It became obvious immediately that the Chambers, with its current workload and its depleted staff, could not take those files "cold" and argue the upcoming appeal in the Paul Chen Young case at the designated time, so the matter had to be farmed out to another private lawyer whose first action was, of course, to seek a postponement of the appeal so that he could prepare.

7. The direct, and angry intervention of the AG when Nicole Foster Pusey agreed not to pursue costs against Abe Dabdoub after his victory in the courts over Daryl Vaz. It may be noted that Dabdoub lost on the point involving the Returning Officer and the Chambers. Bear in mind that Dabdoub had actually withdrawn his original Petition and replaced it with one in which he did not actively pursue the case against the Returning Officer and the Attorney General. A question of interest would be: should costs be paid by him in that context?

For the benefit of Senator Tavares-Finson, and others of like mind, it was instances such as these that led some members to reason and ask themselves why should they have to put up with situations like that, particularly when they were being paid quite inadequately for the hard work and level of skill they brought to bear on the work that they were doing.

The AG has not always been an ogre in her dealings with the Chambers. In fact some members of staff have noted that she has been consistently pleasant in her dealings with them. It makes one wonder why she chose to be so unpleasant in her dealings with others and with certain issues. Was that in keeping with her nature, or was she "only obeying orders"?

Patrick Foster replies to Tom Tavares-Finson

2008-07-22T14:07:00.005-04:00

I am belatedly mentioning that Patrick Foster, QC, replied comprehensively to Tom Tavares-Finson's specious claims about the AG's Chambers. Patrick's letter appeared in the Observer of July 13, 2008:

http://jamaicaobserver.com/letters/html/20080712t220000-0500_137806_obs_so_unfair__senator_tavares_finson_.asp

Patrick asserted that in his "capacity as deputy solicitor-general and acting solicitor-general", he had had "detailed discussions with all the attorneys who have recently resigned from the Chambers and none have indicated to me that their resignations were related to the attorney-general's review of the fee arrangements in the Chambers". Unless Tom Tavares-Finson can demonstrate that Patrick is being untruthful, I do believe he owes an apology (at the very least) to the lawyers of the Chambers.

Patrick indicated that the attorneys left for a variety of reasons, but declined to disclose any of them. I think this is a pity, as I do think that the public does deserve to know in clear and unambiguous terms the reasons for this unprecedented exodus from the AG's Chambers.

Patrick made it clear that none of the attorneys had any objection to the AG's review of the fee-charging practice. Similarly, none of the attorneys had any objection to the AG setting or reviewing policy in this area. He clarified that this practice is authorized by the Staff Orders, a minor detail that Tavares-Finson omitted to mention in his assault on the lawyers of the Chambers. It is curious, but not surprising, that the AG herself is yet to speak on the matter, either to defend her staff or to correct Tom Tavares-Finson's wild allegations.

I am still hoping that former staff lawyers at the AG's Chambers will step forward and disclose precisely what has transpired since Dorothy Lightbourne became AG in September 2007. This is not a private matter, and the public interest demands full disclosure, in my view. I suspect that public servants are loathe to expose malfeasance or abuse of authority occurring in their departments. Presumably, this is in keeping with the culture imposed by the Official Secrets Act. For me, remaining silent is the equivalent of protecting those would abuse the authority that has been entrusted to them by the public.

We will see.

Link to Trafalgar Council

2008-07-22T13:59:00.003-04:00

Joseph Cox,a 'bredrin' of mine, and a former radio commentator has kindly shared a link to his excellent blog "Trafalgar Council". One of the latest issues addressed by the blog is a critique of the government's plan to criminalize motorists who are unable to produce driver's licences on demand. This is one of the so-called anti-crime initiatives being contemplated by the government in violation of international and domestic human rights laws and norms.

One flew over the AG's nest?

2008-07-09T19:34:00.018-04:00

JLP Senator Tom Tavares-Finson is a senior lawyer of many years standing. According to the Daily Observer (July 09, 2008), during last Friday's Senate sitting the goodly senator reportedly claimed the existence of "an obvious correlation between recent departures from the Attorney General's Department and the current review of the practice of employees collecting payments for work done for Government agencies."

Senator Tavares-Finson claimed that "Government lawyers were charging fees equivalent to those charged by lawyers in private practice to do Government work and were being paid with taxpayers' money." According to Tavares-Finson J$40.9 million was collected by "a few enterprising senior lawyers (at the AG's Department)." He emphasized that "this money was shared by a few lawyers and, while I have no intention of calling any names, let me say that there seems to me to be an obvious correlation between the recent departures and the beneficiaries of this largesse".

Tavares-Finson then concluded that:

* the review of the earning capacity of senior Government lawyers, as well as the attorney general's decision to review employment practices in the department were at the root of the tensions within the department.

* Efforts to blame resignations on the management style of the attorney general are groundless.

It seems that Tavares-Finson's flight over the AG's nest has rendered him impervious to logic, evidence, or just plain decency. Certainly, given the silence of the AG so far, it is fair to assume that Tavares-Finson views coincide with her own. Essentially, Tavares-Finson has accused government lawyers of running a fee-charging racket on at taxpayers' expense, and then walking away in a huff when the racket was stopped by the AG.

I am reliably informed that Tavares-Finson made no inquiries of any of the senior lawyers at the AG's Chambers about the fees supposedly collected. If indeed the fee-charging scheme is under review, why not wait until the review has been completed and documented before attacking these lawyers? Again, my information is that lawyers who did private work (for statutory bodies, for example) earned no more than J$30,000 (each) per annum, on average. If Tavares-Finson has evidence of lawyers collecting J$40M, does he not have an obligation to produce the evidence? Where would Tavares-Finson get this 'information' from other than Dorothy Lightbourne? It is curious that the AG has never publicly attributed the exodus of lawyers to internal disputes over the fee issue. by innuendo, Tavares-Finson has accused senior lawyers like Stephen Vasciannie, Patrick Foster, Nicole Lambert, et al of (a) being "beneficiaries" of "largesse" and (b) departing when the largesse was supposedly cut off. This is outrageous. I would challenge Tavares-Finson to repeat his claim outside of parliament, where his word would not be protected by absolute privilege.

How can Tavares-Finson credibly exonerate the AG given the history of her tenure at the AG's Chambers? How does Tavares-Finson explain that no AG in Jamaica's history has suffered an exodus of almost 1/3 of their Chambers in under a year? Does he seriously believe that Patrick Foster opted to leave before his contract was up, because he was being deprived of an extra $30,000 per annum? Is Tavares-Finson aware that some lawyers resigned before they had identified an alternative? Is he also aware that the AG pointedly accused some lawyers of being PNP sympathizers? Why does he ignore the fact that the AG contrived to derail Stephen Vasciannie's nomination as SG? What about the withdrawal of Nicole Foster-Pusey's acting appointment? How about the AG's interference in litigation being conducted under the supervision of the then acting Solicitor General? If the AG's management style is so stellar, why hasn't the AG's Chambers so far not succeeded in replacing the lawyers who have departed? Why, for example, is there no replacement yet for Stephen Vasciannie, as head of the international division? Why are there currently no Deputies-Solicitor General? I could go on and on.

Lawyers of the AG's Chambers, past and present, need to stand up and firmly rebuff this scandalous assault on their reputations. Nothing less will suffice.

The Attorney General's galaxy of delusion

2008-07-07T21:16:00.008-04:00

In the Attorney General's galaxy, the exodus of staff from her Chambers has nothing to with her, and furthermore is "not unusual". According to an RJR story today (July 07, 2008):

Minister of Justice, Senator Dorothy Lightbourne is maintaining that the recent exodus of employees from the Attorney General Department is not unusual.

She laid blame at the feet of the media for what she says is its continuous reference to problems between herself and her employees.

Senator Lightbourne says there is no truth to the rumours.

"All government have resignations. Persons leave law school, they go into the government service, they gain experience for two or three years and then they go," said the Minister.

"I don't see anything unusual, I don't see why it is being made unusual in this one because if you look at the DPP and all government departments people leave and move on for better conditions of service,"
"I don't interfere, there is a Solicitor General and I work through him. He consults me, he advises me and my own intervention is policy,"

Ten attorneys have resigned from the Attorney General's Department since January, the latest being Director for State proceedings, Nicole Foster Pusey.

I wonder if the learned Attorney General could point to any similar exodus that has occurred under any of her predecessors? While it is true that lawyers often move on after a few years, none of her precedessors have suffered the loss of almost a dozen members of staff in less than a year. In my world, that is unprecedented. How does the Attorney General explain the departure of Patrick Foster, for example? Most of his 26 years as a lawyer were spent in the government service, and in particular, the Attorney General's Department. Patrick left the AG's Department in the early 90s and returned in the early 2000s. Patrick was hardly someone who was simply passing through the Department to gain experience. He was a skilled, committed lawyer who came second to Stephen Vasciannie in the initial SG recruitment exercise. It is no secret that the AG bullied (or attempted to bully) Patrick and others while Patrick was acting as Solicitor General. It is also no secret that the AG accused staff members of being aligned with the PNP when she first assumed office as AG. The AG undoubtedly interfered directly with ongoing litigation, for example, the electoral litigation between Dabdoub and Vaz. Who does the AG think she is fooling?

For the AG to now claim that she doesn't interfere is frankly, a bald-faced lie. Perhaps in her galaxy, undermining the selection of a Solicitor General doesn't count as interference, but in my world it does. The AG was plain about wanting Douglas Leys as SG and nobody else. When the PSC 'failed' to play ball with the AG, they were fired and a pseudo-PSC established that oould do nothing more than rubber stamp Douglas Leys as the new SG. Indeed, the AG engineered things so well, that Douglas ended up being the only applicant.

If the AG stepped out of her galaxy of delusion for a nanosecond, I think she would see her tenure at the AG's Chambers for what it is: an unmitigated disaster.

Congratulations Principal Vasciannie!!

2008-07-07T20:44:00.006-04:00

Prof. Stephen Vasciannie has been appointed Principal of Norman Manley Law School, with effect from August 01, 2008. RJR has a news item on this, which I have included in the sidebar of the blog (news articles).

I am immensely proud of Stephen. While there is no doubt as to his qualifications for the job, this talented Jamaican has clearly not allowed the SG debacle to discourage him from finding another way to give service to his country, and indeed his region. Stephen could well have left Jamaica and taken advantage of the multitude of options that are undoubtedly available to him.

One of Stephen's challenges, I am sure, will be to interact with the host Jamaican government. Norman Manley Law School is run by the Council of Legal Education, a regional institution comprising all of the CARICOM countries. It is my fervent hope that malice of the SG debacle does not infect the government's attitude to Stephen in his new role. Another challenge will persuading law students to engage in the practice of law not only as means of making money, but in serving their societies in the cause of justice. Admittedly, I speak from the perspective of a 'cause' lawyer, who has, for the most part, shunned 'conventional' lawyering. Nonetheless, being a minister of justice is the sacred calling of all lawyers, regardless of one is a 'cause' or 'conventional' lawyer. Unfortunately, most of us seem to have forgotten that, given the raft of injustices that generate little if any outrages from the legal profession.

Congratulations Stephen!! And all the very best for a successful tenure. You can be assured of my support in the challenges of leading the Law School in morning of the 21st century.

More on departures from the AG's Department

2008-06-22T15:07:00.009-04:00

The Daily Observer of June 18, 2008 and the Sunday Herald of June 22 have both highlighted the resignation of Nicole Foster-Pusey within the context of the spate of resignations from the AG's Department since the AG took office.

In the Observer's story entitled 'Stop the Wild Allegations', the AG laughably denies that any of the resignations have anything to do with her. According to the AG:

"I don't know anything about resignations, speak to the Solicitor General. I don't know anything about tension, I wish the media would stop with these wild allegations and go to source,"; and

"Persons who resigned spoke with him (Solicitor General) and gave their reasons for leaving. I'm seeing names I don't even know. I've never met the people,"

Who does the AG think she is kidding? So how does she explain almost a dozen lawyers leaving the AG's Chambers since her arrival? I also gather that significant numbers of support personnel have also left in the wake of Hurricane Dorothy. How can AG credibly claim not to know about the resignations or the tension (to put it mildly) that has existed between her and the staff? How does she explain the resignation of Patrick Foster before his contract ended? How does she explain the timing of his resignation? Patrick resigned right after his recommendation of Nicole Foster-Pusey as acting Solicitor General was overruled. Is Hurricane Dorothy pretending that she has never assailed the members of AG Department as supporters/sympathizers of the PNP or that doing so is likely to create 'tension'??? What about her throwing some members of her staff under the bus? She was quite happy to call Stephen Vasciannie's name in the Senate when he was completely unable to defend himself regarding the letter of advice on the Trafigura matter. What about Nicole Foster-Pusey and the Dabdoub litigation? Let's talk about wild allegations for a moment. Was it not the AG herself who early in her term openly accused staff lawyers of being PNP supporters/sympathizers?

I know as a fact that the AG has been in meetings with some of those who have now resigned or left. How can she feign ignorance of not knowing these members of staff? Is she claiming, for example, that she doesn't know Nicole Lambert, who recently left a senior position in the Chambers? Apart from being untruthful, the AG seems to think it a point of pride to not know who her staff lawyers are. What a great pretence from one who publicly arrogated the right to intervene in personnel matters that are usually left to the Solicitor General.

In the same Observer report, the new Solicitor General has apparently become the AG's spinmeister. He declined to say how many persons had resigned since the AG took office, but "expressed a difficulty in understanding why she was being held liable for the spate of resignations". Is Douglas for real?? According to Douglas, "The Attorney General has nothing to do with it, why are they calling her? She is the political head!" The SG also denied that the resignations had anything to do with the behaviour of his new boss. In this regard, this is what the AG's new spinmeister had to say:

"Let me put an end to that; I took office in May and I had a meeting with the attorney general and we have agreed for a formula going forward which means the office would operate in much the same way it did when Dr Ken Rattray was Solicitor General. [This means] the attorney general would be responsible for policy and advising government and the technical legal office would advise her on the technical legal implications of whatever policy the government is pursuing.
That's the formula we had, that's the formula I intend to abide by and that's the formula which the attorney general has agreed to,"

Now let's see, Douglas. If the AG had already been observing the division of labour between her office and that of the SG, why was it necessary for you to meet and agree on a 'formula' for going forward?? Is it not implicit in your own words that the AG was not following this formula before, and hence the need to re-establish it? If the AG had been religiously following this formula throughout her reign, do you, Douglas, believe that you would've been appointed SG? Had this formula been applied, do you believe that the AG would've had the audacity to derail the appointment of Stephen Vasciannie and procure the dismissal of the PSC? If the AG had behaved like all her predecessors, do you seriously believe that a dozen people or more would've left the Chambers in under a year? Do you believe that Patrick Foster would've resigned a mere months before his contract was scheduled to end, if the AG had always behaved in accordance with this formula? Why would Patrick give up a gratuity if things were so hunky-dory in the Chambers? Who do you think was responsible for rescinding the appointment of Nicole Foster-Pusey as acting Deputy Solicitor General? Patrick? Give me a break, Douglas, neither you nor the AG have a monopoly on intelligence, so stop playing us all as fools.

Douglas Leys also claims that none of the resignees has cited difficulties with Hurricane Dorothy as a reason for leaving. Now let's examine this. If anybody had in fact mentioned this as a reason to Douglas, would he be disclosing this to the press? I think not. In any event, as Douglas well knows, people often don't cite the real reasons for leaving a job. Further, does anybody really need to cite Hurricane Dorothy as a reason when it's so obvious??? Let's get real. We are talking about an AG who, unlike her predecessors, has publicly asserted the right and the authority to interfere with personnel decisions, and indeed operational decisions that are usually within the purview of the SG.

In its front page article of Sunday Herald of June 22, 2008 entitled Government Backtracks, there is the incredible story of Nicole Foster-Pusey being compelled to recant an undertaking not to seek costs against Abe Dabdoub, following his election litigation against Daryl Vaz. I can't help but reproduce the relevant portions below:

There are more indications that political interference could have triggered last week’s sudden resignation of director of litigation at the Attorney General’s Department, Nicole Foster-Pusey.

Based on documentary evidence, Foster-Pusey was recently directed to rescind a commitment she gave to attorneys who represented Abe Dabdoub in the dual citizen trial, that the AG’s Department would not pursue legal costs against their client as ordered by Chief Justice Zeila McCalla.

The Sunday Herald obtained documents indicating that Foster-Pusey received instructions from her immediate boss, Solicitor General, Douglas Leys, to rescind the commitment.

In a letter dated May 21, 2008, Foster-Pusey had informed Gayle Nelson & Company, attorneys for Dabdoub, that the AG’s Department would not be “pursuing the award of costs outlined in the judgement”.

However, two weeks later, in a letter to the said law firm, dated June 5, Foster-Pusey said: “I am advised that at the time I made these arrangements, I had no instructions from the Solicitor General and the Attorney General.

“The Solicitor General is awaiting instructions from the Attorney General as to how the government would proceed on this issue.” That gave a clear indication that the changed position had emanated from the Attorney General or higher up the political ladder.

On June 12, Gayle Nelson & Company responded, describing Foster-Pusey’s latter correspondence as “astounding”.

“We are therefore entitled, obliged and compelled to rely on any undertaking or assurance given by you in a matter over which you have conduct, and our client intends to so rely, not only on your statements made before the Chief Justice, but also your letter of 21st May,” the law firm stated.

The letter continued: ”We take this opportunity to point out to you that any withdrawal of your position is to be considered a serious breach of ethics, contrary to the cannons of the profession, and which may very well result in a report to the Disciplinary Committee of the General Legal Council by our client.”

Foster-Pusey replied on June 16, stating that: “ I can offer no further clarification, but anticipate that as indicated in the June 5 letter, instructions will be issued by the Solicitor General in due course.”

The former director of litigation made it clear that she acted within her powers.
“I wish to make it clear that at the time I stated my position on the issue of costs, it was my understanding that in my capacity…I had the full power and authority to do so without the need of instructions from either the Solicitor General or the Attorney General.”

Over the years, Foster-Pusey added, “I have made many such directions in my capacity as the attorney with conduct of a matter, team leader in the Chambers,...since 2002 and various periods thereafter.”

So, in summary, Nicole Foster-Pusey has been thrown under the bus but both the AG and the SG, for doing nothing more than her job. As director of litigation, why on earth should she require express instructions not to pursue costs? The Dabdoub v Vaz case was not one in which the government was direct/named party. The government appeared as a friend of the court, as I understand it. This makes it even more bizarre that the AG/SG would now expose Mrs. Foster-Pusey to a disciplinary proceedings before the General Legal Council? It's unconscionable. Under such circumstances, what could Nicole Foster-Pusey do other than to resign?

The spectre of the Vasciannie/PSC imbroglio continues to haunt the AG's Department, however the AG and the SG want to pretend that all is well. The main problem is that the public, and indeed the legal profession simply doesn't care enough about what is happening in the Chambers to speak out and demand better from those who claim to serve the public interest.

Nicole Foster-Pusey resigns from A-G's Department

2008-06-17T22:18:00.005-04:00

Not surprisingly, Nicole Foster-Pusey is leaving the AG's Department. RJR reported the news today (June 17, 2008). She joins more than half a dozen lawyers who have resigned from the AG's Chambers since Dorothy Lightbourne's arrival as AG in September 2007. In any self-respecting country, this spate of resignations would be a scandal. But clearly not in Jamaica, where there has been little or no outrage at a government intent on eviscerating the AG's Chambers for no motive other than petty personality/partisan politics.

I do hope that some of the lawyers will publicly disclose their reasons for leaving. In the RJR report, Nicole Foster-Pusey declined to comment on the reasons for her departure or the departure of any of her colleagues. This might be 'politically correct' while she is still in the Chambers. However, I do think the public interest demands that the departing lawyers disclose exactly what is going on in the AG's Chambers, and not simply run away.

There had been some idle chatter some months ago about an inquiry by the Office of the PM/Cabinet Office into the operations of the AG's Department. Not surprisingly, there have been no further developments on this. To be candid, I can't see the point of having an inquiry, given the obvious cause of the turmoil at the AG's Department. I can't see how the new Solicitor General, Douglas Leys can operate with any measure of efficiency, given the exodus of so many lawyers, particularly those at the middle and senior levels.

I was speaking today with one of my Jamaican lawyer friends who now resides in Europe. He related to me how a very senior lawyer in Jamaica was bemoaning the state of affairs at the AG's Department. I reminded him that this lawyer was one of the many in Jamaica who failed to speak out when Stephen Vasciannie was strong-armed out of the SG post. I now recall that I had personally emailed this particularly senior lawyer to raise her voice in protest. I never had so much as an acknowledgement.

Despite the chaos at the AG's Department, the Jamaican Bar Association and the Advocates Association of Jamaica remain mute. I suppose this should hardly be surprising, given their track record so far. I continue to be concerned about the complete lack of engagement by the Jamaica Civil Service Asssociation. Except for a few peeps out of Wayne Jones in the initial stages of the Vasciannie imbroglio, the JCSA has been conspicuously silent. It's times like this that I wonder, why should I care, if others don't?

Sunday Herald reports on more departures from the AG's Chambers

2008-06-15T15:33:00.004-04:00

According to the Sunday Herald of June 15, 2008, four more lawyers are exiting the AG's Chambers by the end of the year. See http://www.sunheraldja.com/article/show/1050. According to the Sunday Herald:

There has been a change for the worse at the Attorney General’s Department, as four more attorneys have resigned, with three more scheduled to leave by yearend, furthering the exodus from the department.

Three of the four have already left, as the haemorrhaging continues, ostensibly on the basis that recent actions of Justice Minister and Attorney General, Senator Dorothy Lightbourne, have threatened the department’s much prized independence and insulation from political manipulation.

The three to have left are Assistant Attorney General, Julie Thompson-James and Crown Counsels Stacy-Ann Bennett and Kalaycia Clarke, while the fourth, Crown Counsel Jerome Spence, is leaving at the end of July.

I hope that the AG and the PM are proud. Enough said.

General update

2008-05-31T20:14:00.007-04:00

PSC LITIGATION

On or about April 26, the parties appeared before Ms Justice Marjorie Cole-Smith to settle key case management issues, such as hearing dates. Unbelievably, the attorneys representing the respondents (Golding & Lightbourne) indicated that they would not be available for trial until December 2008. None of the senior lawyers (RNA Henriques, Richard Small) appeared, sending instead their junior, Daniella Gentles. Despite strong objections by the applicants, the judge amazingly acceded to a December date for trial. Was it not obvious to the judge that the respondents have an interest in prolonging these proceedings for as long as possible? And conversely, did it not occur to the judge that the applicants (and indeed the public of Jamaica) have an interest in expeditious resolution of this important issue of public law?

NEW SOLICITOR GENERAL

Douglas Leys has now been installed as the new Solicitor General, as of the beginning of May 2008. It will be interesting to see how well he gets on with the Attorney General. Meanwhile, I am told that the exodus of professionals from the AG's Chambers is likely to continue.

Coke Affidavit in response to Golding & Lightbourne

2008-05-31T20:08:00.005-04:00

Sorry about the long interval since I last posted. Here's the affidavit of Daisy Coke in response to Bruce Golding and Dorothy Lightbourne.

http://www.scribd.com/doc/3188342/affidavit-further2-coke-daisy

D.S. Morgan raps Ken Chaplin

2008-04-29T13:55:00.005-04:00

I just came across a letter by D.S. Morgan that was published in the Observer yesterday (April 28, 2008) that challenges Ken Chaplin's unfounded claim that there are PNP activists in the Attorney General's Department. The letter was in response to Ken Chaplin's column of April 22, 2008 entitled Budget debate: Davies challenging, Portia emotional.

D.S. Morgan's letter was in relation to the following excerpt of Chaplin's column:

Mrs Simpson Miller spoke strongly about the level of blatant political interference that has taken place with regards to the Public Service Commission, Attorney General's Department and the Solid Waste Management Authority. This position, I believe, presupposes that those who administer these agencies were independent and non-political, but they were not.

The commission, for example, is appointed by the governor general on the recommendation of the prime minister. Four of the five members of the commission were staunch supporters of the PNP, one of whom actively campaigned for the party for the September general election. The commission appointed many of the lawyers who are PNP supporters to the Attorney General's Department. Here she was on weak grounds. Unless there is a breakaway from this contrived political circle in the public service, the country will be in serious trouble.

In a previous post, I had adverted to Chaplin's predisposition for intellectual dishonesty. Again, he baldly asserts that four of the five fired PSC members were PNP supported who appointed PNP lawyers to the AG's Chambers. Ken has unashamedly become a mouthpiece for the JLP, in the process surrendering whatever journalistic integrity might once have been attributed to him. It is curious that Ken Chaplin completely ignores the blatant political interference of the JLP government a few weeks ago in the matter of the acting appointments of Nicole Foster-Pusey and Lackston Robinson.

D.S. Morgan was much kinder to Ken Chaplin than I would've been. Neverless,I entirely agree with his sentiments which I reproduce below:

Monday, April 28, 2008

Dear Editor,

I see that columnist Ken Chaplin persists in his view that there are PNP activists in the Attorney General's Department. It would be good if he would let us know who they are, as well as his evidence for viewing them as activists.

If Mr Chaplin can show that someone is indeed an activist, maybe he can enlighten us further as to the ways in which the "activism" has affected their professional performance, since that is implicit in his criticism of the Public Service Commission for making the appointments.

DS Morgan
Kingston 8

Commentary on Sunday Gleaner editorial- The PSC and relative morality

2008-04-28T10:13:00.004-04:00

The editorial in yesterday's Sunday Gleaner rightly criticized the PM's specious use of 30 year old correspondence between the then PSC (chaired by Prof. Gladstone Mills) and the then Governor General. This correspondence was in relation to Michael Manley's request to the then PSC to resign.

The editorial is the first reference that I have seen in the Jamaican media to the PM's parliamentary reference to the PSC issue. See the editorial at:
http://www.jamaica-gleaner.com/gleaner/20080427/cleisure/cleisure1.html

The editorial captures my own sentiments. However, there was no direct reportage of the text of the letters referred to by the PM. Further, the Sunday Gleaner mysteriously opted not to include any reference to the PM's affidavit in response to the litigation initiated by the fired PSC members. The affidavit makes no reference to these letters, nor is there any indication that the PM had asked the PSC members to resign. I sent an email yesterday to Byron Buckley (the Sunday Gleaner editor)which I have reproduced below:

April 27, 2008

Dear Byron,

I have not had a response to any of my previous emails. However, I do agree with your editorial today on the PM's unprincipled defence of his handling of the PSC issue. A couple things though:

1. As a reader, I would've liked to have seen verbatim excerpts from the letters used by the PM. So far I have seen no reportage by the Gleaner (or any other newspaper) on this. The text of the PM's speech (at the JIS website) only refers to the letters, but not to the quotes themselves. I would be obliged if the Gleaner would consider reproducing the PM's references in full for the benefit of its readers.

2. Once again, I am mystified as the absence of any reference to the PM's affidavit in the editorial. The affidavit has no reference to the "Manley precedent". I would have thought that this might have merited editorial comment. It is legitimate to ask (a) why the PM has applied the Manley precedent to defend his handling of the PSC issue, when he has not done so in defence of the litigation initiated by the dismissed PSC members; (b) why the PM chose to raise this matter at all in parliament just prior to the scheduled hearing of the litigation.

While it is your prerogative to comment on public issues as you see fit, I do believe that you have concomitant obligation to do so in the context of a full disclosure of all the relevant facts/issues at hand.

Best regards,

Hilaire

Mystified by the media

2008-04-23T22:05:00.002-04:00

Today, neither of daily newspapers mentioned the PM's reference to the PSC in his budget presentation. I remain mystified by the media's seemingly schizoid treatment of this issue.

The PSC's litigation is scheduled to start next week, and therefore one might have thought that the media might have had some interest in the PM's first public mention of this matter.

I suppose I shouldn't be surprised. Except for the Sunday Herald, the media has given Amb. Rainford a free pass on his false claims regarding the acting appointments at the AG's Chambers.

PM mentions PSC issue during his budget presentation

2008-04-22T20:54:00.003-04:00

For reasons best known to the Prime Minister, he elected to mention the controversial replacement of the PSC. I understand that he quoted from some 1976 correspondence by previous Public Service Commissioners. I gather he was attempting to establish that previous Public Service Commissioners had resigned at the request of former PM Michael Manley. Here is the relevant extract from Golding's presentation:

Public Service Commission

The Leader of the Opposition has made some trenchant statements about the replacement of the PSC. That matter is the subject of a challenge in the Supreme Court and, therefore, I will refrain from commenting on the specific charges she has made.
But it may be of interest for me to quote from two letters written to a former Governor-General by members of previous Public Service Commissions.

The actual quotes from the letters are not included in the written presentation, but I am hoping that they are available in the daily newspapers tomorrow.

The Prime Minister appears to be echoing some of his 'surrogates' like Ken Jones and Ken Chaplin, who have previously cited the supposed resignation of previous Public Service Commissioners (at the request of a PM) as if this somehow is relevant to, or supportive of PM Golding's dismissal of the Daisy Coke PSC. Golding never asked the PSC to resign, and indeed initially expressed confidence in the PSC. Why is it that PM chose to mention this issue in the context of a budget debate when the matter is before the courts, as he himself acknowledged?

More anon.

Review of the AG's Chambers: The Gleaner says good move, but is it?

2008-04-08T15:40:00.007-04:00

Today, the Gleaner had a short editorial applauding a proposed review of the operations of the Attorney General's Chambers (http://www.jamaica-gleaner.com/gleaner/20080408/cleisure/cleisure2.html)

The editorial is set out below:

Dorothy Lightbourne has been the revelation of Bruce Golding's Cabinet - but not in a positive way. As an opposition member of the Senate, we used to consider her constructive and and hoped she would bring a thoughtful expansiveness to a ministerial portfolio. By most reports, as attorney general, Ms Lightbourne has been narrowly partisan, looking into ever crevice for political opponents and evidence of disloyalty.

Her attitude is reported to have created deep tension and concern at the AG's chambers, from which a number of lawyers have sought to escape, to a point, as is now reported, Mr Golding has asked for a review of the operations.

If indeed such an investigation is under way, we believe it is incumbent on Mr Golding to inform the public of its scope and full terms of reference. Any such review should also include an assessment of what role Mr Golding's move to prevent Professor Stephen Vasciannie being appointed solicitor general played in creating creating employee disquiet at the AG's chambers.

While I understand and indeed support the sentiment of the editorial, I do think the Gleaner has missed a couple of fundamental points. Firstly, having identified Dorothy Lightbourne as the main culprit behind the turmoil at the AG's Chambers, what would be the point of a review? Secondly, if the review is commissioned by the PM, what would reason is there for assuming that the review would be anything but a whitewash of the AG's conduct? Almost two weeks ago, I alerted a senior editor at the Gleaner about the affidavits of the PM and AG. The Gleaner has failed to either report on the affidavits or use them to shape their editorial position. I find it curious to say the least.

I sent some feedback to Colin Steer, Associate Editor of the Gleaner, which I set out below (edited):

Dear Colin,

I applaud the sentiment behind your editorial today entitled "Good move at AG's Office". I think you have quite correctly characterized Dorothy Lightbourne as partisan and indeed disruptive. Having said that, I am not certain why or how you inferred that the reported review commissioned by the PM has anything to do with the AG's behaviour, or more particularly, the consequences of her behaviour. It would seem to me that the AG has at all times had the imprimatur of the PM. I would refer you to the affidavits of both the PM and the AG in response to the litigation initiated by Daisy Coke et al, as supporting this proposition. The turmoil at the AG's Department is coincides with Dorothy Lightbourne's tenure. It seems to me that a review is hardly necessary to diagnose, much less eliminate the cause of such turmoil.

While I agree with you that the PM should inform the public on the scope and terms of reference of the review, I had hardly see that the PM would include an assessment of his own role in the Vasciannie fiasco. Again, I refer you to the PM's affidavit which clearly justifies his own role in derailing the selection of Prof. Vasciannie and firing the PSC when it failed to accede to his wishes. It seems to me that a review emanating from the PM's office is hardly likely to do more than whitewash the turmoil currently pervading the AG's Chambers, and the roles of the PM and AG in creating it. I am somewhat surprised that the Gleaner has so far opted not to publicize the affidavits of the PM and AG and/or utilize the information therein to shape your editorial position of today. I imagine that you may have your reasons for taking this approach, but frankly, I do not think it serves the public interest.

Best regards,

Hilaire

Sunday Herald redeems itself (sort of)

2008-04-06T19:52:00.008-04:00

In its editorial today (April 06, 2008), the Sunday Herald partially redeemed itself by challenging Ambassador Rainford's earlier denial that the PSC approved or rescinded the acting appointments of Nicole Foster-Pusey and Lackston Robinson. However, the Herald's editorial failed to take any responsibility for having previously accepted Amb. Rainford's version of events without question. The Sunday Herald actually went beyond a mere disclaimer, and apologized to Amb. Rainford for carrying the story about the cancellation of the acting appointments.

The editorial states that:

There is a widely held view that the current PSC, described by some as Prime Minister Golding’s Select Committee, has lost its independence. And recent developments in the commission and how they were handled have not done much to dispel that view.

The new PSC was conceived and delivered as an appendage of the political directorate. Congenitally, independence was never part of its institutional DNA. To suggest that the new PSC has "lost its independence", presupposes that it was independent ab initio, which is palpably not the case. The lack of independence is implicitly acknowledged in an earlier passage of the editorial which recounts the circumstances in which the new PSC was born.

In its lead story, Commission blunders, the Sunday Herald reports not only on the controversial cancellation of the acting appointments, but on the failure of the new PSC to short-list Hugh Wildman as a candidate for Director of Public Prosecutions. Hugh Wildman has publicly complained that he was not interviewed for the job. In this respect, the Sunday Herald sought answers from Amb. Rainford to the following questions:

• Were all the applicants interviewed? If not, what criteria were used in selecting the short list?

• Did all the applicants satisfy all the requirements in the advertisement? If not, why was there any exception?

• Did the PSC consider applications from Messrs Terrence Williams and Hugh Wildman? If not, was the PSC aware that the above-named submitted pplications? If yes, what factors informed the decision not to invite them for interviews?

• Were any persons with legal training (former members of the judiciary/attorneys) involved in the interviews? If no, what were the considerations for their exclusion?

• Could the PSC specify the nature of the test given to the interviewees prior to the interviews? Did the test involve legal questions? Did the test involve personnel issues or questions related to management?

• What, if any, were the legal issues pertaining to the office of DPP which were involved in the test?

However, according to the Sunday Herald, "Ambassador Rainford declined comment, saying under the Official Secrets Act, he was prohibited to comment on the matter."

This is beyond ridiculous, that in the 21st century, a public authority is invoking an antiquated Official Secrets Act to avoid accountability for its decisions. Has it not occurred to the new PSC that they would be obliged to disclose the reasons for excluding Hugh Wildman if the latter opted to challenge the PSC in a judicial review court? While I hold no brief for Hugh (he was my classmate in Law School), I cannot see any reasonable justification for not short-listing him. Unlike the other candidates, Hugh has had experience as a Director of Public Prosecutions in Grenada. Similarly, I am mystified by the exclusion of Terrence Williams from the short list of interviewees. Terrence is currently the DPP of the British Virgin Islands. The new PSC needs to explain how it could short-list relatively lawyers like Lisa Palmer and Marlene Malahoo-Forte, who have experience leading a prosecution department, but exclude Hugh and Terrence, who do. To be frank, neither Hugh nor Terrence would be my choice for DPP. However, they unquestionably had a legitimate expectation, if not a right, to be fairly considered for the job.

The news article also touched on the cancellation of the acting appointment of Nicole Foster-Pusey as acting Deputy Solicitor General. According to the Sunday Herald:

Ambassador Rainford said the appointment and later rescinding of Nicole Foster-Pusey as acting Solicitor General in February, without the knowledge of the commission was “puzzling and inexplicable”.

Continuing, Rainford said he found it “highly unusual” for the chief personnel officer, Jacqueline Hickson, to act on such a sensitive issue without consulting the commission.

According to the article, "The Sunday Herald tried unsuccessfully to ascertain if it was customary for appointments of this nature to be made without consultation with the chairman, or if the chief personnel officer was empowered to approve the appointments."

Ambassador Rainford is either woefully ignorant of standard civil service practice or is being blatantly disingenuous. There is nothing unusual about the Chief Personnel Officer acting in the name of the PSC with respect to acting appointments, as I have stated in previous posts. Now, I presume that the CPO will simply refer every minute decision to the PSC for its micro-management purview. I have no doubt that the CPO acted in good faith, based on delegated authority. There is hardly a doubt in my mind that PSC 'ketch it fraid' when the AG threw a tantrum over the acting appointments, and that it was the AG's objection to the appointments that determined the final outcome.

I hope that the Sunday Herald continues to pursue the story without allowing its investigation to be framed by any considerations other than the public interest. It would be great if the rest of the Jamaican media would follow suit, but I won't hold my breath, since they seem to prefer an orthodoxy of inertia and indifference.

The other Jamaican newspapers follow suit

2008-03-31T17:57:00.005-04:00

I gather that the Daily Gleaner and the Sunday Herald have followed the Jamaica Observer in distancing itself from James W. Smith's letter regarding the cancellation of the acting appointments of Nicole Pusey-Foster and Lackston Robinson. I cannot believe that every major paper in Jamaica opted to accept the word of Amb. Donald Rainford without question or investigation. The abject cowardice of the media apparently knows no bounds.

In fairness to the Observer, I have heard from one of the editors who has taken the point that the Observer should not have issued a disclaimer in light of the clear evidence available that demonstrates approval for the acting appointments was given and then withdrawn.

Some have suggested that the Amb. Rainford should be taken as saying that the acting appointments were made by the Chief Personnel Officer without the express authorization of the new PSC. However, in the disclaimer by the Observer (which I assume was replicated by the other newspapers), it is clear that Amb. Rainford's position is that no recommendations for the acting appointments were ever made, much less approved or disapproved. This simply does not square with the evidence. When I appeared on Nationwide News Network last week, Emily and Naomi were trying to push the idea of the CPO going on a frolic of her own, as if to imply that she requires express authorization for every personnel decision she makes in the name of the PSC.

Given the posturing of the Attorney General, and her clear intent to micro-manage personnel decisions in the AG's Chambers, I am all the more astonished by the media's handling of this issue. It's a damn disgrace.

The Observer drops the ball on the Foster-Pusey/Robinson acting appointments

2008-03-29T21:07:00.014-04:00

In today's Observer, March 29, 2008, there is a disclaimer that reads as follows:

THE Observer wishes to advise our readers that in a letter to the editor published in our March 26, 2008 edition the author, James W Smith, stated that:

“The most recent of these developments has been the rescinding of the promotion of a senior staff member by the Public Service Commission only days after the same PSC had approved the recommendation. The public has also learnt of the resignation of the acting solicitor general with over a year on his contract, and the non-renewal of the contract of the deputy solicitor-general, Professor Stephen Vasciannie.

It is of grave concern that the newly appointed PSC could approve a recommendation from the acting solicitor-general for the promotion of a senior staff member and then days later rescind the same appointment.

The PSC owes an explanation as to the “extenuating” circumstances that arose in those days that caused such a reversal. I hope that the new PSC, comprising individuals with the highest levels of integrity, did not bow to political pressure on this issue. Could this be the reason for the acting solicitor-general’s resignation? And what of the future of that staff member who must be highly embarrassed by the course of these events?”

The chairman of the PSC, Donald Rainford, categorically denies this accusation and accordingly advises that no such recommendation was sent to the PSC, no such appointment was made by the PSC and consequently no such appointment was rescinded by the PSC.

Except for the views expressed in the Editorial column, the articles published in our editorial section do not necessarily represent the views of the Jamaica Observer.

The disclaimer can be found at: http://activepaper.olivesoftware.com/Repository/ml.asp?Ref=Sk1PLzIwMDgvMDMvMjkjQXIwMDQwMw==&Mode=HTML&Locale=english-skin-custom

In issuing this disclaimer, the Observer appears to have simply took the PSC Chairman at his word, without any journalistic inquiry of the relevant players, namely, the acting Solicitor General and the Chief Personnel Officer. Had the Observer probed more deeply, or at all, it would have discovered two letters written by the CPO. I have posted these letters under the heading "Useful links". You can otherwise access them at:

http://www.scribd.com/doc/2402712/-letter-of-Chief-Personnel-Officer-approving-acting-appointments-270208

http://www.scribd.com/doc/2402711/-letter-of-Chief-Personnel-Officer-cancelling-appointments-030308

These letters plainly evidence the approval of the acting appointments of Nicole Foster-Pusey and Lackston Robinson (on February 27) and the later cancellation of the appointments less than a week later on March 3, 2008.

I am quite ashamed of the Observer for so abjectly accepting the PSC Chairman's denial without any further inquiry. It is all the more egregious, given that the correspondence between the acting Solicitor General and the CPO was openly discussed by Emily Crooks and Naomi Francis on their programme on NNN earlier this week. There really is no excuse for this shoddy and quite spineless journalism.

James W. Smith, the letter writer, has protested to the Observer, and I have supported him in this regard. I reproduce the relevant emails for your information:

James Smith's email of March 29, 2008

----- Original Message ----
From: James W. Smith
To: Vernon Davidson ; Desmond Allen ; Editorial Observer
Sent: Saturday, March 29, 2008 2:01:16 PM
Subject: Ja Observer: Correction & Disclaimer - PSC & Atty General's Dept

Dear Editor
I note with interest on Page 4 of the Daily Observer of Saturday, March 29, 2008 that you issued a disclaimer and apology with respect to a letter I sent you on issues at the Attorney General's Dept.
The disclaimer raises more questions than answers and I urge you to continue to pursue the matter.
Facts
1) The Chief Personnel Officer or Scty to the Public Services Commission (someone who has acted in this position for many years) wrote a letter under her signature to the acting Solicitor General Patrick Foster approving the recommendation for the appointment of Nicole Foster-Pusey.
Subsequent, the same person wrote another letter in which she stated that "she was directed" to inform that the recommendation was rescinded.

This letters can be obtained under the Access to Information Act.

Questions
1) On whose authority/instructions would the Scty to the PSC approve such a recommendation? Are we to understand that she acted on her own, without consultation with the chairman or any of the members of the PSC?
Is it standard procedure for the Scty to the PSC to do this without consultation as the chairman of the PSC is suggesting?
2) Is it merely coincidental that the same day the initial letter approving the recommendation of Mrs. Foster-Pusey was sent to the acting SG, that the Attorney General, Dorothy Lightbourne would call Patrick Foster - the acting SG and "cuss" him off for making that recommendation without her consultation or input?
Did the chairman of the PSC not know of this?
3) If as we are being made to believe, that the Scty to the PSC acted on her own, why then would she issue a letter of revocation of an appointment indicating that she was "directed to". Directed to by whom? Since the AG can't or better still shouldn't direct the Scty of the PSC, then who did.
4) Is it of any interest to the public that the acting SG Patrick Foster has resigned? Does anyone care why he has resigned?

I am afraid that a game is being played out here, where the Scty of the PSC is being made out to have acted on her own on this issue and will be used as a scapegoat to cover up the most blatant political interference that this country has ever seen by an Attorney General.
If anybody listened to Nationwide Radio over the last week on this issue, the "wicket is being prepared and rolled" for such an outcome.

These matters are of public interest and must be pursued.
I don't expect this letter to be published but I expect the Observer as an independent newspaper to pursue the truth on this issue.
Of note and interest, my letter was sent to all three newspapers (Gleaner, Observer and Herald) published by all three and the Observer is the only one that has issued a retraction and disclaimer.

Regards,
James

My email of support of March 29, 2008 (addressed to Vernon Davidson and Desmond Allen of the Observer)
Desmond & Vernon,

I must support James Smith on this issue. I take strong exception to your correction/disclaimer. Undoubtedly, there are serious questions to be asked about this issue. Given this, I am astonished that the Observer chose instead to issue a disclaimer, based solely on a denial by Amb. Rainford. Perhaps you are not aware of this, but Nationwide News Network 'published' the correspondence between the Chief Personnel Officer and the acting Solicitor General on this issue. For reference, here's my blog commentary on the issue: http://vasciannie-psc.blogspot.com/2008/03/nnn-this-morning-programme-and-ags.html. Essentially, if one is to follow your disclaimer, there was never any recommendation by the acting SG, and therefore nothing to be approved or rescinded. This cannot fly based on the facts that are already known and in the public. Any responsible newspaper has an obligation to do more than simply accept uncritically the assertions of the PSC chair.

If we cannot rely on the media to probe the questions raised by James Smith, we are in more serious trouble as a nation than I thought.

Best,

Hilaire

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

2008-03-28T19:39:00.009-04:00

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

Affidavits of Bruce Golding and Dorothy Lightbourne

2008-03-25T23:19:00.008-04:00

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.

More departures from the AG's Chambers?

2008-03-21T19:19:00.007-04:00

Stephen Vasciannie's last day in the AG's Chambers was March 18, 2008. Patrick Foster, as has already been announced, will leave at the end of June 2008. I have now been reliably informed that Nicole Lambert, another senior member of the Chambers is expected to leave in April 2008. At least two or three more resignations are rumoured to be forthcoming.

The AG's partisan campaign of 'shock and awe' is clearly resulting in a 'surge' of resignations and departures, to the detriment of the people of Jamaica. It is no secret that the AG considered that the Chambers had been 'infected' by so-called "PNP" lawyers, and thus, the shock and awe campaign to purge them. Dorothy Lightbourne has diplayed a virulent partisanship that I never suspected was in her. I have known her for many years, and never saw this side to her. Dorothy is fundamentally a weak and insecure lawyer who has no respect for the institutional history of the AG's Chambers, nor for the professionals who staff it. She seems particularly threatened by those who are palpably more competent than she is. So she resorts to tearing them down. She has contrived to have a Public Service Commission that will rubber stamp her whims. Loyalty is her bottom line, not competence. What a tragedy for the the Chambers. What a tragedy for Jamaica.

Douglas Leys to be new Solicitor General

2008-03-14T17:58:00.005-04:00

RJR reports today that Douglas Leys is to be appointed the new Solicitor General. No surprises there, as he was the only applicant. The Attorney General has gotten her wish, at the cost of mutilating the rule of law. The real scandal, however, has been the complicity of the Jamaican public in failing to stand up against this flagrant abuse of power.

There is some irony in Douglas's appointment as Solicitor General. The Solicitor General is supposed to be an emblem of the rule of law, yet Douglas has allowed himself to be appointed in circumstances that violate the very rule of law itself. I can't see Douglas having a successful tenure as Solicitor General unless he is prepared to completely surrender his professional independence and integrity. We will see.

More turbulence in the AG's Chambers

2008-03-14T12:14:00.008-04:00

The Attorney General has reportedly blocked the appointment of Nicole Foster-Pusey as acting Deputy Solicitor General. Mrs. Foster-Pusey, the Director of Litigation at the AG's Chambers was recommended for the appointment by the acting Solicitor General, Patrick Foster, QC. According to a news report, Mr. Foster's recommendation was initially approved by the new PSC. The appointment should've have taken effect on March 10, 2008. The PSC subsequently withdrew its approval, apparently after the Attorney General objected to the appointment.

Based on previous news reports, Nicole Foster-Pusey has not enjoyed a cordial relationship with the Attorney General. The AG has reportedly attempted on more than one occasion to interfere directly with the discharge of Mrs. Foster-Pusey's professional functions. One reported example is the AG's insistence on dictating the submissions to be made by Mrs. Foster-Pusey in an electoral case. Apparently, Mrs. Foster-Pusey is not seen as 'loyal' to the Attorney General. I would not be surprised if Patrick Foster's resignation was partly influenced by the AG's obstruction of Mrs. Foster-Pusey's appointment.

Not surprisingly, the new PSC appears to be deferential to the wishes of the AG. After all, I am sure Amb. Rainford, et al hardly wish to suffer the same fate as Daisy Coke, et al, who dared to stand up for principle.

The integrity and reputation of the AG's Chambers continues to be assailed by the current Attorney General. It still blows my mind how blatantly partisan the AG has conducted herself, largely unchallenged by public opinion. I expect that any time soon, Douglas Leys will be appointed the new Solicitor General. How he will contend with a partisan AG remains to be seen. With respect to Douglas, I am still mystified that he would insert himself in that mess. Perhaps he has correctly gauged the temperature of political and public opinion, and calculates that only a minority of persons will perceive him as a political hack. So it is.

Stephen Vasciannie & Patrick Foster to leave AG's Department

2008-03-12T22:02:00.004-04:00

According to media reports, Deputy Solicitors General Patrick Foster and Stephen Vasciannie will be leaving the Atorney General's Chambers. Patrick Foster's resignation was first announced yesterday. His resignation takes effect on June 26, 2008. Stephen Vasciannie leaves at the end of March 2008 when his contract comes to an end. Not surprisingly, the government did not offer to renew Prof. Vasciannie's contract.

Patrick Foster, has been acting as Solicitor General since last year when the government objected to the PSC's recommendation of Stephen Vasciannie as the new Solicitor General. Patrick, together with Douglas Leys were the other two candidates considered for the position at that time. According to an RJR news report today, Patrick is leaving for 'personal reasons'. I suspect that Patrick has just had enough of the political turbulence wrought by the current Attorney General. I can't say I blame him.

The intent of the government, it appears, is to either purge or destroy the AG's Department, all in the name of politics. Jamaica can ill afford to lose the talent and experience of Stephen and Patrick, worse yet at the same time. I fully expect the Department to haemorrhage more talent before long. With the current PSC being beholden to the government, one can expect that the AG will soon have her wish of having loyalists instead of lawyers occupying her Chambers. As has been reported elsewhere, the Dorothy Lightbourne, in her capacity as Minister of Justice has appointed Sherene Golding, the PM's daughter to be her adviser on legislative reform, among other things. Ms Golding has no legal qualifications or experience, save for an undergraduate degree in law from Georgetown University. This is beyond farcical. Jettison Foster & Vasciannie, but elevate the Prime Minister's daughter.

There is a clear agenda on the part of the government to politicize the civil service. I have just received information that another ministry is being positioned to incorporate political loyalists in its civil service ranks. More anon on this.

Affidavit of Portia Simpson Miller

2008-03-09T20:38:00.004-04:00

Mrs. Simpson Miller's litigation is perhaps academic now, but here's the affidavit that she filed.

Congratulations to Paula Llewellyn

2008-03-05T22:05:00.003-05:00

Heartiest congratulations to Paula Llewellyn on being named Jamaica's first female Director of Public Prosecutions. http://www.jamaicaobserver.com/news/html/20080304T200000-0500_133195_OBS_FIRST_WOMAN_DPP_.asp

Undoubtedly, Paula has earned this appointment with her track record of professional excellence as a prosecutor. According to recent news reports, Paula was one of four women interviewed by the new PSC. The others were Marlene Mallahoo-Forte, Vinette Allen-Graham, and Lisa Palmer. Earlier news reports had suggested that Hugh Wildman and Terrence Williams had also been shortlisted for interviews, but apparently this was not the case.

While I hardly want to rain on Paula's parade, my concern is that if the pending litigation by Daisy Coke, et al is successful, this could have adverse implications for decisions of the new PSC, including its recommendation of Paula as the new DPP.

We shall see.

Court of Appeal decides interlocutory appeal in favour of PM

2008-03-05T21:11:00.006-05:00

The Court of Appeal has ruled that Mr. Justice Donald McIntosh did not have the authority to grant the Leader of the Opposition an extension to file a fixed dated claim after the time for filing this document had expired.

The appeal was brought by the Prime Minister and the Attorney General.

Barbara Gayle, in today's Gleaner recounts that:

On December 13 last year, Justice Kay Beckford granted [Opposition Leader Portia Simpson Miller) leave to apply for Judicial Review. Simpson Miller's lawyers had 14 days under the Civil Procedure Rules 2002 in which to file the fixed date claim form for Judicial Review after leave was granted.

The claim form was not filed in the Supreme Court Registry within the specified time and, when the matter came before Justice Donald McIntosh on January 10 for a first hearing, Simpson Miller's lawyers applied for an extension.

Justice McIntosh granted a 14-day extension for Simpson Miller to apply for Judicial Review.

Golding's lawyers had opposed the application for an extension and the judge granted Golding leave to appeal.

[R.N.A.] Henriques [QC, representing the PM and AG] argued before the Court of Appeal - comprising its president Justice Seymour Panton, Justice Algernon Smith and Justice Hazel Harris - that once Simpson Miller did not file the claim form within 14 days under the Civil Procedure Rules 2002, the leave expired. He said the leave was conditional upon the filing of the claim form by December 27 last year.

He said when the matter came before Justice McIntosh, there was nothing to extend because the leave had expired and no action had been commenced by the filing of a fixed date claim form within the time stipulated by the Civil Procedure Rules 2002.

The Court of Appeal agreed with the legal arguments and allowed the appeal.

The Court of Appeal has not yet delivered its written judgment. Linton Walters, one of the lawyers representing Mrs. Simpson Miller has reportedly mentioned the possibility of an appeal to the Judicial Committee of the Privy Council, but this is subject to consultations with the Leader of the Opposition.

On the face of it, it appears that the Court of Appeal was correct in allowing the appeal, based on the the failure of the Mrs. Simpson Miller to file the fixed date claim within the prescribed deadline. I am more than a little surprised that Mrs. Simpson Miller's lawyers allowed themselves to get into this position, given the pivotal importance of the litigation.

Bert Samuels told me that it is still open to Leader of the Opposition to seek a declaration from the Supreme Court that the PM's actions were unlawful. The original litigation sought to quash the decision of the PM to dismiss the PSC by way of certiorari. Certiorari is one of the remedies of judicial review, and is used by the Supreme Court to quash a decision of a public official or authority.

The litigation of the former PSC members is still pending. Hopefully there are no similar procedural issues which prevent the examination and resolution of the substance of the dismissal of the PSC.

Updated chronology -January 13, 2008 to February 25, 2008

2008-02-27T19:37:00.002-05:00

My good friend has again usefully composed an updated chronology,this time from January 13 to February 25, 2008. I very much appreciate the efforts of my friend.

Jan. 13, 2008 The Sunday Gleaner publishes an article by Lambert Brown headed “Justice, Truth and the PSC”, in which Brown points out that neither law nor convention requires Public Service Commission members to resign when the Government changes.

Jan. 13, 2008 The Sunday Gleaner publishes an article by Ian Boyne headed “Vasciannie and our Political Culture”; Boyne argues that “(o)ne of the most reprehensible and repulsive arguments being used against the appointment of Stephen Vasciannie as Solicitor General is the fact that six years ago he harshly criticized Bruce Golding, likening his return to the Jamaica Labour Party (JLP) to a dead cat being tossed on a deck.”

Jan. 15, 2008 The Daily Observer publishes an article by Ken Chaplin under the heading “What’s Going On in the AG’s Dept?” in which he criticizes the Executive Committee of the Attorney General’s Chambers and discusses the question of payments to lawyers in the Chambers for private work.

Jan. 17, 2008 The Gleaner publishes an editorial under the heading “Arrogance, Power and Matters of Justice” concerning mainly the case of Michael Bennett, a caretaker wrongfully dismissed by the St. Elizabeth Parish Council. The editorial comments on the importance of natural justice and states: “…(T)he Michael Bennett cases will, hopefully, inspire a new metaphor for the administration, given its clumsy objection to the installation of Professor Stephen Vasciannie as the Solicitor General and the subsequent firing of the Public Service Commission.”

Jan. 19, 2008 The Daily Observer publishes a letter from O. Hilaire Sobers entitled “The Attorney General, the Constitution and the Rule of Law” which challenges Attorney General Lightbourne’s perspectives on her role in the appointment of personnel in the Attorney General’s Chambers.

Jan. 19, 2008 The Daily Observer publishes a letter from D.S. Morgan entitled “Strange ‘Official’” which points out various discrepancies in Ken Chaplin’s article about the Attorney General’s Chambers published in the Daily Observer on January 15.

Jan. 20, 2008 The Gleaner publishes, as its Letter of the Day, a letter from L.L. Ventour headed “A Daniel Come to Judgement” in which he argues that any objection to Professor Vasciannie’s appointment is not because of Vasciannie’s “dead cat” comments about Bruce Golding’s return to the JLP in 2002.

Jan. 27, 2008 The Public Service Commission re-advertises the post of Solicitor General in the Sunday Gleaner.

Jan. 29, 2008 The Gleaner publishes a front page story headed “PSC Misbehaved: Former Commission Member Sangster Supports Firing Body”. The Gleaner also published front page comments by Cabinet Secretary Carlton Davis on the PSC issue under the title “…Whole Case Handled Poorly, says Davis”. On page 3, the Gleaner reports that “Sacked PSC Members Take Golding to Court”. This report indicates that Daisy Coke, Mike Fennell, Edwin Jones and Pauline Findlay have sought leave to go to the Judicial Review Court to quash the recommendation of the Prime Minister that they be fired for misbehaviour.

Jan. 22, 2008 The Daily Observer publishes a letter from O. Hilaire Sobers headed “Withdraw Partisanship Accusation, Ken”, challenging Ken Chaplin’s suggestion that lawyers in the Attorney General’s Chambers are biased in favour of the People’s National Party.

Jan. 29, 2008 The Daily Observer reports on page 3 that “Four Ex-PSC Members Sue Prime Minister”

Jan. 30, 2008 The Gleaner publishes, as its Letter of the Day, a letter entitled “The primacy of ministers in gov’t administration” by Ken Jones.

Jan. 31, 2008 The Gleaner publishes a letter by O. Hilaire Sobers under the heading “Sangster and the PSC” noting various problems inherent in the approach taken by Dr. Alfred Sangster with respect to the Public Service Commission.

Feb. 2, 2008 The Daily Observer publishes a letter by O. Hilaire Sobers under the heading “Why Now, Dr. Sangster?” criticizing the approach taken by Dr. Sangster. Among other things, Mr. Sobers asks: “(I)f Dr. Sangster felt so strongly about the “misbehaviour” of his colleagues, why didn’t he say so before? Why now, when his erstwhile colleagues have launched a legal challenge to their dismissals. Why didn’t Dr. Sangster resign instead of waiting to be fired?”

Feb. 3, 2008 The Sunday Observer publishes a front page story under the headline: “’PM was Angry’: Golding Accused PSC of Wanting to Shove Vasciannie Down Govt’s Throat, says Coke”. The report draws from the affidavit filed by Daisy Coke, Chairperson of the PSC, on the issue of Professor Vasciannie’s selection for the post of Solicitor General.

Feb. 3, 2008 The Sunday Gleaner publishes, as Letter of the Day, a letter from former Attorney General A.J. Nicholson entitled “Sangster Lets the Puss Out of the Bag” which discusses the reasons advanced by the Prime Minister for dismissing the PSC and points out that Alfred Sangster had admitted that the so-called “dead cat” argument influenced his thinking on whether Professor Vasciannie should be appointed as Solicitor General. Senator Nicholson suggests that this adds to the tangled web that the Government has weaved in the PSC matter.

Feb. 3, 2008 The Sunday Observer publishes on page 3 a story entitled “Gov’t Axes Vasciannie from Air Policy Committee”, noting that Professor Vasciannie has been dismissed from the Air Policy Committee although the letter of dismissal praises the professor for his “tremendous work” which “will be a pillar on which the new committee will be able to build”.

Feb. 5, 2008 The Daily Observer publishes an editorial entitled “Why this Animosity towards Professor Vasciannie?” The editorial suggests there is bias against Vasciannie, notes that the Government has handled the matter poorly, points out that Vasciannie is the candidate best qualified for the post of Solicitor General and links the PSC matter to the dismissal of Vasciannie as Chairman of the Air Policy Committee.

Feb. 5, 2008 The Daily Observer publishes a letter by Alison Irvine under the heading “Is It Personal, Mr. Golding?”, in which Ms. Irvine links the dismissal of Vasciannie from the Air Policy Committee (and his replacement by Noel Hylton) to the PSC matter. Ms. Irvine also points out that in December 2005 the Police Service Commission had sought to retire Inspector Donovan “Hux” O’Connor, but that this decision was found by the High Court to have no legal basis. The Chairman of the Police Service Commission in December 2005 was Noel Hylton.

Feb. 11, 2008 The Gleaner publishes a story under the heading “Stand Up To Them! Permanent Secretaries Urged to be More Forthright Despite Existing Threat of Political Victimisation”.

Feb. 11, 2008 The Daily Observer publishes a letter from Rev. Dr. Mervin Stoddart under the heading “Very Principled Stance, Dr. Sangster”.

Feb. 11, 2008 RJR reports that the closing date for applications for the readvertised post of Solicitor General is February 11, 2008, and that as of Friday, February 8, only Douglas Leys had applied for the position.

Feb. 14, 2008 The Daily Observer publishes a story entitled “Why Hylton, and not Vasciannie, is the Right Man”, concerning the appointment of Noel Hylton to the position of Chairman of the Air Policy Committee of the Jamaican Government.

Feb. 25, 2008 RJR reports that Douglas Leys is the sole candidate for the re-advertised post of Solicitor General; RJR further reports that neither Professor Vasciannie nor Patrick Foster had re-applied for the position.

Feb. 25, 2008 The Gleaner reports, under the heading “DPP, Solicitor General Interviews This Week”, that only one Douglas Leys has applied for the post of Solicitor General.

"New" PSC to interview candidates for the positions of Solicitor General and DPP this week

2008-02-25T19:55:00.004-05:00

According to a news story in today's Gleaner (Feb 25, 2008), the new PSC (I prefer to call it the "pseudo-PSC") will, during the course of this week, be interviewing candidates for the posts of Solicitor General and Director of Public Prosecutions.

Douglas Leys is reported as the only applicant for the job of Solicitor General. However, during Nationwide News Network's "This Morning" programme today, Emily Crooks and Naomi Francis indicated that another candidate has belatedly submitted an application. They did not reveal the identity of this applicant, but promised to do so shortly.

The short list of applicants for the position of DPP are:

Paula Llewellyn (currently Senior Deputy DPP)

Terrence Williams (currently DPP of the British Virgin Islands, and formerly a prosecutor with the Jamaican Department of Public Prosecutions); and

Hugh Wildman (currently an adviser to the government of Grenada, and a former DPP of Grenada). Like Terrence Williams, Hugh Wildman was also previously a prosecutor in the Jamaican Department of Public Prosecutions.

As is well known by now, the Prime Minister's decision to dismiss the Coke-PSC has been judicially challenged by the Leader of the Opposition and four of the dismissed Public Service Commissioners. If the courts find that the dismissal of the Coke-led PSC was unlawful, then this must ultimately affect the legality not only of the new PSC, but any appointments made pursuant to its recommendations. I wonder whether the applicants for these positions have contemplated this possibility.

I had heard some time ago that the government was actively courting Hugh Wildman for the position of DPP. Hugh and I are batchmates, having both graduated from the Norman Manley Law School in 1988. Hugh is fierce prosecutor, but has proven to be extremely controversial/contentious. He is the only person I know who has managed to provoke lawyers (in Grenada) to take to the streets when the government of Grenada wanted to appoint him Attorney General. While Hugh and I get along quite well, the truth is that he has had a history of alienating fellow professionals both in Jamaica and Grenada. I don't question his competence as a prosecutor. However, I don't see Hugh as having the interpersonal and other skills necessary to successfully lead the Department of Public Prosecutions.

Terrence is a solid prosecutor too, but for my money, Paula Llewellyn is the best qualified of the lot. The Department of Public Prosecutions needs a leader who is not only a technically proficient prosecutor, but who has the interpersonal skills to rebuild staff morale, something which appears to have been damaged during Kent Pantry's tenure as DPP. In November 2002, the Public Service Commission appointed a panel led by David Muirhead, QC to probe the administrative functions of the Office of the Director of Public Prosecutions, following press reports of organizational disharmony. One source of this disharmony appears to have been lack of a clear system of appraisal or opportunities for promotion. Paula Llewellyn herself acted as Senior Deputy Director of Public Prosecutions for years before she was ultimately confirmed. In 2003, prosecutors took industrial action to protest the lack of implementation of recommendations made by the Muirhead committee with respect to improved systems of appraisal and promotion. While the problems of the Department of Public Prosecutions cannot all be attributed to the outgoing DPP, his successor will have the challenge of infusing the Department with an esprit de corps that has been missing for some time. I don't see any of the applicants but Paula Llewellyn having the capacity for this.

Further on Prof. Vasciannie's dismissal as chairman of the Air Policy Committee

2008-02-15T23:49:00.004-05:00

According to yesterday's Observer (Feb.14, 2008), the Ministry of Transport & Works has defended its decision to replace Prof. Vascianne as chairman of the Air Policy Committee. http://www.jamaicaobserver.com/news/html/20080213T220000-0500_132519_OBS_WHY_HYLTON__AND_NOT_VASCIANNIE__IS_THE_RIGHT_MAN.asp

The Ministry focuses almost entirely on the suitability of Noel Hylton as Prof. Vasciannie's successor, citing Mr. Hylton's supposed credentials in the field of shipping and aviation. My wife Alison had an excellent rebuttal, which was published in the Observer of Feb. 15, 2008. The essential point that Alison raises is that Noel Hylton's credentials were never in issue; what was, and continues to be in issue, is why the government saw fit to replace Prof. Vasciannie at all, considering its own acknowledgement of what he had accomplished as committee chair.

See http://www.jamaicaobserver.com/letters/html/20080214T210000-0500_132545_OBS_MINISTRY_OF_TRANSPORT_MISSES_THE_POINT_ON_VASCIANNIE.asp

Second and final exchange with Dr. Stoddart

2008-02-14T12:10:00.002-05:00

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

_____________________________________________________________________________________

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.

_____________________________________________________________________________________

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

_____________________________________________________________________________________

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

Very principled stance, Dr. Sangster- letter to Observer on February 11, 2008 by the Rev. Dr. Mervin Stoddart

2008-02-12T11:58:00.000-05:00

The Rev. Dr. Mervin Stoddart paid tribute to Dr. Sangster's 'principled stance' in not joining with his erstwhile colleagues in challenging the PM's decision to fire them. See: http://jamaicaobserver.com/letters/html/20080210t180000-0500_132386_obs_very_principled_stance__dr_sangster.asp

I had an exchange with Dr. Stoddart, which is set out hereunder:

MY EMAIL TO DR. STODDART OF FEBRUARY 11, 2008

Dr. Stoddart,

For a self-described man of the cloth, I find your concept of principled behaviour to be incomprehensible to say the least. In your panegyric to Dr. Sangster in today's Observer, you 'salute' him for his "very gentlemanly and honourable stance concerning the dismissal of PSC members by Prime Minister Bruce Golding". You claim that "Dr Sangster's principled stance in the PSC saga was based on that body's seemingly unjust treatment of attorney Lackston Robinson".

My first question to you would be this: if Dr. Sangster was as principled as you claim, why didn't he express these views earlier? Why now? If didn't he resign, rather than allow himself to be fired with the rest of the PSC members? Why didn't he express these views in any of the meetings that he and his colleagues had with the Prime Minister prior to their dismissal? With respect to the Lackston Robinson issue, why didn't Dr. Sangster protest his dismissal on this ground, given that he was not a member of the PSC that originally made the decision to retire Lackston Robinson in the public interest? Is this your idea of "principled behaviour'?

Apart from your questionable notions of principle, you (and Dr. Sangster) are quite wrong on some of the critical facts. Firstly, there was never any order of reinstatement regarding Lackston Robinson. If you have not seen the judgment of Mr. Justice Jones, I urge you to read it for yourself. Perhaps neither you nor Dr. Sangster understand the import of this judgment, which was simply that the decision of the PSC to retire Lackston Robinson was wrong in law, because of a failure to follow certain legal procedures. What you may not know is that the PSC was more than entitled to repeat the process of retiring Lackston Robinson, provided that it complied with the law in so doing. Instead, the PSC took the advice of the Attorney General's Chambers in seeking to transfer Mr. Robinson to another position in the public service, something that the PSC is in law, authorized to do.

In your praise of Dr. Sangster's 'principled stance', I note that you omitted any reference to Dr. Sangster's preoccupation with a 'dead cat reference' made by Dr. Vasciannie in 2002 with respect to Bruce Golding's return to the JLP. Dr. Sangster himself admits that this concern arose only AFTER he and his colleagues had already signed off on Dr. Vasciannie's selection as Solicitor General. The essen

The essential implication of Dr. Sangster's thinking is that Stephen Vasciannie should have been denied selection as SG, not because of lack of qualifications, but for a public criticism of Bruce Golding made in 2002! A further implication of Dr. Sangster's position is that the PSC should have deferred to some imagined prejudice on the part of the political directorate, in plain violation of the constitution of Jamaica. Now, Dr. Stoddart, does this represent "principled" behaviour? Dr. Sangster claimed, without substantiation, that Dr. Vasciannie's previous commentary could "create strained relations" between Dr. Vasciannie (as SG) and the Prime Minister. Again, is this what you seriously consider as "principled"?

In your world of principle, Stephen Vasciannie ends up being the scapegoat for failing to withdraw himself as a candidate. In my world of principle, Dr. Stoddart:

1. Stephen Vasciannie was lawfully selected to be the next Solicitor General,; there is therefore no rational or legal basis for him to have withdrawn. He like any other Jamaican, is entitled to the protection of the rule of law, something that doesn't appear to matter in your world of principle.

2. This "sordid, unfortunate affair" as you put it, has nothing to do with Dr. Vasciannie's failure to withdraw, but with the government's failure to honour the constitution and the rule of law. The constitution and the rule of law represent the supreme 'principles' in a democracy, which again, do not appear to have a place in your world of principle. It is beyond debate that the PSC was entitled to select the Solicitor General without political interference.

3. Violation of principles have consequences. An immediate consequence is the politicization of the Attorney General's Chambers, something that has never happened in the Jamaica's 45 + years of independence. Anybody selected by the 'new' PSC' to be SG cannot escape being labeled as a 'JLP' functionary, instead of an independent public official. The new PSC itself, cannot avoid this label.

In my world, Dr. Sangster is no Daniel walking choosing to walk into the den of lions. In my world, he is a coward who ran at the first roar.

Best regards,

O. Hilaire Sobers

_____________________________________________________________________________________

DR. STODDART'S RESPONSE OF FEBRUARY 12, 2008

Dear Dr. Sobers:

Thanks for your very well reasoned feedback. Although it was sometimes caustic, I elected to absorb the acidity and focus on your rationale for taking the stance that you so eruditely expressed in your previously published newspaper article and which you explained again to me in your email.

I have read at least 20 articles and listened to other discussions on the PSC issue. I can't remember any comment from Dr. Vasciannie, except maybe a mild reference in some speech to a group. I read Dr. Sangster's published comments and did my own analysis, coming to the conclusions that I expressed in my Observer letter.

You and I take opposing positions re Dr. Sangster's stance, obviously. I have chosen not to write an article and not take a stance on the Vasciannie appointment nor the dismissal of the PSC, except the inferences that could be drawn from my position on Dr. Sangster's stance. I prefer that the courts make their rulings and I privately mused, like Dr. Carlton Davis expressed publicly, that the whole thing was a tragedy that should have been handled differently. I made one suggestion on how it might have been handled differently, namely, Prof. Vasciannie withdrawing his nomination (for the sake of peace). Why would anyone want to assume a post which before it even began was surrounded by mess?

That dead cat story was not very relevant for my opinion on Dr. Sangster's brave stance but whatever might be the reason for the apparent differences between PM Golding and Dr. Vasciannie, I think our country might have been best served if the professor had withdrawn and then taken his protests to arbitration or court or some forum where justice could be considered. So far, however, I have read nor heard nothing to suggest tht Prof. Vasciannie is behind the lawsuit brought by PM Portia and the dismissed PSC members. God bless.

-M. Stoddart

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Commentary on litigation by dismissed PSC members

2008-02-10T22:00:00.000-05:00

Somewhat belatedly, I am offering a few comments on the litigation initiated by the dismissed PSC members, with particular reference to Daisy Coke's affidavit. This is the lead affidavit in support of the application for judicial review of the Prime Minister recommendation to dismiss the PSC en bloc.

I will state upfront that I believe the affidavit evidence proffered by Daisy Coke ("DC"). It will be interesting to see what the PM says in response. I simply cannot see the PM being able to craft a credible response to DC's affidavit.

One of the intriguing revelations of DC's affidavit is the PM's expression of confidence in the PSC when he first met with them on September 26, 2007. He was fully briefed on the status of the PSC's work, including arrangements being made to interview applicants for the post of Solicitor General during the first week of October 2007. It is quite clear from the affidavit that the PM did not express any preference for a particular candidate. However, following his Attorney General's objection to Stephen Vasciannie's selection, the PM later summoned the PSC to a meeting on October 31, 2007 to rage at them for attempting "to shove Dr. Vasciannie down his throat and to mash up the Government”.

The PM clearly made no attempt to give the PSC members a fair hearing before dismissing them for so-called "misbehaviour". The PSC members first learned of the particulars of this "misbehaviour" when the Gleaner published excerpts of a letter by the PM to the Leader of the Opposition dated November 16, 2007. In a meeting with DC on November 16, 2007, the PM did not provide particulars of misbehaviour; instead he told DC that he had already issued a letter “to terminate the PSC en bloc”. It was during this conversation that the PM asked DC whether the PSC's decision to recommend Stephen Vasciannie had been vitiated by (a) having John Leiba and Carlton Davis on the interviewing panel; and (b) the non-recusal of Pauline Findlay, given that she and Michael Hylton have a child together.

Is the PM kidding? Didn't someone advise him that the PSC is authorized by law to have non-Commissioners assist in the processing of applicants? Why would he throw his own Cabinet Secretary 'under the bus', so to speak? Wouldn't the Cabinet Secretary not have briefed him beforehand of his role and function with respect to the PSC??

With respect to Pauline Findlay, I didn't think that Prime Minister Golding would have stooped so low to raise her relationship with Michael Hylton. No surprisingly, DC's response was "I was so astonished by this statement from the Hon. Prime Minister which I regarded as entirely improper, that I was unable to utter a response". Interestingly, Pauline Findlay states in her affidavit that she recused herself when the PSC was considering Michael Hylton for the position of Solicitor General back in 2000. This was certainly the proper thing to do at the time. There was no basis for her to do this again in considering applicants that did not include Michael Hylton. The PM has charged that she should have recused herself because she was aware of a 'less than harmonious relationship' between Hylton and Leys. What rot!

According to DC's affidavit, Dorothy Lightbourne, the Attorney General called her on October 18, 2007, to object to Stephen Vasciannie's selection as SG. As has been well publicised, the AG objected to Stephen Vasciannie because of a purported lack of litigation experience. The AG told DC that her preference was Douglas Leys. As far as I am concerned, the AG trespassed on the province of the PSC by expressly objecting to the PSC's choice. Nevertheless, DC bent over backwards to negotiate with the AG, even meeting with the AG at her Chambers on October 24, 2007. The AG refused to budge from her position, despite DC pointing out to her that the PSC had had the input of the then incumbent SG on the qualifications for the job. I really have to ask, what does Dorothy Lightbourne know about running the Attorney General's Chambers that would be superior to Michael Hylton's knowledge and experience? Dorothy Lightbourne has spent most, if not all of her professional life as a sole practitioner, with no track record of managing lawyers, at all. By contrast Michael Hylton was a partner at Myers Fletcher & Gordon for more than a decade before he became Solicitor General in January 2001. It seems that Dorothy is out of depth, but doesn't know it, even less so, her Prime Minister.

Apart from violating the rule of law, the government's behaviour has been singularly vile with respect to its treatment of the PSC members. The only hope of redress lies with the Jamaican courts. Let's hope they do their job.

One application for post of Solicitor General -RJR -Feb.08, 2008

2008-02-08T21:00:00.000-05:00

RJR confirms that the only applicant so far for the post of Solicitor General is Douglas Leys. One working day remains for applications to be submitted. RJR also reports that neither Patrick Foster nor Stephen Vasciannie have re-applied for the post.

http://www.radiojamaica.com/content/view/5359/26/

Commentary on SG advertisement

2008-02-07T22:27:00.001-05:00

So far, I gather that the "new" Public Service Commission has received only one application from Douglas Leys in response to its advertisement for applicants for the post of Solicitor General. I can imagine that Amb.Rainford, et al must be scratching their heads wondering why no other contenders have presented themselves. Doesn't take a Ph.D. in astrophysics to figure out why there isn't a flood of applications piling up on Amb. Rainford's desk.

The advertisement represents a shameful repudiation of the rule of law. A lawful recommendation for the post was already made by the Coke-PSC, which remains unaffected in law, by the subsequent dismissal of that PSC in December 2007. On what legal basis can this pseudo-PSC pretend that this recommendation was never made? What legal basis can the Governor General refuse to act on the recommendation of the Coke-PSC, but then act on the recommendation of the pseudo-PSC on the same subject matter?

In my view, Stephen Vasciannie would definitely have a cause of action against the pseudo-PSC for its failure to acknowledge, much less respect his selection as Solicitor General. At the very least, I could see a case for some sort of injunction against the pseudo-PSC, restraining it from embarking on a new (and in my view, illegal) exercise to recruit and select a Solicitor General.

Despite the pending litigation to challenge the dismissal of the Coke-PSC, this pseudo-PSC has contemptibly set April 01, 2008 as the date for the new SG to take office. This reinforces the intent of the government to have its way, regardless of the outcome of court proceedings or the rule of law itself.

After all the song and dance about Stephen Vasciannie's so-called lack of litigation experience, the advertisement does NOT identify litigation experience as the principal qualification for the post of Solicitor General, or indeed at all! Appearing in major court matters is only mentioned as one of SEVEN of the core duties of the Solicitor General!

A good friend sent me an amusing response to the Solicitor General advertisement issued by the "new" Public Service Commission.

"Dear Sir/Madam,

One considers it appropriate to bring this advertisement to your
attention. One's understanding is that there has been some controversy
attendant upon earlier attempts to fill this position, but one verily
hopes that this will not deter candidates. One is obliged to note that
the core duties associated with the post include a considerable range of
matters, and that contrary to what may have been circulated hither and
thither the candidate's degree of seasoning in the field of litigation
is a factor, but not the only one, to be considered by the Public
Service Commission. At this juncture, one also considers it significant
to mention that the aforementioned Public Service Commission may or may
not retain its current composition as of the date when applications are
received. Some writers maintain that rules of the Constitution apply to
this position, but one wishes not to opine on this issue.

Yours faithfully,

"One"

Recent newspaper advertisement for applicants for position of Solicitor General

2008-02-07T18:18:00.001-05:00

Here is a recent newspaper advertisement by the Public Service Commission seeking applications for the post of Solicitor General.

Is it personal, Mr. Golding? By Alison Irvine- Observer- Feb.05, 2008

2008-02-05T16:35:00.000-05:00

Today's Observer also features a pointed critique by my wife Alison Irvine of Prof. Vasciannie's removal as chair of the Air Policy Committee. Alison exposes the folly of replacing Prof. Vasciannie, who not only has the qualifications for the job, but whom the government has recognized as having performed creditably during his tenure.

Alison points to the Attorney General's endorsement of Stephen Vasciannie's credentials in international law/international relations at the same time that she was objecting to his selection as SG, because of a purported lack of litigation experience. Certainly, Stephen Vasciannie cannot be disqualified from chairing the Air Policy Committee because of any lack of expertise in international law/relations as regards the formulation of Air Policy.

Noel Hylton, Alison points out, is chair of the Police Service Commission. Like the Public Service Commission, the Police Service Commission was sued for retiring a person in the public interest. The Police Service Commission retired a police inspector in the public interest, but the Supreme Court quashed the decision as unlawful for failure to observe natural justice. Alison rightly questions why the Police Service Commission was not subject to the same treatment as the Public Service Commission, following a similar adverse judicial review (in respect to Lackston Robinson).

The bankrupt order of Jamaican politics continues, despite Mr. Golding's promise of something new and different.

http://activepaper.olivesoftware.com/Repository/ml.asp?Ref=Sk1PLzIwMDgvMDIvMDUjQXIwMDkwMA==&Mode=Gif&Locale=english-skin-custom

Why this animosity towards Professor Vasciannie? - Observer editorial - Feb.05, 2008

2008-02-05T16:22:00.000-05:00

The Observer has an excellent editorial today (February 05, 2008) on the issue of Prof. Vasciannie's removal from the chairmanship of the Air Policy Committee. See:

http://activepaper.olivesoftware.com/Repository/ml.asp?Ref=Sk1PLzIwMDgvMDIvMDUjQXIwMDkwMA==&Mode=Gif&Locale=english-skin-custom

The Observer juxtaposes Prof. Vasciannie's removal with the government's opposition to his appointment as Solicitor General. The Observer notes that this behaviour on the part of the government is evidence of animosity toward Prof. Vasciannie and indeed what "appears to be the genesis of a campaign to deny him the opportunity to serve his country". Well said Observer!

Douglas Leys re-applies for Solicitor General post - RJR - Feb 04, 2008

2008-02-04T12:57:00.000-05:00

According to a news report from RJR, Douglas Leys has re-applied for the position of Solicitor General.

PSC Court documents

2008-02-03T19:07:00.000-05:00

I have uploaded the court documents filed by the dismissed PSC members (except for affidavit by Mike Fennell). The links to these documents are on the home page of the blog. The main affidavit by Daisy Coke is available here:

http://www.scribd.com/doc/2034515/affidavit-coke-daisy

Letter of the day - Sangster lets the puss out the bag- Sunday Gleaner, Feb.03, 2008

2008-02-03T18:09:00.002-05:00

Former Attorney General and Opposition spokesman on justice, Senator A.J. Nicholson, QC, has a letter in today's Sunday Gleaner commenting on Dr. Sangster's public support of the PM's dismissal of the PSC. http://www.jamaica-gleaner.com/gleaner/20080203/letters/letters1.html.

One of the critical points addressed by Senator Nicholson is Dr. Sangster's claim that he (Dr. Sangster) made "three attempts to have the PSC members review the recommendation but he was not successful in having it withdrawn". Sangster did this because he believed that "the utterances of Professor Vasciannie could undermine the potential relationship between the office of the solicitor general and the prime minister".

Senator Nicholson pointedly asks: "Who told him so?" I agree with Senator Nicholson that it "certainly could not be an unprovoked assumption on his part", and that the "prime minister has never publicly given this as a reason for his actions." Senator Nicholson asked this question in the context of the express reasons given by the PM for dismissing the PSC. The issue of interpersonal compatibility with Prof. Vasciannie was certainly not one of these reasons. Indeed, Daisy Coke's affidavit (reported on in the Sunday Observer of Feb 03, 2008) expressly states that the PM had no personal difficulty with Prof. Vasciannie.

A.J.'s view of Dr. Sangster, that he has 'let the puss out of the bag', is perhaps the most charitable thing that can be said about Sangster. For me, Sangster has not really let the puss out of the bag, so much as he has simply reconfirmed what was already quite clear: that Bruce Golding's dismissal of the PSC was prompted by arbitrary considerations, and not by the rule of law.

Gov't axes Vasciannie from Air Policy Committee- Sunday Observer, Feb 03, 2008

2008-02-03T17:00:00.000-05:00

The Sunday Observer has also published a story on the removal of Prof. Stephen Vasciannie as chairman of the Air Policy Committee. There appears no rhyme or reason for replacing Stephen Vasciannie, an expert in international law/relations, with Noel Hylton, a septuagenarian, who has no similar experties. This action by the government, combined with the derailment of Prof. Vasciannie's selection as Solicitor General is indicative of a sinister agenda to undermine or discriminate against Prof. Vasciannie, regardless of the competence he brings to either position.

In November 2007, the Attorney General had objected to Prof. Vasciannie's selection as SG because of a purported lack of litigation experience. This objection cannot validly be invoked with respect to Prof. Vasciannie's chairmanship of the Air Policy Committee, given Prof. Vasciannie's undisputed credentials in the area of international law/relations.

This development further confirms the government's agenda of arbitrary governance, despite the lofty promises of 'inclusiveness' made by the Prime Minister at his inauguration.

See the Observer story at: http://activepaper.olivesoftware.com/Repository/ml.asp?Ref=Sk1PLzIwMDgvMDIvMDMjQXIwMDMwMg==&Mode=Gif&Locale=english-skin-custom

Sunday Observer story on suit against PM by Daisy Coke, et al- Feb.03, 2008

2008-02-03T16:56:00.000-05:00

The Sunday Observer has published an important story centred on the affidavit filed by Daisy Coke in the suit against the Prime Minister, challenging his dismissal of the PSC. It is definitely a must-read.

http://activepaper.olivesoftware.com/Repository/ml.asp?Ref=Sk1PLzIwMDgvMDIvMDMjQXIwMDEwMQ==&Mode=Gif&Locale=english-skin-custom

Why now Dr. Sangster?

2008-02-02T10:41:00.001-05:00

The Observer has also published my letter on Alfred Sangster and the

PSC:http://www.jamaicaobserver.com/letters/html/20080201T190000-0500_132065_OBS_WHY_NOW__DR_SANGSTER_.asp

My letter appearing in today's Gleaner- "Sangster and the PSC"

2008-01-31T19:57:00.001-05:00

Today, the Gleaner published my critique of Alfred Sangster's public condemnation of his erstwhile colleagues and his support of the PM dismissal of the PSC. Here is the link:

http://www.jamaica-gleaner.com/gleaner/20080131/letters/letters2.html

The Cobb Family Lecture-The Human Rights Project in Jamaica- by Prof. Stephen Vasciannie

2008-01-30T19:52:00.000-05:00

On January 24, 2008, Professor Stephen Vasciannie delivered the Cobb Family Lecture entitled The Human Rights Project in Jamaica. With the kind permission of Prof. Vasciannie, the text of his lecture is reproduced here. Please respect Prof. Vasciannie's copyright!

The Cobb Family Lecture

The Human Rights Project in Jamaica

Chairman, Ambassadors Cobb and LaGrange Johnson, Members of the American Friends of Jamaica, Public Defender, Specially Invited Guests, Distinguished Ladies and Gentlemen:

I am grateful for the opportunity to give this lecture today. Ambassador Cobb: this lecture is a tribute to you and to the important work you did while you served as the United States ambassador to Jamaica. As has been said, you were a frank, hard-working and successful ambassador here. You have been a friend of the University, and I remember, for instance, that you were instrumental in arranging of the seminar in honour of Ralph Bunche in collaboration with the Department of Government at Mona. I also recall that a number of lecturers in the Department of Government participated in various activities with the American Government during your period of stewardship, particularly in respect of hemispheric security questions. Ambassador Johnson has continued the tradition of good relations between the United States Government and the University; the good relations are evident from Ambassador Johnson’s presence here today. I would also like to thank Dr. Gossell Williams for the determination and organization skills that she has put into the Cobb Lecture.

My presentation is about human rights. From the outset, I wish to acknowledge, with gratitude, the persons who have contributed significantly to the human rights project in Jamaica. For many years, the Independent Jamaican Council for Human Rights, under the leadership of Dr. Lloyd Barnett and with persons such as Dennis Daley and Nancy Anderson, has done sterling work in the field. Similarly, Hilaire Sobers and Mrs. Yvonne McCalla Sobers have made major contributions, and remind us in various ways that if the State abuses your rights today, they will abuse mine tomorrow. They all remind us too that human rights principles must be available to all without fear or favour.

What is the state of human rights in Jamaica today? Naturally, the responses to this question will vary from person to person. What is striking, though, is the deep chasm that appears to exist between the perspectives of the optimists and pessimists on this question. The optimists are inclined to argue that Jamaica, for all challenges, has made considerable progress in the area of human rights. For them, the country has a constitutional system that enshrines fundamental rights and freedoms; these rights and freedoms are respected in large measure by the State; the State does not willfully seek to violate individual rights; and where breaches of human rights are perpetrated, the State and its institutions try to effect remedies in the interests of victims.

In contrast, the pessimist is apt to argue that the constitution does not do enough to ensure human rights, and that, in any event, even the stated constitutional safeguards are given only limited effect in practice. Sometimes it seems that the human rights debate is not over whether the glass is half-full or half-empty: it is more about whether the glass exists any at all.

The gap between how the State views its performance in the area of human rights on the one hand, and how Jamaican citizens rate the State, on the other, has not been fully explored in the literature pertaining to Caribbean law and politics. It is, however, a point that will be familiar to most denizens of the Region, and certainly of Jamaica. Various Ministers of Justice in Jamaica have made State of the Nation Addresses and other pronouncements confirming the State’s commitment to human rights, and have, as a matter of policy, insisted that the Jamaican Government should respond officially to the Inter-American Commission on Human Rights, the United Nations Human Rights Committee and other bodies on all issues pertaining to the promotion and protection of human rights in Jamaica.

In short, they have accepted that Jamaica should adhere to the rule of law. But the gap is evident, for, notwithstanding official pronouncements and responses, the people of Jamaica also know about the situation in the street: “de runnings” as we are inclined to call them. And on the street, the perception is frequently that the most basic human right – the right to life – can be taken with impunity by some members of the security forces. So, objectively speaking, the State is challenged: it wants one thing, and offers the rhetoric in support of that goal. But, for reasons that will be canvassed below, some of the State’s agents want something different, and armed with guns, these agents are prepared to violate the law, to take life unlawfully.

Against this background, questions concerning human rights are of considerable interest in Jamaica. In this presentation, I wish to consider the main factors that influence the perception and the reality concerning human rights in the country. My intention is to provide some ways of thinking about human rights issues in the country: you know much of the text, but I will offer some elements of context. I will do this by looking at a series of propositions about human rights law and practice.

(1) The Constitution does not deliver on its promise.

The Jamaican Constitution provides an important foundation for the promotion and protection of human rights in the country. Chapter III of the Constitution – on fundamental rights and freedoms -- sets out a substantial list of civil and political rights. These rights are expressly said to trump any legislation or other State action, so that if the Government passes a law that is in conflict with any one of the fundamental rights and freedoms, that law will be null and void to the extent that it conflicts with Chapter III. This foundation is important not only because it provides State agents with advance notice as to how far they may go in seeking to curtail individual rights, but also because it represents a statement by the society as to what we recognize as our most significant values. Subject to certain qualifications, the main human rights so recognized in the Jamaican Constitution are as follows:

(a) The right to life;
(b) The right to liberty;
(c) Freedom of movement;
(d) Protection from inhuman treatment;
(e) Property rights;
(f) Protection for privacy of home and other property;
(g) The protection of law;
(h) Freedom of conscience;
(i) Freedom of expression;
(j) Freedom of assembly and association;
(k) Protection of discrimination on grounds of race, , place of origin, political opinions, colour or creed.

This list therefore serves as the starting-point for our understanding of human rights in Jamaica, and to that extent, it must be recognized as key to the promotion and protection of rights. Indeed, given that it incorporates most, if not all, of the civil and political rights recognized in Western societies, it may be regarded as a promising foundation.

On closer examination, however, the provisions of Chapter III of the Constitution, are subject to noteworthy criticisms from a rights perspective. To begin with, Chapter III is formulated in terms of “lawyers’ law”. Thus, some of its provisions are not easy to understand, and in several places the basic human rights are subject to qualifications that require careful analysis.

To take one example, we all share the view that everyone is entitled to liberty, and in practice, we are inclined to view incursions into that right as violations on the part of the State. But the Constitution takes a detailed approach to the question of liberty; so, after stating the basic principle, it goes on to enumerate at least eleven circumstances in which personal liberty may be restricted. These include, among others: unfitness to plead a criminal charge, the execution of a court sentence for a crime, imprisonment for contempt of court, detention before trial, detention on suspicion of having committed a crime, detention of minors for the purpose of education or welfare, detention to prevent the spread of an infectious or contagious disease, detention for the care or treatment of persons of unsound mind, addicted to drugs or alcohol, or vagrants, and detention to prevent unlawful entry or to ensure expulsion or extradition.

Now, on the face of things, most of these restrictions are reasonable in the sense that they help to preserve the interests of both individuals and the State; however, when all these qualifications are juxtaposed immediately against the principle that “no person shall be deprived of his personal liberty”, one may wonder about just how much of the principle is left.

In some cases, too, the rights provisions in Chapter III of the Constitution are limited by general language that cuts down the capacity of the provisions to promote and protect the cause of individual freedom. To be more specific, the Constitution guarantees freedom of movement, the right to privacy of home and property, freedom of conscience, freedom of expression and freedom of assembly and association; the relevant provisions give the impression, then, that each of these rights is of great social value, to be limited only on an exceptional basis. But, in fact, each of these rights is curtailed by general language to the effect that the rights may be trumped by any law “which is reasonably required in the interests of defence, public safety, public order, public morality or public health.” This proviso means that as long as the State may reasonably argue that it has to limit basic human rights for reasons of defence and so on, the rights may be reduced to nothing. There is an understandable logic to this approach, for with respect to defence, public safety, public order and public health, the founding fathers of the Constitution could reasonably have decided to attach greater significance to collective rights than to the human rights of the individual person.

Even so, however, the approach taken to collective rights is vulnerable to criticism in at least two respects. First, because the exceptions are so general, the State is arguably given too much latitude: in effect, the only limit on the State here is that the restrictions are “reasonably required”. For some, this requirement is quite vague and it allows the State to take action that may only be challenged ex post facto. There, therefore, is no clear attempt in the Constitution to emphasize that restrictions on freedoms such as movement, conscience, expression and assembly are fetters to individual liberty, to be treated as highly exceptional.
Second, the exception for “public morality” may be open to particular criticism. Clearly, in some cases private and public morality may differ; and if this is the case, what is the underlying principle by which it is ordained that public morality must always prevail as a matter of law? The jurisprudence of human rights in some other jurisdictions has tended to attach increasing significance to private morality, largely on the basis that if what you do does not harm other persons – relying on Mill and Hart – then the law has no place in restricting your behaviour.

Without expressing a final view on whether private morality should necessarily trump public morality, it seems to me that the Jamaican Constitution has turned the issue on its head: it suggests that public morality, as determined by the State, may always trump freedom of expression, freedom of conscience, and the right to privacy, as long as this is believed to be reasonably required. In short, the Constitution limits the scope for debate about how far moral concerns should enter our assessment of laws by allowing the State to defend restrictions on human rights on the ground that the rights are inconsistent with the inherently vague concept of public morality. Suppose, for example, a man adheres to religious practices that hurt no one, but which may be contrary to the majority, Christian traditions in the country: should the State be able to prohibit these practices on the basis that prohibition is reasonably required to preserve public morality? Freedom of conscience suggests one answer, the public morality exception suggests another.

The Constitution, though starting with the premise that we all have fundamental rights and freedoms, does not fully live up to the rhetorical promise that these rights are supreme. The rights are asserted, but then they are hedged in by numerous exceptions. Some of these exceptions are necessary for the maintenance of good order and to balance the rights of the individual against the wider society. If, however, you expect a constitution to be a strong endorsement of the basic, core rights that individuals possess in your society -- the social contract between the person and the State – then the Jamaican Constitution does not play a particularly strong role.

(2) Human rights safeguards in the Constitution are undermined by savings clauses.

In a fundamental sense, the savings clauses in the Constitution serve to whittle away several human rights safeguards that the Constitution itself appears to grant. With respect to the rights in Chapter III, the most directly relevant savings clause is found in Section 26(8) of the Constitution. Section 26(8) reads as follows:
“Nothing contained in any law immediately before (the date of independence) shall be held to be inconsistent with any of the provisions of this Chapter; and nothing done under the authority of any such law shall be held to be done in contravention of any of these provisions.”

In summary form, this clause ensures that no law which was valid before the date of independence from Britain can be struck down as unconstitutional, or contrary to basic human rights law in Jamaica: pre-independence rules are sacrosanct, pre-independence human rights norms are preserved. This type of savings clause was probably adopted in the Jamaican Constitution (and in a number of other Caribbean Constitutions) as an administrative convenience to avoid uncertainty as to basic rights and freedoms with the coming of independence; and it may well have been assumed by the British authorities that that no pre-independence law was incompatible with basic human rights norms in any event. Given, however, that human rights standards can and do evolve with the passage of time, and that perceptions of human rights sometimes change to suit new social and philosophical approaches, it is undesirable to freeze human rights law in Jamaica in the terms of Section 26(8).

As presently structured, therefore, the savings clause provisions incorporate a deeply conservative approach to human rights law in Jamaica. If the British authorities or the Jamaican legislature restricted a certain human right before independence, then that restriction is still valid in 2008. The conservatism inherent in this approach may be readily demonstrated with reference to the question of flogging and whipping. The United Nations Convention on Torture, Cruel and Inhuman Treatment prohibits these forms of punishment. And yet, in a region that should reject flogging and whipping as part of the unwanted legacy of slavery, flogging and whipping may still be constitutional because they have been “saved”, either by Section 26(8) or by another savings provision pertaining to forms of punishment set out in Section 17(2) which states in essence that punishment that was not regarded as inhuman or degrading before independence retains this status in the post-independence period.

For example, in R v. Errol Pryce, a case from 1994, the Jamaican Court of Appeal upheld a sentence of whipping. Carey P (Ag.), writing for the court noted, among other things, that because the Crime (Prevention of) Act sanctioning whipping was in force before independence, it was preserved by Section 26(8). To be sure, in a more recent case, R v. Noel Samuda (1996), the Court of Appeal refused to uphold a sentence of whipping primarily on the basis that the statutory provisions in the instant case (the Crime (Emergency Provisions) Act of 1943), and subsequent provisions passed by reference thereto) were not actually in effect in Jamaica at the time the sentence was imposed. Significantly, though, in R v. Noel Samuda, a majority of the judges, Bingham J.A. and Harrison J.A. expressed views suggesting that the savings clauses in Sections 17(2) and 26(8) could be used to uphold flogging and whipping if these sentences validly existed before independence. In other words, the savings clause approach may still work to preserve flogging and whipping as long as it can be shown that these forms of punishment are sanctioned by existing legislation that predates independence.

This situation has prompted unequivocal criticism from the United Nations Human Rights Committee, as for instance, in the case of Errol Pryce:

“The Committee notes that the author was sentenced to 6 strokes of the tamarind switch and recalls its jurisprudence, that, irrespective of the nature of the crime that is to be punished, however brutal it may be, corporal punishment constitutes cruel, inhuman and degrading treatment or punishment contrary to Article 7 of the Covenant.” (paragraph 6.2).

The savings clause approach law has also played a role in ganja debate in this country. In August 2001, the Chevannes Commission on Marijuana recommended that ganja should be decriminalized when used in premises not accessible to the public. The Commission built its argument partly on the premise that marijuana use is such an integral part of Jamaica culture that there was little point in trying to maintain criminal sanctions against persons possessing small quantities of the drug. Some of you may know that I have resisted the main recommendations of the Chevannes Commission for a variety of reasons, and I continue to do so. The point for consideration here, however, concerns the fact that the Jamaican courts are, in effect, discouraged from reaching a decision on whether marijuana use amounts in some circumstances to the exercise of freedom of conscience or religion, and therefore supported by the Constitution. Various points may be made in this debate, including points about the weight to be given to freedom of religion versus other social values and concerns that ganja use may have serious negative effects on the wider community. But, this debate is not likely to receive full consideration in the courts because of the savings clause. Specifically, because the Dangerous Drugs Act precedes independence, the Jamaican Constitutional Court held in DPP v. Forsythe that the savings clause works to preserve the legislation from constitutional challenge on human rights grounds. The court relied on other grounds for upholding the Dangerous Drugs Act, including the notion that the Act is “reasonably required” to protect public health; it is fair to suggest, however, that but for the savings clause, there would have been a more extensive judicial consideration of the role of human rights principles in the marijuana debate.

Two further aspects of the savings clause approach may be highlighted here. Particularly in the early years after independence, judges in Jamaica were rarely called upon to assess the constitutionality of Acts of Parliament on human rights grounds; for, at that time, most laws were by definition pre-independence rules. Thus, it is arguable that there did not develop, with any great force, a jurisprudential tradition in laws are questioned in light of human rights norms. This is in contrast with, for example, the situation which was addressed by the South African Supreme Court in the first year following black liberation: in that case, S v Makwanyane, the South African Supreme Court was called upon to consider the constitutionality of the death penalty from first principles.

The very nature of the case, and the fact that there was no short-cut, conservative solution via a savings clause, has helped to affirm the importance of human rights analysis in South African jurisprudence from the outset. In the case of Jamaica, the situation is changing, and one notes in passing that, recently, in the case concerning the Portmore Toll Road and in the Trevor Forbes Case, concerning extradition, novel but ultimately unsuccessful arguments based on the human rights listed in Chapter III of the Constitution, were presented to the Judicial Committee of the Privy Council.

Secondly, it is to be remembered that the savings clause does not work to save laws that have been passed since independence. In the case of Lambert Watson v. The Attorney General of Jamaica, the Judicial Committee of the Privy Council held that the mandatory death penalty, as contemplated by Jamaica, was not preserved by the country’s savings clause because the law setting out the mandatory death penalty – the Offences Against the Person Act – had been amended following independence. For their Lordships, the savings clause is to be read restrictively, and amendments to pre-independence laws bring the entire pre-independence law within the purview of the courts. From a human rights standpoint this approach has value, for it limits the cases in which the savings clause will be applicable to laws that have remained untouched since 1962, a category which will diminish in size with the passage of time.

But, the Lambert Watson decision also highlights the paradox of pre-independence savings clauses. In this case, the relevant provisions of the law were amenable to constitutional review by the Privy Council only because the law had been amended in 1992. A law passed by the Colonial Power or by the Jamaican legislature before independence would, in effect, have greater binding force than one passed by the legislature of independent Jamaica. Nor is this a theoretical proposition. On the same day that the Privy Council delivered its judgment striking down Jamaica’s death penalty law, a law which had been intended to restrict the instances in which the death penalty was applicable, the same court upheld mandatory death penalty laws for Trinidad and Tobago and Barbados. The laws in the latter two countries applied the death penalty to a larger category of murders than the Jamaican law; those laws were held to be valid by a majority of the Privy Council essentially on the basis of the savings clause.

Overall, therefore, the promise of the Constitution, already limited by several restrictions in respect of particular rights, is further restricted by the existence of savings clauses. As a given society evolves, judges may well wish to consider whether human rights standards also change. Indeed, we are familiar with vibrant debates concerning the United States Supreme Court about whether judges, in interpreting a constitution, should apply the text and originalist conceptions of that text or whether they should assuming that the Constitution is a living document and thus eschew the so-called strict constructionism.

In the case of Jamaica, however, we are required to assume that pre-independence laws are always virtuous until the legislature indicates otherwise in new legislation. This undermines judicial creativity and places a premium on the past. It also helps to explain why for some areas of the law the basic human rights set out in Chapter III of the Constitution remain largely irrelevant.

(3) Some human rights rules in the Constitution need to be amended.

The question of constitutional reform has, with varying degrees of enthusiasm, been on the public agenda in Jamaica for at least thirty years. With respect to human rights issues, the draft Charter of Rights, which seeks to amend Chapter III of the Constitution in various ways, has come close to the port, but it is yet to arrive home. The draft Charter of Rights contemplates a number of important changes, and in some respects, demonstrates certain weaknesses in current human rights rules.

This is true, for example, in matters concerning discrimination on the basis of sex. Specifically, Section 24 of the Jamaican Constitution indicates that no law shall make any provision which is discriminatory; and discrimination is defined as placing persons at a disadvantage for reasons attributable wholly or mainly to their race, place of origin, political opinions, colour or creed.

It seems, therefore, that in some contexts it may still be possible to discriminate against women (or as is less likely, against men) simply on the basis of gender. Admittedly, this possibility is reduced by certain considerations. For one thing, there is actually some ambivalence in the terms of the Constitution. Although Section 24 rather pointedly fails to prohibit gender discrimination, another provision, Section 13 indicates that every person in Jamaica is entitled to fundamental rights and freedoms, regardless of race, place of origin, political opinions, colour, creed or sex.

The provision in Section 13 could ensure that as regards fundamental rights there can be no gender discrimination; but, Section 13 is preambular in its formulation, and there is a view to the effect that it does not actually create any rights and duties. Another factor that may reduce the possibility of State-supported gender discrimination arises from legislation. In the field of employment, Section 3(1) of the Employment (Equal Pay for Men and Women) Act indicates that no employer shall discriminate between male and female employees by failing to pay equal pay for equal work. There has been, of course, considerable debate on whether the requirement of equal pay for equal work actually ensures gender equality in matters of pay, and it may well be that a more appropriate standard would be equal pay for work of equal value, but it is fair to suggest that the Jamaican legislation acknowledges the principle of gender equality in this area.

Clearly, though, the Constitution needs to be amended to incorporate an unequivocal provision on gender equality. On this issue, Jamaican perspectives have certainly evolved since the time of the founding fathers, and if Jamaican society is to make progress and regard itself as fair and just, we cannot retain the implication of inequality in the legal document that reflects our highest aspirations and core values. This is one of the issues on which various sectors of Jamaican society appear to be in agreement.

In 1993, the Jamaican Constitutional Commission “unanimously and unhesitatingly” recommended that the word “sex” should be expressly included in the non-discrimination provision in Section 24 of the Constitution. There should be some degree of embarrassment in the fact that this is still to be done 15 years later. It hardly needs emphasis that if one half of the population is not firmly acknowledged as equal in the Constitution, some people will not take the Constitution seriously.

(4) The level of police killings suggests that, in some matters, agents of the State are prepared to disregard basic human rights.

The most basic human right is the right to life. The State has a duty not only to promote the security and safety of its citizenry, it must also ensure that its agents attach the highest significance to the right to life.

From a constitutional and legislative standpoint, the right to life may appear to be somewhat adequately safeguarded in Jamaica. This conclusion, however, would obviously be a deeply misleading representation of the overall picture concerning the right to life in the country; for, in practice, in Jamaica, the right to life is scarcely respected. Nor is this a recent phenomenon. Official statistics indicate that for the decade 1991 to 2000, 7,965 people were murdered in Jamaica, so that for each year about 796 people were killed on average. For the same period, agents of the State in the form of the police killed 1,389 persons (an average of about 139 persons per year), while 89 police were killed by civilians (an average of almost 9 per year). I have referred to the figures for an entire decade to demonstrate the pattern of murder, and to reconfirm, if reconfirmation is needed, that the question of murder constitutes a long-term, structural problem for Jamaican society.

Jamaica society is sharply divided on the question of police killings. On one side, many will argue that police killings amount to fundamental breaches of the right to life, with such killings being perpetrated as part of deliberate schemes for the destruction of persons perceived by State agents as criminal elements. In support of this viewpoint, the strikingly high level of police killings, the disproportion between police killings and the number of police killed by civilians and the fact that the level of police killings has been at a high level for over three decades, all suggest that the present situation is not accidental. So, for example, from September 1986, Americas Watch argued that both statistical patterns and individual cases suggest that the Jamaican police “seek out” crime suspects and “summarily execute them.” It is also suggested that some members of the security forces are prepared to take advantage of the high crime rate to kill civilians in the pursuit of political and terrorist agendas, private motives or to satisfy sadistic tendencies and other psychological problems.

In January 2008, Former Prime Minister Edward Seaga, referring to a raid by the security forces in which five people were killed, put the matter in these terms:

“In the absence of acceptable answers to the public (on specific questions posed), the conclusion could be drawn that there exists in the Jamaica Constabulary Force killer police who are irretrievably steeped in the deadly practice of state terrorism.”

On this side of the argument, local human rights groups have become increasingly vocal, and in some instances, have sponsored petitions to the Inter-American Commission on Human Rights against the Jamaican State.

On the other side, State authorities in Jamaica have never acknowledged the existence of a policy of deliberate police killings, and have often argued in support of the rule of law. On occasion, some State officials have made statements that could be interpreted as supporting police murder, but some of these statements may also be read as affirmations of the right of self-defence for the police. Even so, however, the level of killings is high, and there is the perception among many that, given the level of criminality in the society, it is entirely understandable that the police should fight back. The wider societal view may well be that callous murderers should not be allowed to act with impunity, and that, in the present legal environment in which the death penalty has not recently been enforced, police killings are necessary to ensure justice with respect to known murderers.

Professor Don Robotham appears to accept it as given that the wider society is in favour of police killings that are not in self-defence; in the Gleaner of January 20, 2008, he wrote:

“Jamaican society cannot be asking security officers to take life with a wink and a nod, and then when they do exactly what we are demanding, throw our hands up in horror and turn around and berate them.”

Robotham also suggests that the security forces “must be heartily tired of the unbearable hypocrisy” of Jamaican society in respect of police killings, and argues that we need to put in place a “rights-governed framework” in which a special segment of the Jamaican judiciary will sit in judgment on security force operations such as that which took place in Tivoli Gardens in January 2008. As part of this scheme, Robotham would also change the rules of engagement so that security agents of the State could use force other than in circumstances of self-defence:

“The challenge is how to specify the situations in which lethal state violence is permissible, and to elaborate and operationalise an effective legal framework to regulate such situations. Let me be crystal clear here: I am referring to the right of the security forces to use lethal force in situations which do not meet the current legal standards of self-defence.”

In this debate, which concerns how security forces should operate in a high crime environment, the better view is that that State should be committed to respect for the right to life. Notwithstanding Robotham’s argument, the security forces should remember that they ought not to take life save in circumstances of self-defence. Whenever the police or soldiers take life for reasons other than self-defence, this not only violates the human rights of the victim, it also reinforces the notion that State agents are prepared to disregard human rights concepts, very often with impunity.

(5) There are other instances in which the State has not fulfilled its human rights obligations.

The issue concerning police killings provides the most visible reminder that in some instances the State has not fulfilled its basic human rights obligations to the people of Jamaica. But there are other examples of this problem. One of these concerns the treatment of persons who are incarcerated within the Jamaican prison system.

In the post-independence period, the Jamaican State has not accorded high priority to the construction and maintenance of prisons, other correctional facilities and detention centres. And, as a result, in many instances conditions at such facilities fall considerably short of elementary conditions for humanity: overcrowding at some facilities is both extreme in magnitude and enduring in character, some buildings are dilapidated, sewerage systems are often inadequate, and generally conditions are simply deplorable.

In these circumstances, it is difficult to argue that Section 17 of the Jamaican Constitution – which prohibits inhuman and degrading treatment or punishment -- is being respected. Of course there is the view that we need not be unduly worried about prison conditions, for, if prisons are too commodious, this may actually promote criminal activity. In reality, Jamaica is nowhere near this particular tipping point: in several prisons, we fall well short of the minimum standards in both law and morality. Against this background, the charge that the State is insensitive to some human rights standards is easily made.

(6) Questions concerning the death penalty have cast a long shadow over the human rights environment in Jamaica.

Of all the human rights questions facing Jamaica, the death penalty raises the most difficult and controversial issues in practice. The response of the international community to Jamaica, and more generally the Commonwealth Caribbean, on this issue has placed us in an invidious position. At times, the death penalty question dominates news about human rights developments in Jamaica, and the impression is engendered that some Jamaican authorities arbitrarily wish to carry out death sentences, influenced by fright, fear and social prejudice. This caricature does not do justice to the complex issues that have attended the death penalty debate both here and elsewhere in the Caribbean.

Both local and international opponents of the death penalty sometimes argue that the retention of the death penalty in Jamaica is inconsistent with International Law. Various European Governments take this position, as do non-governmental organizations such as Amnesty International and the much-respected Independent Jamaica Council for Human Rights. To support their position, these entities note various developments including the fact that the United Nations Human Rights Committee in its First General Comment on Article 6 of the International Covenant on Civil and Political Rights maintained that some aspects of Article 6 “strongly suggest that abolition is desirable.”

By the same token, critics of the Jamaican position on the death penalty point out that the former United Nations Commission on Human Rights had repeatedly passed resolutions calling on States to abolish the death sentence, and emphasize that an increasing number of countries has, in fact, prohibited the sentence in practice. The decision not to incorporate the death penalty among the possible sentences available to the International Criminal Court and other international criminal tribunals has also been mentioned as evidence as to the appropriate way to handle this issue in human rights law.

Jamaica has therefore increasingly been called upon to defend its position in favour of the death penalty. In October 2007, the Government of Jamaica set out some of its arguments in a vote at the United Nations on the subject. For Jamaica, the death penalty is not prohibited in International Law. The governing rule of International Law is set out in Article 6 of the International Covenant on Civil and Political Rights. This provision indicates that everyone has the right to life, and no one may arbitrarily be deprived of this right: given that the death penalty is judicially sanctioned in each case, it cannot reasonably be described as arbitrary. Other provisions of Article 6 have also been raised by Jamaica. So, for instance, Jamaica maintains that Article 6(2) clearly contemplates the possibility of the death penalty in some cases; it reads:

“In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.”

Likewise, Jamaica has argued that where Article 6(5) prohibits the imposition of the death penalty on persons below 18 years of age or on pregnant women, this is taken as convincing evidence that Article 6 does not bar the death penalty for persons falling outside the protected categories. Again, the assertion in Article 6(6) that nothing in Article 6 shall be invoked to delay or prevent abolition of the death penalty is itself presented as confirmation that Article 6 does not itself prohibit the death penalty.

Jamaica has also responded to the specific claims made by European countries outside the context of Article 6. For Jamaica, all the legal arguments raised by death penalty critics actually presuppose the lawfulness of the death penalty. So, for instance, where the United Nations Human Rights Committee indicates that abolition is desirable, this is taken as an acknowledgement that International Law will need to be changed if abolition is to become a requirement of the law. Jamaica has also argued that those treaties that expressly prohibit the death penalty, including the Second Optional Protocol to the International Covenant on Civil and Political Rights and the Protocol to the American Convention on Human Rights to Abolish the Death Penalty have not been widely accepted, and more importantly, have not been accepted as law by Jamaica.

From a positivist standpoint, Jamaica is correct. There is no binding rule of International Law that requires the abolition of the death penalty in all circumstances. At the same time, however, it may be that Jamaica has been heavily legalistic about an issue that has several moral and political undertones. Because of these undertones, there has been a steady flow of criticism of the general human rights record in Jamaica, when in fact the central point of tension has actually been the death penalty. In other words, because Jamaica has remained at least nominally in the retentionist camp on death penalty questions, the country may be the subject of more severe criticism about its human rights record than is warranted by the situation in the country. That is part the long shadow of the death penalty in Jamaica.

Another part of the shadow concerns the well-known line of Privy Council cases that includes Pratt and Morgan v. The Attorney General of Jamaica and Neville Lewis v. The Attorney General of Jamaica. In the former case, the Privy Council held that where, in capital cases, the time between the sentence of death and execution exceeds five years, “there will be strong grounds for believing that the delay was such as to constitute inhumane or degrading punishment or other treatment.” The Privy Council also found that where there was inhumane or degrading punishment or other treatment, contrary to Section 17 of the Constitution, the sentence of death should be commuted to life imprisonment.

One result of this decision was that it placed pressure on the State to ensure that all appellate procedures before the courts are completed in five years. In 1997, the Jamaican Government, when faced with the five-year time period, withdrew the country from the First Optional Protocol to the International Covenant on Civil and Political Rights as a means of expediting death penalty cases. This act prompted considerable criticism from lawyers and human rights activists. Jamaica had withdrawn from a multilateral human rights treaty, and in so doing, had placed itself in a small category of countries to have taken this step; the country had also removed itself from having the benefit of advice from the United Nations Human Rights Committee on a range of human rights questions, including, but not limited to, the death penalty. Again, arising from the death penalty question, Jamaica was represented being significantly against human rights.

The Neville Lewis Case has also had an important bearing on death penalty adjudication in Jamaica. To begin with, in this case the Privy Council appears to have converted the five-year presumption in Pratt and Morgan into an enforceable rule to the effect that once five years have elapsed between sentencing and execution, the death penalty is automatically to be commuted to life imprisonment. Also, in Neville Lewis their Lordships indicated that the State could not effectively place an upper limit on the time within which international human rights bodies could hear petitions in death penalty cases. Thus, if the Inter-American Commission were to take two years to respond to an individual petition, according to the Neville Lewis decision this would simply mean that the convicted person would stand a greater chance of having his sentence commuted than if the Commission were to take nine months to respond.

The upshot is that the Privy Council has created the opportunity for the Inter-American Commission to decide, in effect, who lives and who dies in Jamaican death penalty cases. In this regard, it should be recalled that in the Pratt and Morgan Case the Privy Council had estimated that it would take approximately nine months for petitions to be heard by each international human rights body.

A presentation by the previous Attorney General of Jamaica, A.J. Nicholson Q.C., indicated that of 18 cases involving the full procedure before the Inter-American Commission between 1994 and 2004, none took nine months or less, the shortest period was one year, and the longest was 3 years 5 ½ months. Seven cases took more than 2 years. This suggests that it may be somewhat difficult for Jamaica to carry out the death penalty unless ways are found to expedite the procedures of the Inter-American Commission. It has also been argued that some of the delay in death penalty petitions before the Commission has been prompted by tardiness on the part of the Jamaican Government; if this is the case, then the Government too will need to expedite its procedures in order to meet the five-year time limit. Notice, though, the wider point: in trying to accelerate the pace of the Commission’s work, and in trying to place time limits on the Commission, Jamaica was vulnerable to the charge that it wished to influence the decision-making procedures of an independent human rights body, not the kind of accusation that Jamaica could have welcomed.

(7) Advocates often invoke International Law as decisive in their human rights debates.

As is evident from aspects of the foregoing discussion, human rights rules normally apply at both domestic and international levels. In the case of Jamaica, most assessments of the human rights situation are undertaken with reference to domestic law, not least because individuals exercise their rights and undertake duties primarily with reference to Jamaican law.

Significantly, however, several Jamaican law rules overlap with human rights rules set out in treaties such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the American Convention on Human Rights. This overlap should come as no surprise: as a matter of history, post-World War II human rights rules owe their origin mainly to the Universal Declaration on Human Rights of 1948.

This declaration, a resolution of the General Assembly of the United Nations, set the stage for the formulation of binding treaties such as the European Convention on Human Rights, and the ICCPR and the ICESCR, which were both open for ratification in 1966. Jamaica became independent in the period following the Universal Declaration and the European Convention on Human Rights, and it is clear that in preparing the Jamaican Constitution, the founding fathers relied heavily on the European Convention in identifying the human rights to be treated as fundamental. They incorporated, in particular, the civil and political rights in the European Convention as part of Jamaica’s domestic law.

In a sense, this significant overlap between Jamaican human rights rules and the International Law rules, as set out, for instance, in the European Convention and the ICCPR, has helped the Jamaica State to argue that the country is in the mainstream of international human rights law. But this overlap also carries other implications. One is that advocates in human rights cases are often inclined to cite international human rights developments to support their contentions on various points. This approach has its virtues; among other things, it should prompt us all to remain abreast of changes in International Law, and helps to reinforce the notion that at least some human rights norms are universally applicable. But, the tendency to rely on international human rights law may also carry certain pitfalls, and so, it may be appropriate to sound a warning that international human rights rules need to be applied with circumspection in the Jamaican context.

For a start, it is important to remember that the several economic and social rights set out in the ICESCR do not have the same binding character as civil and political rights. This is so because the ICESCR itself does not contemplate that that all its rules will have binding effect. This treaty lists rights such as the right to education, the right to physical and mental health, the right to work, leisure and the right to an adequate standard of living. Of course, these are important social objectives, and each State should be encouraged to ensure that they are satisfied.

It is difficult to argue, however, that these are objectives are always regarded in all societies as rights that are enforceable in court. The cost of securing these objectives may well be beyond the means of the typical developing country, and conceptually some people argue that human rights properly understood should be limited to acts of restraint by the State, that is, to civil and political rights. In any event, the ICESCR recognizes that some of the rights set out therein may not be immediately enforceable; thus Article 2(1) provides as follows:

“Each State Party to the present Covenant undertakes to take steps, individually and through international assistances and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”

In short, the ICESCR leaves it to each country to determine the extent to which it will satisfy the objectives in that treaty: the fulfillment of these objectives is subject to the country’s available resources. This is not to suggest, for instances, that the right to education is unimportant; it is only to indicate that the extent to which a country fulfills this right is largely to be determined by that country. This point is sometimes not fully appreciated by those who argue that International Law ensures a right to tertiary education in all countries.

In some instances, persons invoke International Law as decisive in human rights matters when, in fact, International Law speaks with ambivalence. Consider the difficult moral, legal and philosophical question of abortion. The Abortion Policy Review Advisory Group in Jamaica has formulated certain recommendations that, no doubt, will be the subject of considerable debate in society. To what extent does international human rights law govern the question of abortion? To date, both advocates and opponents of abortion rights have invoked international treaties to support their divergent perspectives. In some respects both sides are correct, which is another way of saying that international law does not speak decisively on the subject.

More specifically, the ICCPR enshrines the right to life, but it does not indicate the point at which life begins. At one point in the negotiations on the ICCPR, in 1957, five countries (Belgium, Brazil, El Salvador, Mexico and Morocco) proposed language to the effect that “from the moment of conception” the right to life “shall be protected by law”. This proposal was expressly opposed by some States and when the matter was put to a vote, the proposal was rejected by 31 to 20, with 17 abstentions. Thus, the ICCPR does not expressly incorporate what some may characterize as a “pro-life” perspective; and given that the pro-life approach was considered and rejected, one could conclude that the ICCPR does not support that approach. On the other hand, as Shirley Richards of the Lawyers Christian Fellowhip reminded us recently, the American Convention on Human Rights, to which Jamaica is a party, takes a different approach. Article 4(1) of the latter convention states that:

“Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.”

This provision embraces the view that life begins at conception, and therefore serves, at least as a starting-point for the pro-life perspective in abortion matters. If, therefore, Jamaica were to contemplate a permissive regime for abortion, it would be necessary to reconcile that approach with the country’s treaty obligations under the American Convention. But, the matter does not necessarily end there; for Jamaica would also need to take into account the approach taken by the Inter-American Commission in the Baby Boy case. In this case, a majority of the Inter-American Commission rejected the idea that Article 4(1) prohibited abortion in all circumstances. The majority noted that Article 4(1) represented a compromise between States which waned the right to life protected from conception and those which had laws permitting abortion for a number of reasons, and emphasized that the use of the phrase “in general” in Article 4(1) could possibly allow abortion in cases of rape or to save the mother’s life, among other possibilities.

Hence, Article 4(1) of the American Convention holds that conception begins at birth, but the precise implications of this provision are not altogether clear because of the “in general” formulation. At a time when there are suggestions that Jamaican law already allows abortion in some circumstances, and countervailing positions on this point, we would probably have been happy to have clear guidance from international law. But like national law, international law reflects the uncertainties in this area, and so, assertions about what international law says about abortion need to be considered with care.

Two further warnings need to be mentioned about the relationship between international law and Jamaican law need to be mentioned briefly. In the first place, where Jamaica is a party to a treaty, the provisions of that treaty are binding on the country at the international level. So, for instance, Jamaica has accepted that human trafficking is contrary to international law, and has undertaken at the international level to take certain measures to discourage such trafficking. If Jamaica does not introduce those measures, then the country will be in breach of its obligations to other parties to that treaty, at the international level. It is important to note, however, that when Jamaica becomes a party to a treaty, this fact does not in itself give rise to rights and duties within Jamaican law. In the normal case, Jamaicans will not enjoy the rights set out in a treaty unless and until those rights are incorporated into domestic law, usually by an Act of Parliament. This principle is well-established in the law; in Chung Chi Cheung v. R , Lord Atkin explained it as follows:

“It must always be remembered that, so far, at any rate, as the Courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law. There is no external power that imposes its rule upon our own code of substantive law or procedure.”

This rule has had various implications in Jamaican law, and with respect to both the Privy Council and the Caribbean Court of Justice, some judges appear inclined to find exceptions when death penalty questions are involved. The point here, however, is that the rule exists, and it is not open to the Jamaican Government to disregard it. As a result, human rights advocates should seek to ensure that the State follows through on its obligations by bringing into domestic law the treaty rules that they accept at the international level.

Secondly, it is important to note that although treaty rules are binding on States Parties, the interpretations given to those rules by human rights bodies such as the United Nations Human Rights Committee and the Inter-American Commission on Human Rights are recommendations, and as such, are not binding rules of law. Naturally, these recommendations are to be accorded considerable respect as they reflect third-party assessment of the human rights situation in various countries, and as the various bodies have developed significant expertise and authority in interpreting particular provisions of human rights law. But it may also be that in some situations a country may decide not to accept the recommendations of the human rights body for a variety of good reasons.

Generally, the point may be illustrated by two examples. The first concerns the case of Frank Robinson v. R. In this case, the appellant was convicted of murder and sentenced to death, when, faced with the prospect that the main prosecution witness would disappear, the trial judge had insisted upon proceeding with the case, even though the appellant was unrepresented. Prior to the commencement of the trial, the case had been adjourned on 19 previous occasions, owing to the absence of the main prosecution witness. On the 20th occasion, with the witness present, the trial judge started the case even though counsel for the appellant were absent. On the following morning, counsel for the appellant both withdrew from the case apparently because they had not been fully paid. The case proceeded and the appellant was convicted. On the question of whether the appellant had been accorded a fair trial, the Privy Council considered Section 20(6) of the Jamaican Constitution, which provides:

“Every person who is charged with a criminal offence –
(c) shall be permitted to defend himself in person or by a legal representative of his own choice.”

The Privy Council concluded that that word “permitted” in Section 20(6)(c) indicated that the State could not prevent the appellant from having counsel of his own choice, but the provision did not “give rise to an absolute right to legal representation which if exercised to the full, could all too easily lead to manipulation and abuse.” Thus, Mr. Robinson could be executed, even though he was unrepresented in the murder trial.

The United Nations Human Rights Committee disagreed with the Privy Council’s approach. The Committee noted that “it is axiomatic that legal assistance be available in capital cases”, and held that this should be so even where the unavailability of private counsel “is to some degree attributable to the author himself” and even if an adjournment of the proceedings is necessary to secure legal assistance to the accused.

In my opinion, the Human Rights Committee correctly placed greater emphasis on the trauma and unfairness inherent in requiring the accused to defend himself personally in a capital case, than upon whatever risk the State may face if an adjournment is offered in particular cases. The local Privy Council accepted the recommendation of the Human Rights Committee and Mr. Robinson’s sentence was commuted to life imprisonment. The case for accepting the recommendation of the Human Rights Committee in this case is easily made.

The case of Robinson, where a recommendation is readily acceptable, may be contrasted with the situation concerning corporal punishment for children. Most Jamaicans, and other Commonwealth Caribbean nationals, believe that corporal punishment for children should be permitted in some circumstances. In a recent study, Joan Durrant found that 96% of Caribbean nationals surveyed believe corporal punishment reflects parents’ “caring enough to take the time to train the children properly”, 71% generally approve of parental corporal punishment, and 69% believe that corporal punishment is a good and normal part of raising children.

On the other hand, various human right agencies within the United Nations, including the Human Rights Committee, the Committee on the Rights of the Child, the Committee against Torture, and the Committee on Economic, Social and Cultural Rights maintain that corporal punishment for children is contrary to the inherent dignity of the child, and to the terms of treaties such as the Convention on the Rights of the Child and the ICCPR. Thus, there is a significant gap between the Caribbean cultural perspective on corporal punishment and the recommendations of the United Nations.

In these circumstances, there is a strong case to be made that recommendations from the United Nations are only recommendations, and that it would be culturally inappropriate to apply them without qualification in Jamaica. Some human rights standards may well be universally applicable, but where a human rights body applies a broad interpretation to a treaty provision, and thus adds new meaning to the provision, that body should understand that not all countries will accept its interpretation.

Conclusion

This discussion has considered some of the factors that influence the human rights project in Jamaica. In recent years, notions of human rights have come to play an increasingly important role in our lives. This is as it should be, for we exist in a society governed by laws, and we proceed from the premise that the authority that the State holds over individuals is derived from those laws. The Constitution of Jamaica plays a prominent role in restricting State abuse, and must naturally be the starting-point for any assessment of human rights safeguards in the country. Chapter III of the Constitution, which sets out a list of our fundamental rights and duties largely reflects the consensus in Western societies the scope of basic human rights.

But the Constitution is vulnerable to criticism on various counts. To be sure, it is not deeply problematic in the way that some commentators suggest, but it should be reformed to ensure that its language more fully reflects the modern aims, aspirations and values of the Jamaican people. In its reformulation, we need to be careful to balance the rights of the individual versus the rights of the wider society, but the actual language and structure of the revised Constitution should show more clearly the significance that the State attaches to individual rights.

In this regard, the savings clause in the Constitution, which preserves pre-independence laws from challenges based on principle, has now outlived its usefulness and needs to be removed. And, at the same time, the language of the revised Constitution must make it abundantly clear that unfair discrimination on grounds of gender is contrary to basic principles of Jamaican society.

With respect to some issues, the Constitution may speak with clarity and yet some agents of the State disregard its terms. Some of these issues arise directly out of Jamaica’s high crime rate and the country’s penchant for deadly violence. There is widespread disrespect for the most basic right – the right to life – and this manifests itself not only in the monstrously high murder rate, but also in the disproportionate number of civilians killed by the police. A pastor has recently said “we too thief”, and to this I would humbly add “we too murderous”.

As the society continues its search for solutions to the problem of murder, we should be careful that we combat the tendency for agents of the State do not adopt the methods of those who would destroy the society. This is not a statement of hypocrisy; it is an acknowledgement that those who believe in law and order have principles; we are different from murderers, and we must not embrace their methods. We value the right to life, and so, we support police killings only in circumstances of self-defence.

In the assessment of human rights, there are various technical issues that do not normally come to the fore in general reviews of the situation in Jamaica. Among other things, we need to remain mindful of the possibility that the approach taken to the death penalty in Jamaica has cast a long shadow on the country’s human rights terrain. Although some countries argue to the contrary, Jamaica has maintained with some force that the death penalty is not in itself inconsistent with International Law. It is important to note, however, that because Jamaica retains the death penalty, the country has remained subject to greater scrutiny on human rights questions than others. The actions that Jamaica has had to take in its attempt to satisfy the terms of the Pratt and Morgan decision, in particular, have also prompted the view – not fully sustained -- that Jamaica is not fully committed to human rights principles.

Finally, various issues concerning the interplay between international law and national law arise in the assessment of Jamaica’s human rights situation. International law and domestic law constitute separate spheres of law, but they overlap in significant ways. In the area of human rights there is a tendency to argue that certain ideas prevalent at the international level are automatically part of local law. The matter is, however, more complex than that. It is also to be remembered that international human rights bodies make recommendations and do not present binding decisions. This is significant: recommendations allow the State some leeway in its consideration of whether to adopt an external approach that may, or may not, be consistent with domestic public policy.

Alfred Sangster breaks ranks

2008-01-30T16:22:00.001-05:00

As has been reported in the news, Dr. Alfred Sangster has publicly defended the PM's dismissal of the Coke-chaired PSC, of which he was a member. According to Dr. Sangster, the PSC's failure to reinstate Lackston Robinson constitutes misconduct that warrants dismissal. He also pointed the failure of the the PSC to review its recommendation of Stephen Vasciannie (at Dr. Sangster's urging) after the Stephen Vasciannie's 'dead cat' reference came to his (Dr. Sangster's) attention.

Dr. Sangster's public utterances coincide with the commencement of litigation by his erstwhile colleagues to challenge the dismissal.

Dr. Sangster's pronouncements are disturbing, and indeed execrable. Firstly, he is factually wrong about the PSC's supposed failure to reinstate Lackston Robinson, given that the Justice Jones never ordered Mr. Robinson's reinstatement, when he quashed the PSC decision to retire Robinson in the public interest. Dr. Sangster has clearly acquainted himself with the judgment of Justice Jones, before attacking his former colleagues. Dr. Sangster has correctly pointed out that he was not a member of the PSC that was the subject of Justice Jones' judgment (the PSC was at the time made up of Daisy Coke, Pauline Findlay, Mike Fennell, Edwin Jones, and George Philip; Sangster replaced Philip when he died in April 2007)). One might have thought that pride alone might have impelled Dr. Sangster to protest his dismissal at least on this ground, given that he was not a member of this 'misbehaving' PSC.

One has to wonder why Dr. Sangster chose to speak at this time, or at all. While it is his prerogative not to join in the litigation, I see no rational or ethical basis for belatedly excoriating his colleagues, when he well knows that the matter is under litigation. I can only suspect that he was intent on prejudicing the minds of judges who may later be assigned to adjudicate on the claim of Daisy Coke, et al.

I can hardly believe shame has not prevented him from raising the 'dead cat' reference. He clearly stated that his concern arose only after the PSC had signed off on the recommendation of Stephen Vasciannie. The essential implication of Dr. Sangster's thinking is that Stephen Vasciannie should have been denied selection as SG, not because of lack of qualifications, but for a public criticism of Bruce Golding made in 2002! For me, if this is Sangster's mode of thinking, then he certainly had no place on the PSC. Sangster speculated that this commentary could create strained relations between the Stephen Vasciannie (as SG) and the Prime Minister. Naturally, of course, Dr. Sangster did not require any evidence to substantiate his position. Sangster reflects the very worst in Jamaican governance: the privileging of personality over principle, and not to mention, suss over hard evidence; loyalty to expedience over ethicality; and cowardice over conscience.

I have submitted a letter to the press on the issue, which hopefully will be published. I discussed the matter on the Breakfast Club yesterday morning with Trevor Munroe and Peter Espeut. Apparently Dr. Sangster had been invited on the programme, but declined.

Sangster should be ashamed of himself.

Daisy Coke, Pauline Findlay, Mike Fennell & Edwin Jones sue the PM

2008-01-28T19:46:00.001-05:00

Four of the five PSC members who were dismissed by Prime Minister Bruce Golding have now filed suit in the Supreme Court to challenge the legality of their dismissals. This was reported today by RJR: http://www.radiojamaica.com/content/view/5012/26/

"New" PSC has started advertising for SG

2008-01-27T22:39:00.000-05:00

According to an RJR report today, the "new" PSC advertised today for applications for the post of Solicitor General. http://www.radiojamaica.com/content/view/4985/26/

The mutilation of the rule of law continues.

Response to Laurie Ventour's letter of the day of Sunday, January 20, 2008

2008-01-27T22:35:00.000-05:00

Laurie (L.L.) Ventour had a letter in the Sunday Gleaner of January 20, 2008, in which he blamed the PSC for the debacle involving Stephen Vasciannie. I had sent a response to the Gleaner which so far has not been published. I set it out below for your information.

January 21, 2008

Dear Editor,

I write in response to L.L. Ventour's letter of the day which appeared in the Sunday Gleaner of January 20, 2008.

Mr. Ventour blames the Public Service Commission for the imbroglio surrounding its selection of Prof. Stephen Vasciannie as Solicitor General. According to Mr. Ventour, there were "more than four 'strikes' against the then PSC, including breach of the spirit of convention - to offer their resignation en masse on the change of an administration and, in the absence of an appeal against the judgment, the possibility of a charge of contempt of court for their apparent refusal to reinstate an employee, but purporting to transfer him to another post, in what may be seen as clear defiance." According to Mr. Ventour, "No PSC should - nor could - continue in office with such baggage and controversy on its performance" because "It quickly leads to a perceived loss of moral integrity, authority and credibility".

Mr. Ventour's blame, in my view, is entirely misplaced. Firstly, there is no convention of resignations by Service Commissions upon a change of administration. This applies only to statutory bodies. In any event, given the constitutional design of Service Commissions, en bloc resignations would be repugnant to the notion that these bodies are supposed to be independent of political influence. If the political directorate is allowed to reconstitute the Service Commissions at will, then clearly there is no point to having these bodies at all, as they would simply be treated or perceived as rubber stamps for political decisions. If indeed a convention of resignations exists, why then didn’t the members of the Police Service Commission and the Judicial Service Commission resign after the new government took office in September 2007?

Contrary to prevailing public opinion, the PSC was never in contempt of an order of the Supreme Court. The judgment of Mr. Justice Jones quashed the order of the PSC to retire Lackston Robinson from the public service in the public interest. Many laypersons do not understand that the nature of the proceedings before Mr. Justice Jones was judicial review. What this means is that the court was concerned only with the legality of the PSC's decision, which it found to be unlawful. The judge did not expressly order the reinstatement of Mr. Robinson in the public service (or the Attorney General's Chambers in particular) because this would be tantamount to substituting his judgment for that of the PSC. Following the judgment, it was open to the PSC to repeat the process of retiring Mr. Robinson in the public interest, provided that it followed the legally prescribed steps to do so. It was also within the constitutional discretion of the PSC to reassign Mr. Robinson to another post in the public service, which indeed, it attempted to do. It should be emphasized that Mr. Robinson was unlawfully retired from the public service, and not the AG's Chambers, per se. It is therefore quite unfair to accuse the PSC of contempt of court or defiance, for doing precisely what they are lawfully authorized to do.

With due respect to Mr. Ventour, the blame for this imbroglio is attributable entirely to the actions of the Prime Minister. Under Jamaica's constitution, the PSC has the exclusive authority over the selection of the Solicitor General. The Prime Minister chose to disregard the constitutional autonomy of the PSC, later firing the PSC members when they failed to alter their recommendation to suit his political preferences. It is palpably clear that the PSC members would not have been dismissed had they acceded to the PM's wishes.

Finally, I note that Mr. Ventour considered Prof. Vasciannie's 'dead cat' comment in his column to be "intemperate", and that history has ultimately "absolved Mr. Golding in this regard". Mr. Ventour's view betrays a misapprehension of the context in which this metaphor was used. At the time of Prof. Vasciannie's column (September 2002), general elections were due in October 2002. The 'dead cat' metaphor was applied to explain the effect of Bruce Golding's return to the JLP on the PNP's chances of returning to power. In simple language, Prof. Vasciannie was saying that Bruce Golding's return would cause some momentary concern on the part of the PNP, but would not ultimately hurt its chances of returning to power in the October 2002 elections. Given the outcome of the 2002 general elections, I do believe that history has absolved Prof. Vasciannie in this respect.

Yours truly,

O. Hilaire Sobers

Washington, DC

ohilaire@yahoo.com

Press release by A. J. Nicholson, QC on reported plan to advertise post of Solicitor General

2008-01-22T22:12:00.000-05:00

The Opposition spokesman on Justice, A.J. Nicholson, QC, issued a press release today in response to an earlier news report that the position of Solicitor General is to be advertised in two weeks. I already commented on this in a previous post. Mr. Nicholson was interviewed on RJR on "Beyond the Headlines". I was interviewed on the same programme shortly after Mr. Nicholson. It doesn't often happen, but this time, I entirely agree with the sentiments of Mr. Nicholson, as reflected in his press release, which I reproduce below.

NEWS RELEASE

The reported proposal for the position of Solicitor General to be advertised for a new functionary to be appointed threatens to move Jamaica into that group of countries where the provisions of their constitution – the basic law- may be flouted to meet the wishes of the leader of government.
The peoples of those countries have collectively come to rue the day that they first allowed that kind of incursion to take place.

It is not an easy road to turn back from, once it has been taken.

The Jamaican Constitution obliges the governor general to appoint a solicitor general when a recommendation is made to him by the Public Service Commission.

A properly constituted Commission made such a recommendation to the governor general, which for several months he has failed to act upon, in clear breach of the Constitution. This is obviously on the directive of the prime minister, the head of government, again in breach of the Constitution.

The governor general dismissed that Commission, on the directive of the prime minister. The legitimacy of that dismissal remains to be decided by the Supreme Court of Jamaica.

The prime minister then proceeded to have another Public Service Commission appointed, in a manner that clearly brushed aside the process which was negotiated and agreed upon in the Vale Royal Talks. So, the prime minister now has in place a Commission with four of its membership of five, selected directly by him, to recommend the appointment of a solicitor general, who must then be anointed by him, with a compliant governor general standing by.

Other such appointments will undoubtedly be made in the same manner to fill positions in the public service. The prime minister will then effectively be in control of the public service.

If we the people of Jamaica allow this to pass, we will come to rue our inaction. This is inimical to the workings of the system of Westminster style democracy, to which Jamaica and its people still subscribe. It would mark the beginnings of dictatorial rule.

Contact : A.J Nicholson
Opposition Spokesman on Justice
Tel : 941-1209
Date : January 22, 2008

Post of Solicitor General to be advertised (again!)

2008-01-22T13:55:00.000-05:00

According to a news report today from RJR (http://www.radiojamaica.com/content/view/4821/26/), instructions have been issued for the post of Solicitor General to be advertised in the local press in the next 10 days.

Assuming the accuracy of this story, these instructions emanate from the "new" PSC, perhaps acting on the instructions of the government. This step reinforces the utter contempt that the government/"new" PSC has for the rule of law, and the pending judicial review litigation. As far as I am aware, the Coke-led PSC made a selection that was in accordance with the law. On basis therefore, can the Rainford-led PSC ignore the previous recommendation and commence the process of selection anew? If a new SG is selected by the Rainford PSC, what are the legal implications for his/her appointment, if the courts find that the Coke PSC was unlawfully dismissed? Would that not mean that all decisions and processes emenating from the Rainford PSC are inherently null and void?

The government's contempt for due process and the rule of law seems unbridled. This contempt has victimized Stephen Vasciannie, the Coke PSC, and not least of all the people of Jamaica. Lamentably, many Jamaicans are either indifferent to, or actively supportive of the government's contempt for the rule of law, and by extension, its contempt for the very same people. We just don't seem to get it.

My letter appearing in today's Observer entitled "Withdraw partisanship accusation, Ken"

2008-01-22T07:42:00.000-05:00

Here's a letter of mine that appeared in the Observer today repudiating Ken Chaplin's accusation of partisanship on the part of lawyers in the Attorney General's Chambers.

Commentary on Mark Wignall column that appeared in the Sunday Observer of December 02, 2007

2008-01-21T20:06:00.002-05:00

Here is a commentary that I sent to Mark Wignall on a column of his that appeared in the Sunday Observer of December 02, 2007 http://www.jamaicaobserver.com/columns/html/20071201t170000-0500_129967_obs_election_win___but_little_power_.asp.

December 02, 2007

Dear Mark,

A few comments on your column appearing in today's Sunday Observer.

You stated:

The members of the PSC who met on October 2, 2007, were Daisy Coke, Mike Fennel and Pauline Findlay. Others who comprised the interviewing panel were Carlton Davies, cabinet secretary; and John Leiba, president, Bar Association of Jamaica.
According to the Jamaica Constitution, Chapter 10, Section 136, 2 - 'At any meeting of any Commission established by this Constitution a quorum shall be constituted if three members are present. If a quorum is present the Commission shall not be disqualified for the transaction of business by reason of any vacancy among its members and any proceedings of the Commission shall be valid, notwithstanding that some person who was not entitled so to do took part therein.'
I am no lawyer, but something in that section puzzles me. It states that a quorum constitutes three members. No problem with that. What I am at a loss in fathoming is this, 'If a quorum is present the Commission shall not be disqualified by reason of any vacancy among its members...'
Vacancy? Does the constitution mean 'absence'? I cannot see it meaning absence if there is a quorum. If 'vacancy' means that the PSC had recently lost one of its members, how would that bear on a matter or decision which was deliberated/made with a duly constituted quorum? And certainly 'vacany' could never bear any reference to the mental state of any member of the PSC.
But even if the section was making a reference to the three members who formed a quorum making a decision that they needed personnel to assist them in the interviewing process, what is the meaning of, ... any proceedings of the Commission shall be valid notwithstanding that some person who was not entitled to do so took part therein'?
Does this mean that Vasciannie, Foster and Leys could have sat in and deliberated on their own interviews?
I could have sought legal assistance in attempting to clarify the section, but my lawyer friends all speak Swahili while I speak English.
In another part of the Jamaican Constitution, Chapter 9, Part 1, 125, Section 3, the following is stated:
'No person shall be qualified to be appointed as a member of the Public Service Commission if he holds or is acting in any public office other than the office of the Judicial Services Commission or, member of the Police Service Commission.'
Question: Is there some fundamental difference to be drawn in the make-up of the PSC when meeting to discuss everyday business as against conducting interviews? Dr Carlton Davies, cabinet secretary and brother to Dr Omar Davies, recently minister of finance in the PNP government, is not, as far as I know, a member of the JSC or the Police Service Commission. Question: Why was he on the interviewing panel?

Mark, I would've been happy to assist you with interpreting these constitutional provisions, had you asked.

Let me see if I can explain in simple terms. Firstly, it is useful to read all of the constitutional provisions relating to the Public Service Commission, before attempting to interpret a particular section that relates to all Service Commissions established under the constitution. If you look at section 124 (5) of the constitution "vacancy" has a particular meaning would apply to any references to "vacancy" in section 136 (2).

Under section 124 (5), the office of a member of the Public Service Commission becomes "vacant" in certain circumstances, for example: expiry of appointment; resignation; appointment to public office (other than Judicial Service Commission or Police Service Commission) and removal by the Governor General (on the advice of the Prime Minister after consultation with the Leader of the Opposition) for infirmity or misbehaviour.

Note that section 124 (5) provides for a Public Service Commission consisting of a chairman and at least three other members, but not more than five other members. Vacancy, then, does not mean 'absence" The effect of section 136 (2) is to (a) prescribe a quorum for the transaction of the business of a Service Commission (such as the Public Service Commission); and (b) to validate any business transacted by a Service Commission, despite any vacancies (as constitutionally defined) in their overall number.

Let me use an example to illustrate. Let's say that a Commission is made up of four
members, for argument's sake, Daisy Coke (chair), Pauline Findlay, Rex Fennel, and Alfred Sangster. Daisy, Pauline and Alfred meet on October 1 to consider an application for public service position. They adjourn their deliberations until October 15. Rex is absent. On October 8, Alfred is appointed Commissioner of Police.
Upon his appointment, his position on the Public Service Commission immediately becomes vacant. On October 15, Daisy, Pauline, Rex, and Alfred all meet to continue deliberations and to make a decision. Technically, Alfred is no longer a member of the PSC. However, section 136 (2) simply validates the transaction of business of the PSC at their meeting on October 15, notwithstanding that (a) there was a vacancy in their overall number; and (b)
Alfred would've been technically not entitled to participate in their deliberations.

I hope this is clear.

You raised the question of whether there is some fundamental difference to be drawn in the make-up of the PSC when meeting to discuss everyday business as against conducting interviews. You pointed out that Dr Carlton Davies, cabinet secretary is not a member of the Judicial Service Commission or the Police Service Commission. You asked why he was a member of the interviewing panel.

I thought that I had clarified this in earlier emails to you. While it is true that Dr. Davies is not a member of the PSC, it is quite common for Service Commissions to rely on external expertise to evaluate candidates for public office. The critical issue is not whether he participated in the interviewing process, but in the ultimate decision of the PSC. I had previously referred you to the Public Service Regulations which clearly authorize the PSC to rely on a Selection Board in processing applications. I note that you made no reference to this in your column.

It is quite conceivable that Dr. Davies was part of a Selection Board, as indeed, John Leiba, the president of the Jamaican Bar Association. You would be aware the Cabinet Secretary is head of the public service in Jamaica. It seems more than reasonable to expect the PSC to rely on his input in evaluating candidates for public service and making recommendations. It is axiomatic that tribunals like the PSC have to rely on external advice, given that such tribunals will hardly have a monopoly on the expertise or information necessary to make sound decisions. In the same way, ministers of government rely on the advice of technocrats and others in crafting or implementing policy decisions.

You also raised the question of whether the PSC's "exit interview" with Michael Hylton 'coloured the decision made on the SG's appointment'. Once again, Mark, it would be prudent for the PSC to interview the outgoing SG, presumably to get his input on the nature and role of the SG; the qualifications required for the position; and perhaps his view on which candidate best met the qualifications. I would fully expect Michael's views to influence the views of the PSC, but not necessarily in the negative sense that you imply. It certainly would not have been Michael's place to 'direct' the PSC, and given what I personally know of two of the PSC members, such 'directions' would not have been entertained.

Regarding the participation of Pauline Findlay, I had already addressed this in detail. In summary, I repeat my position that Pauline's relationship with Michael Hylton was legally immaterial to her deliberations as a Public Service Commissioner. Further, to the best of my knowledge, the PSC's recommendation of Prof. Vasciannie was unanimous. Even if one imputes bias to the PSC in selecting Vasciannie, it is palpably clear (based on his resume) that any impartial/unbiased tribunal could have come to the same decision. From the perspective of Jamaica's tabloid culture, perhaps Pauline might have been better off not participating in the deliberations. However, having done so, there is, in my view, no sound legal or ethical objection to her participation.

You raise the question of why Vasciannie would want to work with a JLP administration. You refer to his supposed paucity of courtroom experience, mistrust between the SG and the government, his previous "dead cat" criticism of Bruce Golding. You conclude that "For the administration to work effectively it must have some say in those who will be chief legal advisers to the Government."

Firstly, I am not sure that you clearly understand the role and function of a Solicitor General or how a Solicitor General interfaces with the political directorate. The post of Solicitor General in Jamaica and the rest of the Commonwealth Caribbean is akin to a Permanent Secretary of a Ministry. The Solicitor General is essentially the CEO of the Chambers of the Attorney General, responsible for planning, directing, and organizing the work Chambers in accordance with policy prescribed by the Attorney General. While it is true that the Solicitor General must be a lawyer/advisor, it is equally true that the
Solicitor General must also be an administrator. It seems, therefore, that an ideal candidate for the position of SG requires a blend of skills, and not just those of a specialist litigator. The SG is not, and cannot be expected to be an expert in every area of the law that the AG's Chambers deals with. The SG does not rely only upon himself to address difficult areas of law that arise in the courts (or elsewhere), but upon a team of colleagues, which include two Deputy Solicitors General and five divisional directors.

Michael Hylton, a specialist litigator, had no particular expertise in international law. Michael relied on Stephen for this expertise in the AG's Chambers, as one would expect. Similarly, one the assumption that Stephen is 'weak' in litigation experience, he would have available to him experienced litigators like Patrick Foster, QC for advice and input. Just like the PSC, the SG will rely on advisers to discharge his functions.

From a point of view of practicality, it would not be feasible for the Solicitor General to spend most of his time in court. Having been a litigation lawyer myself, it is quite impossible to efficiently combine multiple court-room appearances with the demands of managing, directing and planning the work of a large Chambers of lawyers.
Indeed, in my experience, if one is to look at the management of large law firms, Managing Partners are rarely litigators; or if they are, they jettison much of their litigation practice in order to function as Managing Partners.

It is quite incorrect to refer to characterize the office of Solicitor General as a "chief legal adviser" to the prime minister. It should be noted that the Solicitor General is not the personal lawyer of the Prime Minister or any other political functionary; accordingly, the issue of confidence is neither here nor there. The SG does not generally interface personally with the PM. Most of the SG's interactions (and indeed that of his staff) is with other government ministries/departments, and moreso with permanent functionaries than political ones.

If the Constitution contemplated that the PM should necessarily be comfortable with the PSC's choice of SG, it could have said so, as it suggests in respect of Permanent Secretaries and the Financial Secretary. But it is silent on the point, giving rise to the view that the PM's comfort level is not a decisive factor in the law. From this perspective, any purported discomfort that the PM might have with Vasciannie because of previous history is constitutionally irrelevant.

The relationship of the SG to the government cannot be likened to a conventional relationship between a private lawyer and a client. While a conventional client has freedom to hire and fire his/her lawyer at will, the government has no such freedom outside of the political appointment of the Attorney General. Unlike a conventional client, State bodies do not usually have the privilege of rejecting or ignoring advice given by the Attorney General’s Chambers.

Best regards,

Hilaire

The debate continues with KF on the Attorney General, the constitution, and the rule of law

2008-01-21T14:28:00.001-05:00

The exchange with KF regarding my article on the AG continues. I set out the latest exchange below:

January 21, 2008

Thank you Mr. Sobers,

"For your information, the nature of the proceedings before Mr. Justice Jones was judicial review. In such proceedings, the court is only concerned with the legality of a decision of a public authority, and not the substance of the decision, per se."

Could you tell this to Donald Buchanan and Bert Samuels? Both of them are of the opinion that the dismissal of the former PSC and the appointment of the current PSC can be renderd null and void by an adverse ruling in the Judicial Review the PNP has initiated.

Is it unreasonable for the government's chief legal advisor to ask a government department to revers a decision which has been ruled illegal by a judicial review?

As to your constitutional point. I keep a copy of the constitution close at hand and all section 79 really dose is establish the office of Attorney General. Your whole argument about the Ministry of Justice overseeing appointments within the solicitor general's department would make sense except for the fact that the Minister of Justice and The Attorney General have traditionally been the same person.

Surely you are not saying the Attorney General should have no say in who works within the office of the Solicitor General? If we agree on that point, then what is there to trouble yourself over in the attorney general making use of a complimentary set of resources (The Ministry of Justice) to run the recruitment process?

Finally. You still have not even challenged my original point. I.e. How come you have taken on the minister's decision without either A) challenging the existence of the civil service regulations that she claimed requires that decision, B) Dealing with the matter of constitutionally invalid regulations that have existed unchanged for decades and C) a government law office which saw that lacuna and just worked against the regulations, rather than amending the regulations.

MY REPLY

Again, you seem not fully understand what I am saying.

With respect to the litigation pending initiated by the Leader of the Opposition, Bert Samuels is correct. In the same way that Justice Jones decision had the effect of nullifying the PSC's decision to retire Lackston Robinson in the public interest, the court could similarly nullify the dismissals of the PSC members, and as consequence the appointments of the new PSC members. You will recall that the essential purpose of judicial review is to test the legality of decisions made by public authorities or functionaries. Among the remedies available to the court in this regard, is an order certiorari which serves to quash an unlawful decision. An order of certiorari is usually accompanied by a declaration by the court that a particular decision was unlawful and therefore null and void. If the court finds that the relevant decision of the PM was unlawful, then it follows that the original PSC members would, in law, remain members of the PSC. Ineluctably, the subsequent appointments of the new PSC members would ipso facto be null and void.

I am not sure I understand your question about whether it is "unreasonable for the government's chief legal advisor to reverse a decision which has been ruled illegal by judicial review". As I explained to you before, there is no legal basis for the AG to either contend that the PSC was in contempt of Justice Jones' order or to direct that a public service officer be reinstated. Reinstatement, and for that matter, and other decisions relating to appointment, promotion, or transfer of public service officers, fall exclusively within the discretion of the PSC, and not political functionaries.

Section 79 of the constitution is fundamental to my entire analysis. You imply that my analysis makes no sense, given that tradition of combining the roles of AG and Justice Minister. As a matter of law, 'tradition' cannot supplant law, and in this case, the supreme law of Jamaica. The combination of roles cannot give the holder more power and authority than is accorded by the constitution. What you are implicitly arguing is that the holder of these roles is above the rule of law.

Regarding your point on whether the AG should have say on staffing issues in the Chambers, I again revert to one of my key constitutional points: public service appointments are constitutionally insulated from political interference. While there might, on occasion, be informal consultations with political functionaries, such consultations are not mandatory, and ultimately, political functionaries have no say in this decision-making process. The regulations of the PSC define a role for permanent heads of government departments (such as Permanent Secretaries and the Solicitor General), in making personnel decisions. No such role is prescribed for political heads (such as cabinet ministers and the Attorney General). The AG in this case, has done far more than insist on having the Justice Ministry oversee personnel matters in the AG's Chambers. The AG has insisted on exercising her own discretion in personnel matters, which is clearly untenable in law.

With respect to your final point, I believe I dealt with this in the first paragraph of my previous email. Again, I ask whether you have seen these so-called regulations for yourself. You have done nothing more than repeat the AG's claims, without more. Surely, since you are the one challenging my legal analysis, the onus is on you to establish that the regulations support the AG's conduct, as you seem to claim. I don't know of any "constitutionally invalid" regulations. The only authority competent to make a conclusive determination in this regard is the Supreme Court of Jamaica. If you know of any decision of the Court in this regard, by all means, please cite it. Certainly, the AG is not the final authority on the interpretation or validity of constitutional or other legal instruments. If indeed the regulations were invalid, as you say, there would be no basis for amending them, as such regulations would be inherently unlawful, and therefore null and void.

Best regards,

OHS

A reader takes me to task on my article on the AG

2008-01-20T11:40:00.000-05:00

A reader (whom I shall refer to as "KF") has taken me to task on the "logic" of my article entitled TThe Attorney General, the constitution, and the rule of law.

I have reproduced KF's comments below, together with my response.

Reader's comments

To: Mr. Sobers,
CC: Editor, Jamaica Observer,

I am very disappointed with the quality of arguments you presented in your column of January 19.

In that article you claim to have herd Mrs. Lightbourne's interview on Nationwide Radio where she asserted that the ministry of justice must be involved in the appointment of staff to the Solicitor General's department. Somehow you make the logical leap to declare that this is indicative of a disregard on her part for the rule of law. An assertion which could only logically be made if you also mount a challenge to her assertion that the arrangement she ordered implemented is outlined in the current regulations governing the solicitor general's department. A set of regulations which predate the system she has terminated.

So let me spell it out. If a minister finds a department acting in breach of the law and orders that they return to the procedures specified in the law (civil service regulations have the force of law within government departments), that minister is attacking the rule of law? Very strange logic.

There is a second point in your article that I wish to challenge on similar grounds. You assert that when she ordered the Solicitor General's department to implement the court ordered reinstatement of Mr. Lackston Robinson, that also flies in the face of the rule of law. As I understand the law, when a court orders you to do something "immediately", the only way to legally avoid doing it immediately is to get that court to stay it's order pending your appeal or to take it to the court of appeal immediately and get them to suspend the order.

If neither was attempted or the request for a stay was denied, there is no choice. Contempt of court isn't "rude". It is a crime. A private citizen who violates a court order in the way the PSC did, would likely be thrown in jail.

MY REPLY

I don't follow your reasoning at all. If you re-read my article, you will note that I grounded my arguments in law, with particular regard to section 79 of the Constitution. I don't know if you are a lawyer, but I would suggest that if you wish to counter my arguments, you cannot logically do so by simply repeating the assertions of the Attorney General regarding "regulations" without more. Do you know what regulations she is referring to? Have you seen them for yourself? You have yourself leapt to the conclusion that the AG was acting within the law without offering any verifiable data to support your conclusion. Might I repeat that the constitution of Jamaica, which is the supreme law of the land, plainly excludes political functionaries from interfering with the management of public service personnel. This constitutional design is reflected in the existence of three Service Commissions, that are constitutionally mandates to make selections for either the public service, police, or judiciary without interference from the political directorate. There are only a handful of top public service selections that are made directly by the Prime Minister. These include the Chief Justice, President of the Court of Appeal and the Director of Public Prosecutions.

With respect to your second point, it seems that you have not read the judgment of Mr. Justice Jones. For that matter you do not appear to understand the legal implications of this judgment. It is this judgment that the Attorney General relies on to ground her directive to reinstate Mr. Robinson. If you read the judgment, you will note that nowhere in the judgment is there any order for reinstatement of Mr. Robinson either in the public service generally or in the AG's Chambers in particular. Accordingly, contrary to the popular myth, the PSC was not, and could not legally be considered to be in contempt of court. For your information, the nature of the proceedings before Mr. Justice Jones was judicial review. In such proceedings, the court is only concerned with the legality of a decision of a public authority, and not the substance of the decision, per se. The court only has jurisdiction to pronounce on the legality of the decision, not to substitute its own judgment for that of the public authority in question. Accordingly, Mr. Justice Jones would hardly have directed Mr. Robinson to be reinstated as this was a matter exclusively within the province of the Public Service Commission. It might interest you to know that following the judgment of Justice Jones, it was legally open to the PSC to again retire Mr. Robinson in the public service, provided it did so in accordance with the procedures laid down by law.

If you are interested in reading relevant material that elucidates what I have set out above, I would be happy to provide it.

Best regards,

OHS

Response from a reader to my article in today's Observer

2008-01-19T13:15:00.001-05:00

I had a response to my article on the AG, which the sender has kindly allowed me to share with you anonymously. The response is extremely instructive on the attitudes of successive governments to justice, and criminal justice in particular.

Email of January 19, 2008 from a reader

I am happy you wrote this article because as I understand it the AG's staff is very disgruntled and for too long in the Ministry of Justice the laws have been ignored and staff treated in the most unjust manner thinkable.

You may have noticed sometime last year when vacancies for Clerks of the Courts were being advertised, included in the job description of the Clerk was the duty to contact witnesses. Whereas (as a former prosecutor) I chose to do so because of the dishonesty of the police, it is not the DUTY of the Clerk. It is the duty of the police. Having to call all witness wastes valuable time that could be best spent properly preparing for trial, soemthing the Jamaican prosecutor does not have the benefit of. The Minister of Justice (present and past) and the the Permanent Secretary are merely paying lip service to justice. While they are busy "majoring in the minor" crime is on the increase because of the inexperience of the prosecutors, the lack of resources, lack of time to properly prepare for each case and the volume of work to be prepared each night! Many a prosecutor at the DPP's office today lament the fact that they want more time to prepare but how can they when the roster has them in court "back to back?"

The attitude of the current Permanent Secretary towards Legal Officers in the Ministry of Justice is summed up in her comment at a Prosecutor's seminar some 2-3 years ago "Lawyers are a dime a dozen." Consequently the people of Jamaica are receiving "dime a dozen justice"!

Before I resigned from the DPP's office one IMPORTANT issue for determination (which I am advised) recently resurfaced was the need to have Crown Counsel sign a register!

Somehow I blame the Legal Officers for the treatment meted out to them. The fear of being penalised has caused them to forget they are adults first of all and COUNSEL!!!! I recall telling the P.S. at a meeting where she said she intended to have Crown Counsel sign an attendance register "Madam P.S. while you contemplate introducing the attendance register, kindly contemplate my overtime payment for the preparation I do every morning and evening before and after court weekends included, because if you introduce the attendance register I certainly will not be reading any files at home!" The room full of prosecutors remained silent. No one wants to stand up for their own rights but I do believe that when respected counsel comments on the issues from a legal standpoint it is appreciated.

Ken Chaplin's column of January 15, 2008

2008-01-19T09:52:00.000-05:00

Ken Chaplin had a column earlier this week on January 15, 2008, that did little more than compound his earlier misrepresentation of the issues concerning the PSC and the AG's Chambers. http://www.jamaicaobserver.com/columns/html/20080114T190000-0500_131395_OBS_WHAT_S_GOING_ON_IN_AG_S_DEPT__.asp

For me, it is quite sad to see a journalist of Ken Chaplin's reputation and experience deliberately choosing misinformation and distortion over facts and analysis. He cannot claim ignorance; certainly I have been at pains to write him twice to point out his errors of fact, law, and logic. I can only infer that Ken Chaplin has an agenda that excludes any reference to 'inconvenient truths'.

Happily, D.S. Morgan has firmly rebutted Chaplin's latest attack on the lawyers of the AG's Chambers.

A week or two ago, the Faqurharson Institute led by Frank Phipps and Ken Jones, called for an inquiry into the operations of the AG's Chambers. Much of what they have publicly represented appears to be reflected in Chaplin's articles. Much as I am not generally given to conspiracy theories, I wonder whether Chaplin is simply the mouthpiece of the Farquharson Institute. I spoke with Chaplin briefly last week, when I faxed him my note of January 10. His first question to me was whether I was "holding brief" for the PSC or Stephen Vasciannie or both. That question, in retrospect, appears to have been quite autobiographical. Despite my record of taking principled positions on public issues, Ken's starting assumption was that I am representing a particular interest, rather than simply standing up for principle. Clearly, if that is his modus operandi, then I can understand his difficulty in understanding mine.

Regrettably, Ken Chaplin's views (and indeed those of the Farq Institute) have gained some traction in public discourse. This is hardly surprising, given the general apathy to critical thinking.

Strange 'official' by D. S. Morgan

2008-01-19T09:31:00.001-05:00

Here is a great letter by D.S. Morgan in today's Observer taking on Ken Chaplin's last column appearing in the Observer of January 15, 2008.
Please click on the following link to read the item:

http://activepaper.olivesoftware.com/Repository/ml.asp?Ref=Sk1PLzIwMDgvMDEvMTkjQXIwMTIwMQ==&Mode=Gif&Locale=english-skin-custom
Comment: Response by D.S. Morgan to Ken Chaplin's latest article.

The Attorney General, the constitution, and the rule of law

2008-01-19T09:02:00.001-05:00

Here is the E-paper version of the article
Please click on the following link to read the item:

http://activepaper.olivesoftware.com/Repository/ml.asp?Ref=Sk1PLzIwMDgvMDEvMTkjQXIwMTIwMA==&Mode=Gif&Locale=english-skin-custom
Comment: Article published in the Observer of January 19, 2008.

Article published in the Observer -Jan 19, 2008

2008-01-19T08:34:00.001-05:00

I have an article entitled The Attorney General, the constitution and the rule of law, which appears in the Observer

Here is the link:

http://www.jamaicaobserver.com/columns/
html/20080118T200000-0500_131524_OBS_THE_ATTORNEY_GENERAL__
THE_CONSTITUTION__AND_THE_RULE_OF_LAW.asp

More litigation by PM 2

2008-01-19T08:29:00.000-05:00

The Observer has reported today on the appeals brought by the PM.

More litigation by PM

2008-01-18T22:49:00.000-05:00

I heard on a radio report today that the Prime Minister has taken steps to appeal decisions made by Supreme Court judges Kay Beckford and Donald McIntosh with respect to current judicial review proceedings initiated by the Leader of the Opposition. I am expect that more details will be forthcoming shortly. I understand that the PM is appealing the decision of Justice Beckford to grant leave to the Leader of the Opposition to grant leave to challenge the PM's recommendation to dismiss the PSC before the Supreme Court. The PM has apparently also appealed the decision of Mr. Justice McIntosh to grant the Leader of the Opposition extra time to file certain documents with respect to the pending judicial review proceedings. When I have more information, I will post it.

Commentary on Justice Jones' judgment

2008-01-14T18:48:00.001-05:00

The judgment of Mr. Justice Jones has been the subject of much discussion in the wake of the firing of the Public Service Commission. Unfortunately, much of the discourse has not been grounded in a clear understanding of what the judgment was about. Some, including the Attorney General, have declared that the judgment had the effect of reinstating Lackston Robinson. This is not so. It has also been asserted by others (including the Prime Minister and the Attorney General) that the Public Service Commission acted in contempt of the judgment in failing to reinstate Mr. Robinson in the Attorney General's Chambers. Again, this is not so.

What really was the judgment about?

First of all, the nature of the proceedings before Justice Jones was judicial review. For laypersons, judicial review is a means by which the Supreme Court considers decisions made by public authorities or functionaries like the Public Service Commission to determine whether such decisions were made in conformity with the law. Judicial review is not the same thing as an appeal,where the appellate tribunal has the power to substitute its decision for the decision that it is considering. In judicial review proceedings, the court cannot substitute its own judgment for that of that tribunal it is reviewing. This may seem a bit confusing to the layperson, but read on, and hopefully it will become clearer. In this particular case, the court could not decide that Mr. Robinson should or should not be retired in the public interest. It could only decide on whether the decision taken by the Public Service Commission took all the correct legal steps in taking the decision it made.

If the court finds that the decision taken was wrong in law, the court can quash the decision. This is essentially a finding that the decision is unlawful and of no effect.

Background

The background to the judicial proceedings before Justice Jones is this:

1. Lackston Robinson, a member of the Attorney General's Chambers had acted as Deputy Solicitor General for a year, when he was reverted to his substantive position of Divisional Director. He was reverted to his substantive position in late 2001.

2. In April 2002, Mr. Robinson initiated judicial review proceedings to challenge this decision to revert him to his substantive position.

3. In the same month/year, the Permanent Secretary in the Ministry of Justice directed Mr. Robinson to go on vacation leave. The PS gave no reasons for sending Mr. Robinson to go on leave, but it later emerged that she had done so because of the tension and discomfort generated in the AG's Chambers because of the pending litigation.

4. Mr. Robinson promptly initiated judicial review proceedings against the Permanent Secretary to challenge her decision to send him on leave.

5. In March 2003, the Public Service Commission took the decision to retire Mr. Robinson in the "public interest", as provided for under the Public Service Regulations. Mr. Robinson again initiated judicial review proceedings to challenge the decision of the Public Service Commission to retire him in the public interest.

The judicial review proceedings with respect to the Permanent Secretary's decision and the PSC's decision were consolidated and heard at the same time before Justice Jones.

Issues

According to Justice Jones, the issues for considerations were:

i) whether the Permanent Secretary improperly exercised her power (under relevant Staff Orders/Rules) to direct that Mr. Robinson proceed on vacation leave, and whether such a decision was ultra vires, and a nullity;

ii) whether the Public Service Commission acted unlawfully in breach of the Public Service Regulations and of natural justice in recommending to the Governor General that Mr. Robinson should be prematurely retired from the Public Service and,if so, whether the decision of the Public Service Commission is ultra vires and a nullity.

Ruling

The judge ultimately ruled that both decisions were unlawful (ultra vires). By extension, the court also held that the Governor General's decision to retire Mr. Robinson in the public interest was also unlawful. Both decisions were quashed by the court (the technical legal term for this is certiorari).

The court also granted Mr. Robinson and order that "damages for loss of salary and allowances be assessed on a date to be fixed by the Registrar of the Supreme Court."

It should be carefully noted that the court did not order the reinstatement of Lackston Robinson either to the public service in general, or to the Attorney General's Chambers in particular.

Commentary

1. This judgment was used by the Prime Minister as one of the grounds for dismissing the PSC for "misbehaviour". According to the Prime Minister's press release (appearing on the JIS website on December 14, 2007):

Mr. Golding said the blatant disregard for procedural fairness and natural justice, demonstrated by the Commission, was the subject of scathing comments by the Supreme Court earlier this year. Mr. Golding said that based on this, it would have been the honourable thing for members of the Commission to have tendered their resignations en bloc. Instead, Mr. Golding noted that the Commission had persisted in its vindictiveness by contriving to circumvent and frustrate the decision of the Court. This has again landed the Commission before the Court for failure to abide by the decision of the Court...

In his review of the PSC's conduct, Justice Jones said:

"...the decision of the Public Service Commission to retire [Mr. Robinson] is in excess of jurisdiction and illegal";[page 35].

This is the customary language of the courts when quashing decisions of public authorities of functionaries. Public authorities and functionaries are regularly the subject of adverse judicial reviews without any concomitant implication that they have been guilty of "misbehaviour". Judges, for example, are frequently reversed on appeal. Sometimes the comments of the appellate courts are quite scathing; however, this has never been taken as indicative of 'misbehaviour' warranting the dismissal of the judges who have been reversed.

In my view, the judge was far more scathing in his review of the Permanent Secretary's decision, when he remarked that her decision was "a striking example of an abuse of power." [page 22] It seems to me that if there is ground for dismissing the PSC, there is even stronger ground for dismissing the Permanent Secretary.

The PM's indictment of the PSC for "contriving to circumvent and frustrate the decision of the Court", is entirely without legal foundation. Firstly, there was no obligation on the PSC to reinstate Mr. Robinson. The only tangible relief ordered by the court was damages for loss of salary. Secondly, it was open to the PSC to exercise its constitutional power to still retire Mr. Robinson in the public interest, provided that it acted in accordance with the law (in this case, the PSC only has power to retire a public officer in the public interest if so recommended by the head of department of the public officer in question; in Lackston Robinson's case, the PSC had omitted to get the recommendation of the Solicitor General before retiring Mr. Robinson). In other words, the PSC could have simply repeated the process, but ensured that it followed all of the legal steps required.

Rather than flout the judgment of Justice Jones, the PSC took steps to reinstate Lackston Robinson in the public service, something that the PSC was not constitutionally or legally obliged to do. The PSC attempted to transfer him to another position in the public service (Tax Dept), which has now provoked another round of litigation by Lackston Robinson. It is important to note that the PSC does have the constitutional authority to transfer public service officers.

2. The PSC members sued by Lackston Robinson were Daisy Coke, Michael Fennel, Edwin Jones, Pauline Findlay, and the late George Phillip. I understand that Alfred Sangster replaced George Phillip, when the latter died in April 2007. Notwithstanding that Alfred Sangster was not a member of the PSC, nor a party to the decision that was quashed by Mr. Justice Jones, he was still fired by the PM for misbehaviour. Given the foregoing, on what legal or rational basis could the PM assert that the judgment should have precipitated the en bloc resignations of all of the PSC members, including Dr. Sangster??

In conclusion, I reaffirm that:

a) the judgment of Mr. Justice Jones is nothing out of the ordinary; it represents a routine quashing of a decision that a public authority took that was ultra vires or in breach of the law;

b) nothing from the judgment can reasonably be interpreted as ordering the reinstatement of Lackston Robinson in the public service generally or the AG's Chambers in particular;

c) the PSC has not acted in contempt of the judgment, and there is nothing in the judgment itself that can reasonably ground a charge of constitutional misbehaviour.

Judgment of Mr. Justice Jones quashing decision of the PSC to retire Lackston Robinson in the public interest

2008-01-14T14:06:00.001-05:00

The judgment of Mr. Justice Jones quashing the decision Public Service Commission to retire Lackston Robinson in the public interest was one of the grounds relied on by the Prime Minister to fire the PSC. Many have not had access to the judgment, so I reproduce it in full here. It is also available at: http://www.scribd.com/doc/1018302/Judgment-of-Mr-Justice-JonesDocument.

Judgment of Mr. Justice Jones in matter of R v Permanent Secretary exparte Lackston Robinson and Members of the Public Service Commission

2008-01-14T13:15:00.000-05:00

The judgment of Mr. Justice Jones quashing the decision of the Permanent Secretary of the Ministry of Justice/Public Service Commission to retire Lackston Robinson in the public interest was one of the grounds relied on by the Prime Minister to fire the PSC. Many have not had access to the judgment, so I reproduce it in full here.

Privy Council decision touching on the issue of reinstatement of unlawfully dismissed public service officer

2008-01-13T13:56:00.001-05:00

I am grateful to a colleague for bringing to my attention the Privy Council decision of Astley McLaughlin v Governor of Cayman Islands. This decision was delivered in July 2007. I have added to the link to this decision under Useful links. In summary, the Privy Council held that it was reasonable for the Court of Appeal of the Cayman Islands to decline to order reinstatement of Dr. Astley McLaughlin, a government employee who had been wrongly dismissed. This case is relevant to the litigation now being pursued by Lackston Robinson to be reinstated in the Attorney General's Department of Jamaica. Among the reasons cited by the Prime Minister for firing the Public Service Commission was it's alleged failure to reinstate Lackston Robinson following the Supreme Court's quashing of the PSC's decision to retire Lackston in the public interest. I set out some relevant extracts from the McLaughlin case below.

In 1998, Dr. McLaughlin was terminated from his position in the government service of the Cayman Islands. The Courts ultimately held that his dismissal was unlawful, because of a failure on the part of the Governor to observe certain legal procedures, including natural justice. Dr. McLaughlin also petitioned the courts to be reinstated to the office which he held prior to the dismissal, or to "an alternative suitable office, with full back pay and benefits, including seniority for pension and other purposes>"

The Court of Appeal of the Cayman Islands in addressing the issue of reinstatement, held as follows:

The appellant has sought relief that he be reinstated in the office which he held at the time of his retirement. Mr Hall-Jones submitted that courts in judicial review proceedings are loath to order the reinstatement of employees, as such an order borders on the usurpation of the powers of the decision maker, and because of the practical problems which such an order would present. For this proposition he relied on Lewis, Judicial Remedies in Public Law, 2nd ed., para 11-021, (2000). The appellant has not been in the public service for approximately four years. We have no knowledge of the state of the requirements of the public service for personnel and in what capacities, and, for no other reason, we do not consider reinstatement as an appropriate remedy.

At paragraph 18 of its judgment, the Privy Council endorsed the Court of Appeal's approach, holding that:

It was reasonable for the first Court of Appeal to decline to order that Dr McLaughlin be restored, after a delay of nearly four years, to the specific office he had held in December 1998.

Ultimately, the Privy Council held that Dr. McLaughlin was entitled to a proper assessment of damages from the date of the unlawful termination. [The Privy Council otherwise overturned the decision of the Court of Appeal, because of an error of law which is not germane to the question of reinstatement].

Chronology of PSC/Vasciannie issue to January 12, 2008

2008-01-12T12:27:00.000-05:00

A very diligent friend of mine has compiled a superb chronology of events surrounding the PSC/Vasciannie issue, which I share with you.

Sept. 3, 2007 General Election held in Jamaica, leading to a change of government.

Oct. 2, 2007 The Public Service Commission interviews three candidates for the post of Solicitor General (Stephen Vasciannie, Patrick Foster and Douglas Leys). The members of the interviewing panel are Daisy Coke O.J., Mike Fennell O.J., Pauline Findlay, John Leiba (President of the Jamaica Bar Association) and Carlton Davis O.J. (Cabinet Secretary). The members of the Public Service Commission who do not take part in the interviewing process are Edwin Jones O.J. and Alfred Sangster O.J. Later in October, there are unconfirmed reports that the Commission recommends Stephen Vasciannie for the post and sends their recommendation to the Governor General of Jamaica, Sir Kenneth Hall. There are also reports that Attorney General Dorothy Lightbourne objects to Vasciannie’s nomination because, she says, he is not a seasoned litigator.

Oct. 31, 2007 Michael Hylton’s resignation as Solicitor General takes effect. After a few days, Patrick Foster is asked by the Public Service Commission to act as Solicitor General, and he accepts.

Nov. 22, 2007 The Gleaner publishes an editorial under the heading “Fundamental issues at stake”, in which it considers the 1975 Australian constitutional crisis and links this to the efforts by Prime Minister Golding to dismiss the Public Service Commission and to the decision of the Opposition to withdraw from the Vale Royal talks. The Gleaner also publishes a letter headed “A mere red herring” by “Amused but getting increasingly cynical”, which argues that Stephen Vasciannie is very qualified for the post of Solicitor General.

Nov. 25, 2007 The Gleaner publishes a letter by Patrick Foster, Acting Solicitor General, which sets out the context of the Trafigura opinion written by Stephen Vasciannie, and argues that the opinion is in accordance with Jamaica’s domestic and international legal obligations.

Nov. 26, 2007 The Gleaner publishes an editorial under the heading “When the Constitution is not a shackle”, in which it urges Stephen Vasciannie not to withdraw his name from the selection process for the post of Solicitor General.

Nov. 26, 2007 Prime Minister Golding indicates that his administration has “serious concerns” about the processes that were used in the selection of Solicitor General to succeed Michael Hylton. This is reported in the Gleaner of November 27. The Gleaner reports that the Prime Minister may be referring to the possibility of bias against Douglas Leys in the interviewing process. In contrast, one of the members of the interviewing panel of the Public Service Commission is reported by the Gleaner of November 27 as saying that Stephen Vasciannie “was at least 30 per cent better than the other candidates” (“Golding breaks silence on PSC selection process”).

Nov. 27, 2007 The Gleaner publishes a letter headed “PM’s role in appointments” by Ken Jones, which responds to an earlier letter from Hugh Smythe and suggests that “the Attorney-General and the Prime Minister should have an overriding influence in the choice of Solicitor-General”.

Nov. 28, 2007 The Gleaner publishes a letter headed “Tangled web in PSC issue” by Karen Morin which notes problems with the approach taken by the Government with respect to the Public Service Commission.

Nov. 29, 2007 The Gleaner publishes a letter headed “Ken Jones is confused” by Hilaire Sobers, which demonstrates problems in Ken Jones’ reasoning concerning the Trafigura opinion and notes that Mr. Jones has difficulties making certain basic distinctions.

Nov. 30, 2007 Attorney General Dorothy Lightbourne discusses aspects of the opinion given by the Attorney General’s Chambers on the Trafigura matter in the Senate, indicating that the opinion was written by Stephen Vasciannie. Former Attorney General A.J. Nicholson criticizes Attorney General Lightbourne for identifying the source of the opinion as inappropriate conduct.

Dec. 2-8, 2007 The Sunday Herald publishes “Vasciannie’s Advice to the DPP” as its Letter of the Week: this letter indicates that the Dutch authorities were not authorized to undertake investigations in Jamaica as the required Ministerial Order had not been made by the then Government of Jamaica.

Dec. 2, 2007 The Sunday Gleaner publishes “Prime Ministerial arbitrariness” by Dawn Ritch, which criticizes David Wong Ken’s view that Stephen Vasciannie should withdraw his application for the post of Solicitor-General; in making her argument, Dawn Ritch relies on points made by Hilaire Sobers on the Breakfast Club.

Dec. 2, 2007 The Sunday Observer reports on proceedings in the Senate under the heading “Opposition objects to Vasciannie’s name being called in Senate: ‘When advice comes from the attorney general, you don’t call the name of the person who gives the advice’ – AJ Nicholson”. The Sunday Observer publishes an article by Mark Wignall entitled “Election win, but little power”, which anticipates various criticisms about the work of the Public Service Commission and its nomination of Stephen Vasciannie. The Sunday Observer also publishes an article by Claude Robinson entitled “A constitutional crisis in the making?”, which emphasizes the importance of relying on the rule of law in the assessing the Government’s actions against the Public Service Commission.

Dec. 4, 2007 The Gleaner publishes “Say something Mr Prime Minister” by Vernon Daley, which argues that Prime Minister Golding needs to clear the air on the Public Service Commission’s recommendation of Stephen Vasciannie and criticizes Attorney General Lightbourne for calling Vasciannie’s name in the Senate in connection with the Trafigura opinion given by the Attorney General’s Chambers. The Gleaner publishes three letters on “The PSC/Vasciannie imbroglio”. One is by Hilaire Sobers on Ken Jones’ article pertaining to the Trafigura opinion showing the false premises relied on by Jones (“Ken Jones’ misrepresentation”); another is by Alecia Sylvester setting out the constitutional rules that pertain to the appointment of the Solicitor-General and stating that it would be “highly irregular, and unconstitutional” for the Prime Minister to seek to dismiss the Public Service Commission in the circumstances (“The law is clear and straight”); and the third is by Matondo Mukulu, supporting the Trafigura opinion and criticizing Ken Jones’ earlier article (“Bad journalism”).

Dec. 11, 2007 The Gleaner publishes “Whatever the PM wants” by Vernon Daley, which argues that the candidate’s competence must be the main criterion for the post of Solicitor General and implicitly criticizes Prime Minister Golding on his approach to the recommendation concerning Stephen Vasciannie.

Dec. 11, 2007 The Observer publishes a report on page one by Erica Virtue under the heading “Lawyer, Public Service Commission at loggerheads again”, concerning Lackston Robinson’s reinstatement.

Dec. 13, 2007 Prime Minister Golding seeks to dismiss all members of the Public Service Commission; letters of termination signed by Governor General Sir Kenneth Hall are delivered. The members of the Commission are: Daisy Coke O.J., Michael Fennell O.J., Edwin Jones O.J., Alfred Sangster O.J., and Pauline Findlay. The letters of termination are delivered hours before the Leader of the Opposition applies to the High Court for an injunction prohibiting the dismissal of the members of the PSC.

Dec. 13, 2007 The Leader of the Opposition is granted leave by the High Court to apply for a judicial review of Prime Minister Golding’s decision to dismiss the members of the PSC.

Dec. 14, 2007 The Gleaner publishes a front page report entitled “Gov’t moves to appoint new Public Service Commission”.

Dec. 14, 2007 The Daily Observer publishes a front page report entitled “FIRED! PSC members dismissed before opposition leader able to file injunction”.

Dec. 14, 2007 The Gleaner publishes, as Letter of the Day, a letter from Canute Thompson entitled “What is the purpose of a judicial review?” about the application of the Leader of the Opposition to seek judicial review of the dismissal of the members of the PSC.

Dec. 14, 2007 The Gleaner publishes a letter headed “Who can fire the PSC?” by Bruce McKnight asking about who has the authority to dismiss members of the PSC if not the Prime Minister.

Dec. 15, 2007 The Observer publishes a letter headed “Such arrogance!” by Orville Brown suggesting that the Public Service Commission should give Prime Minister Golding “a free hand to make new appointments” and asserting that Stephen Vasciannie should withdraw his application to be the Solicitor General.

Dec. 16, 2007 The Sunday Gleaner publishes an editorial entitled “Disturbing PSC manoeuvres” criticizing Prime Minister Golding’s dismissal of the PSC and urging Stephen Vasciannie to seek a judicial declaration on his application to be Solicitor General.

Dec. 16, 2007 The Sunday Gleaner publishes “Fiddling while Rome burns” by Don Robotham, which characterizes the dismissal of the PSC as “utterly scandalous”, mentions that the Governor-General could be discredited by the matter, and criticizes “new human rights groups”.

Dec. 16, 2007 The Sunday Gleaner publishes “Taking the PM to court” by Martin Henry, which supports the submission of the PSC matter to court.

Dec. 16, 2007 The Sunday Gleaner publishes “Things look bleak for Bruce” by Dawn Ritch, which argues that Prime Minister Golding has “plunged the country into a constitutional crisis by his arbitrary and authoritarian abuse of power”.

Dec. 16, 2007 The Sunday Gleaner publishes “Termination illness” by Orville Taylor which criticizes the Government for its actions in respect of the PSC (“The Opposition Leader is crying foul, but whether fowl, fish or dead cat, it stinks”).

Dec. 16, 2007 The Sunday Gleaner publishes “’PM acted in bad faith’”, a report by Edmond Campbell on the dismissal of the PSC.

Dec. 16, 2007 The Sunday Gleaner publishes “Where’s the crime plan?” by Kevin O’Brien Chang in which he lends support to the approach taken by Ken Jones in Jones’ Gleaner article dated December 9, 2007.

Dec. 16, 2007 The Sunday Observer publishes “PSC removal looks like old-style politics” by Claude Robinson, critical of Prime Minister Golding’s treatment of the PSC issue.

Dec. 16-22, 2007 The Sunday Herald publishes an editorial entitled “A constitutional crisis”, which argues that the dismissal of the members of the PSC “has landed the country in a constitutional crisis”.

Dec. 16 –22, 2007 The Sunday Herald publishes the first part of “Prime Ministerial Manipulation” by Garnett Roper .

Dec. 17, 2007 The Daily Observer publishes an editorial entitled “PSC squabble weakens PM’s bid for consensus-building”.

Dec. 17, 2007 The Daily Observer publishes “The cat and the albatross” by Jean Lowrie-Chin arguing that in light of his “dead cat” metaphor Stephen Vasciannie sould have “graciously declined being named as the next solicitor general under a Golding-led government”.

Dec. 18, 2007 The High Court issues an order (per Donald McIntosh J) barring Prime Minister Golding from making recommendations to fill vacancies in the Public Service Commission. This order is made following an ex parte application by the Leader of the Opposition. The Gleaner reports this story on page 1 on December 19, 2007 (“PM barred from filling PSC vacancies”); the Daily Observer’s front page story on the matter is entitled “PM Blocked: Court grants injunction preventing replacement of PSC members”).

Dec. 18, 2007 The Gleaner publishes, as Letter of the Day, a letter headed “What is ‘misbehaviour?’” by Hilaire Sobers which discusses the dismissal of members of the PSC in light of the Privy Council case of Julia Lawrence v AG of Grenada.

Dec. 18, 2007 The Gleaner publishes “The addiction of prime ministerial power” by Vernon Daley, which criticizes the dismissal of members of the PSC in the context of proposals to limit prime ministerial power.

Dec. 18, 2007 The Gleaner publishes a letter headed “Blatant political interference” by Michael Pennycooke, which argues that “(d)espite all the obfuscation and journalistic gymnastics taking place, the sad fact is the PSC members were fired because they did not bow to the political directorate”.

Dec. 18, 2007 The Daily Observer publishes a letter headed “It’s all the fault of the PSC” by Kevin Forge which refers to resignations of members of the PSC in 1976 and 1980.

Dec. 19, 2007 The Daily Gleaner publishes, as Letter of the Day, a letter headed “Contempt for the law” by Jennifer Housen expressing sadness concerning the dismissal of the members of the Public Service Commission and expressing support for retention of appeals to the Privy Council given local political attitudes to law.

Dec. 19, 2007 The Daily Observer publishes an editorial entitled “Does Dr Vasciannie want to be solicitor-general?”, which emphasizes that the Prime Minister and Solicitor General need to trust each other.

Dec. 20, 2007 The Gleaner publishes a letter headed “JCSA’s view of PSC imbroglio” by Wayne Jones, President of the Jamaica Civil Service Association criticizing political interference in the work of the PSC and pointing out that Prime Minister Golding had a cordial meeting with the PSC before the Solicitor General issue arose.

Dec. 20, 2007 The Gleaner publishes a letter headed “Why all this rigmarole?” by Jean-Ann Bartley arguing that Stephen Vasciannie should withdraw his application for the post of Solicitor General.

Dec. 23, 2007 The Sunday Gleaner publishes “Democracy after 100 days” by Robert Buddan criticizing Prime Minister Golding’s interference in the civil service appointments process.

Dec. 23, 2007 The Sunday Observer publishes “Who owns Maxine Henry-Wilson’s constituency office?” by Mark Wignall which indicates that Daisy Coke, Chairperson of the PSC owns the constituency office used by Maxine Henry-Wilson M.P.

Dec. 23, 2007 The Sunday Observer publishes a letter headed “Political influence inevitable” by Michael Pennycooke, arguing that the PSC was dismissed because they refused to bow to the political directorate.

Dec. 23-29, 2007 The Sunday Herald publishes the continuation of an article entitled “Prime Ministerial Manipulation” by Garnett Roper.

Dec. 25, 2007 The Daily Observer publishes “Golding, PSC and the Opposition” by Ken Chaplin, which argues that the Public Service Commission has been politicized and that its recommendation of Stephen Vasciannie was “an imprudent act”.

Dec. 26, 2007 The Gleaner publishes an article entitled “Two bulls can’t reign in the same pen” by the Rev. Cyril Clarke, which argues that the Prime Minister has the last word in the appointment of the Solicitor-General.

Dec. 27, 2007 The Daily Observer publishes “Valuable time wasted on the PSC matter” by Mark Wignall, which quotes a correspondent to the effect that the Public Service Commission and Stephen Vasciannie are at fault in the matter.

Dec. 30, 2007 The Sunday Observer publishes an article entitled “Misbehaviour, the PSC and the Chief Servant” by Hilaire Sobers, which criticizes Prime Minister Golding for disregarding principles of natural justice in dismissing members of the Public Service Commission, demonstrates more generally the weaknesses of the Prime Minister’s approach to the Public Service Commission, and notes that the Governor General has not escaped untarnished in this episode.

Dec. 30, 2007 The Sunday Gleaner publishes a letter headed “Misinterpreting the PM’s role” by Clayton Morgan, which responds to an article entitled “Two bulls can’t reign in the same pen” published in the Gleaner of December 26, 2007. Clayton Morgan’s letter sets out the procedure for appointing the Solicitor General.

Dec. 31, 2007 The Daily Observer publishes a letter headed “PSC issue not about Stephen Vasciannie” by Alecia Sylvester, which argues that Stephen Vasciannie “has displayed great integrity in not withdrawing” from procedure for the selection of Solicitor General, and criticizes various aspects of the Observer editorial published on December 19 (“Does Dr Vasciannie want to be solicitor-general?”).

Jan. 2, 2008 The Daily Observer publishes an editorial entitled “Who will now want to serve on the PSC?” in which it is pointed out that the Prime Minister’s perceived political interference in the Public Service Commission has undermined the Commission’s credibility.

Jan. 3, 2008 The Gleaner publishes a letter headed “’Dead cat’ comment” by Wayne Lumsden, in which Mr. Lumsden points out, in response to the Rev. Devon Dick, that he does not recall “ever reading that Prime Minister Bruce Golding cited the “dead cat” comment” as his reason for objecting to Stephen Vasciannie’s appointment.

Jan. 4, 2008 The Daily Observer publishes letter headed “Vasciannie unsuitable” by Michael Williams.

Jan. 5, 2008 The Daily Observer publishes a front page story entitled “Hold it, PM: Portia urges Bruce not to name new PSC before court hearing”.

Jan. 5, 2008 The Daily Observer publishes a letter headed “Would the PM still cry ‘misbehaviour’…?” by Abe Dabdoub linking the dismissal of the PSC to their decision to nominate Stephen Vasciannie .

Jan. 6-12, 2008 The Sunday Herald publishes a front page story entitled “Cold War! Attorney General and staff at loggerheads over alleged political interference”. The Sunday Herald also publishes an editorial entitled “The PM’s seeming governance crisis” which considers aspects of the PSC dismissal.

Jan. 6, 2008 The Sunday Observer publishes “Implications of Prime Ministerial Tyranny” by Hilaire Sobers concerning the dismissal of the Public Services Commission and the treatment of Stephen Vasciannie.

Jan. 6, 2008 The Sunday Observer publishes a letter headed “Come off that high horse, JLP” by Kenneth Reeves arguing that the naming of a new PSC makes a mockery of the Vale Royal talks.

Jan. 7, 2008 The Daily Observer publishes a letter headed “Will we ever learn?” by Courtney Barnett, which notes that Prime Minister Golding has acted in an unconstitutional manner. The Attorney General, Dorothy Lightbourne is interviewed by Emily Crooks and Naomi Francis on Nationwide News Network (This Morning show).

Jan. 8, 2008 The Governor-General names the members of the new Public Service Commission. They are: Ambassador Don Rainford, Merlyn Brown, Neville Ying, Herbert Lewis and Audrey Hastings.

Jan. 8, 2008 The Gleaner publishes “’Dead cat’ comment and PM Golding” by the Rev. Devon Dick, which argues that Prime Minister Golding “should let sleeping cats lie”. Reverend Dick wrote in response to Wayne Lumsden letter published in the Gleaner on January 3.

Jan. 8, 2008 The Daily Observer publishes a letter headed “Mr. Williams, consult the facts on Stephen Vasciannie” by Hilaire Sobers, which responds to each of the points made by Michael Williams in his letter published in the Daily Observer on January 4. The Daily Observer also publishes “Fight over control of public service” by Ken Chaplin, which repeats accusations that the Public Service Commission has been politicized and suggests that the Attorney General’s Department is now experiencing difficulties “because it has been dominated by PNP activists brought in over the past 18 years”.

Jan. 10, 2008 The High Court grants the Leader of the Opposition a two-week extension during which she may file particulars of the claim for judicial review of the dismissal of members of the Public Service Commission.

Jan. 10, 2008 The Daily Observer publishes an article entitled “PNP says GG could be embarrassed if” in which Linton Walters is quoted as saying that if the High Court reinstates the original Public Service Commission then appointment of the new Commission will be null and void.

Jan. 11, 2008 The Daily Observer publishes a letter headed “No, Mr Chaplin, not at the AG’s Dept” by Acting Solicitor General Patrick Foster, which refutes statements made in Mr. Chaplin’s article published on January 8 about political activism on the part of lawyers in the Attorney General’s Chambers.

Jan. 12, 2008 The Daily Observer publishes a letter headed “What’s with you Mr Chaplin?” by D.S. Morgan and another headed “Unfair to denigrate past gov’t” by Michael Pennycooke, both of which challenge Mr Chaplin’s assertions concerning political activism on the part of lawyers in the Attorney General’s Chambers.

Responses to Ken Chaplin's column of January 08, 2008

2008-01-12T08:14:00.000-05:00

I note with great satisfaction that Patrick Foster, the acting Solicitor General has firmly rebutted Ken Chaplin's scurrilous allegations of partisanship on the part of staff lawyers of the Attorney General's Department. See Patrick's letter at http://www.jamaicaobserver.com/letters/html/20080110t190000-0500_131242_obs_no__mr_chaplin__not_at_the_ag_s_dept.asp)

As Patrick rightly points out, the AG's Chambers "has never provided a fertile ground for political activism to flourish". I can personally attest to Patrick's observations, based on my own experience as a lawyer, and indeed having a father who spent most of his career in the AG's Chambers.

I am glad to see that Chaplin has been challenged by DS Morgan (http://www.jamaicaobserver.com/letters/html/20080111t200000-0500_131297_obs_what_s_with_you__mr_chaplin_.asp) and Michael D. Pennycooke (http://www.jamaicaobserver.com/letters/html/20080111t200000-0500_131296_obs_unfair_to_denigrate_past_gov_t.asp

I sent a note to Chaplin on his column which I set out below:

January 10, 2008

Dear Ken,

Re: Your column entitled Fight over control of Public Service

To say the least, I am quite appalled by your latest column appearing in the Daily Observer of January 09, 2008 [editorial note: it was really January 08,2008]. You deliberately ignored the information that I provided to you in my letter of December 29, 2007. Instead, you chose to propagate unfounded, and indeed damaging claims about the partisan nature of the PSC and indeed the Attorney General’s Chambers. I can scarcely believe that a journalist of your experience and seniority would exhibit such contempt for the facts. This is not a situation where you were genuinely ignorant. You were provided with information, which you have deliberately chosen to ignore.

The only reason that I am bothering to write on this occasion is because you have recklessly assailed the reputation of the lawyers of the AG’s Chambers, including my own father, Peter A. Sobers, OD. You might not know this, but he spent 30 years in the service of the Attorney General’s Chambers, rising to the position of Deputy Solicitor General before his retirement at the turn of the century. A significant part of his tenure at the AG’s Chambers was during the 18-year regime of the Peoples National Party. My father, as Deputy Solicitor General, would’ve had some input in the hiring and promotion of professionals in the AG’s Chambers. By implication, your analysis indicts him as either a PNP activist or an accomplice to those who sought to recruit such activists during the PNP regime. Nothing could possibly be further from the truth. The most superficial research on your part would reveal that my father, like the rest of his colleagues in the AG’s Chambers, have unfailingly comported themselves with the dignity, independence, and professionalism that the job requires. To accuse them all of being PNP activists is sordid to say the least.

I find it utterly nauseating that you would seek to tarnish the reputations of lawyers without adducing the slightest evidence in support of your assertion of partisanship on their part. Frankly, you owe them an apology. Might I add that some of those recruited during the PNP regime have been elevated to the Bench. Miss Justice Mangatal is an example. Are you accusing Justice Mangatal of being a PNP activist too?

With respect to the PSC, you insist on accusing them of being partial to the PNP (with the exception of Alfred Sangster) without offering any evidence. The first time you did it, I thought you were careless. The second time, however, is clearly deliberate. Nowhere in your column have you offered any evaluation of their performance or indeed offered any evidence of public service appointments based entirely on partisan grounds. Is this your idea of quality opinion journalism?

You continue with this myth of a convention of resignations, when I clearly explained to you why such a convention couldn’t exist. You have not taken issue with what I explained to you, so I can only infer that you accept my explanation, but that your agenda does not permit you to do so publicly. That you would suppress information that does not fit in with your agenda is disturbing to say the least.

Your intellectual dishonesty also applies to your treatment of the PM’s relationship with Stephen Vasciannie, where you continue to pretend that the PM’s actions are grounded in some animosity towards Prof. Vasciannie. Speculation, Ken, is not the same thing as fact.

Finally, you assert, “If Golding does not reinstate the non-partisan characteristics of the PSC, the public service will be in dire trouble”. Excuse me, but what sort of characteristic do you think the newly appointed PSC has? Given the circumstances of their appointment, do you seriously believe that they can reasonably be perceived as non-partisan? For argument’s sake, if the selection process for the SG were repeated and it considered Prof. Vasciannie the best candidate, do you believe that this new PSC would appoint him? Another thing that you conveniently omit is that the political parties previously decided on consensus as the formula for appointing members of the PSC. Former Prime Ministers Patterson and Seaga arrived at this agreement in 2005 during the Vale Royal. Perhaps you are unaware that the so-called ‘PNP PSC’ was appointed under this formula.

One day I hope you recover your conscience.

Best regards,

Hilaire (Sobers)

Intellectual dishonesty in the Jamaican media- the case of Kevin O'Brien Chang

2008-01-10T20:21:00.000-05:00

In the Sunday Gleaner of January 06, 2008 ( http://www.jamaica-gleaner.com/gleaner/20080106/focus/focus3.html), Kevin O'Brien Chang declared that:

In 1977, Prime Minister Michael Manley called for and got a new Public Service Commission (PSC). So did Prime Minister Edward Seaga in 1980. Now in 2007 some are making a big deal about Prime Minister Bruce Golding doing the same. Ken Jones and Ken Chan a mandate by the people to do whatever he thinks is in the best interests of the country, as long as he stays within the bounds of the constitution. Mr. Golding has not transgressed the constitution anymore than Mr. Manley or Mr. Seaga did. Every democracy allows its elected leader to choose his own management teams, subject to the scrutiny of relevant bodies. Surely the proper function of the PSC, which was not voted in by the people, is to make certain that the PM's picks are fit for the job, and not to impose selections he deems unsuitable upon him. And no self-respecting democracy would allow the head of its Public Service Commission - responsible for vetting all major public service jobs - to provide rent-free premises to any political candidate. Caesar's wife, etc ...

Like the other two Kens (Jones and Chaplin), Kevin’s reasoning owes little to fact or evidence that can be substantiated. . On December 11, 2007, Kevin carried much the same line of argument an interview on Nation News Network. During that interview, Kevin praised Ken Jones' position and defended the PM's dismissal of the PSC, suggesting that it had been guilty of misbehaviour because of an adverse judicial review decision in the matter of Lackston Robinson. Kevin was evidently unaware that "misbehaviour" is a legal construct that is not readily amenable to a lay interpretation. Further, I could see no sign that he had considered that that public/statutory bodies/decision-makers like the IDT, Resident Magistrates, Police Service Commission, et al are regularly the subject of adverse judicial review decisions, without any imputation of misbehaviour on the part of the decision-makers. Following his logic, every time a judge is reversed on appeal, that judge should resign for "misbehaviour".

I emailed Kevin in an attempt to set him straight on the legal issues, if nothing else. I even sent him a copy of the article that I had submitted in rebuttal of Ken Jones' piece of December 09, 2007. In his initial response, Kevin did not dispute the correctness of my position. He deflected my critique by suggesting, among other things that the media should have lawyers discuss these matters and not laypersons. He also thought that Stephen Vasciannie was foolishly allowing himself to be used as a political tool. Like many other commentators, Kevin accepted without question the tale that Stephen had called Golding a 'dead cat'. I subsequently sent Kevin the column in which this reference first appeared, which clearly demonstrated that Stephen did no such thing. Undeterred, Kevin insisted that this 'dead cat' reference disqualified Stephen from selection as SG. I pointed out to him that even if Stephen called Golding a 'dead cat' that this was legally irrelevant to the fact that Stephen was constitutionally selected to be the new SG. I also pointed out that the PM has persons in his administration (like Aundre Franklyn) who have said far worse things about him in the past. In simple terms, the Chief Servant is not constitutionally or ethically permitted to privilege his hurt feelings (assuming they are/were) over the rule of law. Vainly, I pointed out that Stephen is not being used as a political tool, but is simply standing up for principle
Despite all of this dialogue, Kevin wrote a column that appeared on Sunday 16, 2007 (http://www.jamaica-gleaner.com/gleaner/20071216/focus/focus2.html)in which he claimed:

The Public Service Commission impasse between Prime Minister and Opposition Leader has engendered much veranda gossip. Not being a lawyer, I leave the niceties to the shylocks. To my layman's ear, Ken Jones' December 9 Gleaner article made sense. O. Hilaire Sobers claims Mr. Jones' arguments are not legally persuasive. But since Michael Manley and Edward Seaga demanded and got new PSC members in 1976 and 1980, respectively, this hullabaloo seems a tempest in a teapot.

Once again, I attempted to engage Kevin on what I considered to be his mischaracterization of the issues.
On the issue of a presumptive convention of resignations, I pointed out to Kevin that:

First of all, if indeed such a convention exists, it would clearly undermine the presumptive constitutional autonomy/independence of the PSC from the political directorate. Essentially, the PSC would become nothing more than the rubber stamp of the political directorate, something that is clearly not contemplated by the design of constitutional service commissions.

Secondly, even if previous PSC members tendered their resignations at the request of a PM, this was done by choice, not compulsion. This history does not equate to a convention of resignation when requested by a PM.

Thirdly, if indeed there is a convention of asking for, or tendering resignations, one would have to ask why Prime Minister Golding did not insist on this upon assuming office (not only for the PSC, but for the other constitutional service commissions).

Fourthly, it is a matter of public knowledge that the "Vale Royal talks" between the JLP and PNP resulted in an agreement that future appointment of PSC members would be done by consensus, rather than the lower constitutional standard of consultation. As far as I am aware, the current PSC members were appointed under that formula.

Fifthly, the so-called convention of resignations is clearly inapplicable to this situation, given that the PSC members were fired for purported misbehaviour, as opposed to being asked to resign to make way for personnel favoured by the PM.

If, having regard to these considerations, you remain of the view that this situation is merely "a tempest in a teapot", my only inference must be that the termites have been nipping at your cranium.

Kevin's brief reply was that he only had 1200 words for the column, and that what people really wanted to hear about was the crime problem (his article was entitled Where's the crime plan?)

Now, three weeks later, the best that Kevin can offer is the same: reasoning untouched by facts, logic, or balance. Now, he goes as far as to declare that the PSC's job is to essentially rubber stamp the choices of the PM!!! Further, he repeats Mark Wignall's story about the Daisy Coke renting premises to Maxine Henry-Wilson, as if to say, there is something intrinsically wrong with such a commercial transaction. If Kevin had made some inquiries , he might have discovered that the building on the premises in question had been scheduled for demolition. The building itself had been stripped of all fixtures, and was subsequently rented to Maxine Henry-Wilson as is, where is, for a peppercorn rental. Nothing more, nothing less.

Sadly, journalists like Chang, Chaplin, and Jones reinforce a Jamaican practice of preferring the ease of suss and kass kass to the rigour of critical thinking.