This is why lawyers left, Senator Tavares-Finson

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"?

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More turbulence in the AG's Chambers

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.

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

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.

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

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

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

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

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

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.

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Ken Chaplin's column of January 15, 2008

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.

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Strange 'official' by D. S. Morgan

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.

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

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.

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Article published in the Observer -Jan 19, 2008

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

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

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)

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Discussion on "This Morning" programme- Nation News Network

I was on the NNN's morning programme today with Emily Crooks and Naomi Francis to discuss some dimensions of the PSC issue, as well as the Attorney General's declared role in personnel management decisions in the AG Chambers. Frank Phipps, QC, chairman of the Farquharson Institute was also on at the same time to speak about the Institute's call for an inquiry into the operations of the AG's Chambers. For information, here's a post-show note that I sent to the hosts.






Dear ladies,

Thank you for having me on this morning. There are a couple of things that I don't think that I was able to adequately explain or clarify.

1. Nature of judicial review. Emily, you made reference to the judgment of Jones J which quashed the decision of the PSC to retire Lackston Robinson in the public interest. As I tried to explain, the nature of judicial review is simply an exercise by the Supreme Court to determine whether a decision by a public authority/functionary was lawful. A review is not the same thing as an appeal, although at times there can be some overlap. While Jones J was critical of the PSC, what is of paramount importance is the substance and effect of his ruling. His ruling simply declared that the PSC decision was wrong in law, and that it should be quashed (by order of certiorari). There is nothing in the judgment that mandated the reinstatement of Lackston Robinson, as (a) this would exceed the judicial review jurisdiction of the court; and (b) such an order, if made, would effectively substitute the judgment of the court for the discretion of the PSC. This is legally untenable. As I pointed out, it was open to the PSC following the judgment to again decide retire Lackston Robinson in the public interest, a decision that would be unchallengeable if done strictly in accordance with the law.

With respect to the pending judicial review litigation, let me reiterate that an adverse decision by the court would have implications for the previous PSC as well as the new one. If the court finds that the PM acted unlawfully in recommending the dismissal of the PSC members, then the legal implication of this would be that Daisy Coke et al, would in law remain lawful members of the PSC. Accordingly, the appointment of the new PSC members headed by Amb. Rainford would ipso facto, be void and of no legal effect. One of the real difficulties that could arise is the legal status of any selections made by the new PSC, if a court subsequently holds that the new PSC was unlawfully appointed. If a court finds against the PM, the PM, would, like the PSC be entitled to repeat the process of dismissal, but only in accordance with the law. If he again breached the law in dismissing the PSC, his decision would again be subject to the judicial review of the court.


2. Interference by the AG It seems that both of you seem to believe that the AG is justified in having an input in the selection of permanent members of staff. The AG has plainly stated that she is not prepared to allow the Exec Cttee to exercise any role in this regard, and that she must have the ultimate say. In her interview with you earlier this week, she partly grounded her position on the notion that the AG's Chambers is a department of the Ministry of Justice.

Firstly, the AG's conduct is without precedent, certainly as far as the AG's Chambers is concerned. It is trite constitutional law that political functionaries like the AG have NO say in the selection of permanent members of the civil service. This is in keeping with our constitutional design which segregrates political functionaries from public service functionaries. The raision d'etre of Service Commissions is to ensure that appointments to the public service are not tainted by political interference. The implications of political functionaries having a free hand to select public service officials are obvious. The modus operandi of the Exec Cttee is in keeping with our constitutional design. This Committee, I understand, was established by Michael Hylton during his tenure as SG, and served to deal with all personnel issues, prior to making recommendations to the PSC. Over the past decade or two, the PSC has, as a policy, devolved far more discretion on line managers in government ministries/departments in personnel matters, for good reasons of efficiency and effectiveness. It is quite impossible for the PSC, a body that sits part-time, to be involved in the minutiae of ALL public service selections/appointments. By rough analogy, one does not expect the CEO of a major corporation to be involved in the minutiae of personnel; this is left to a personnel manager/dept that does the initial sifting/processing before recommendations are presented to the CEO for approval. In some corporations, the CEO simply delegates the final decision to a senior officer.

The AG's Chambers is not in law, a department of the Ministry of Justice. In law, the AG is a specific office established by section 79 of the constitution. While the Ministry of Justice may have portfolio responsibility for this office, there is no reporting relationship (in law) between the AG and the Ministry of Justice. Traditionally, the posts of AG and Minister of Justice have tended to be held by one person. However, these posts are legally separate. If, for argument's sake, the posts were held by different persons, the AG would have not be obliged to report to the Minister of Justice. Accordingly, it seems to follow to me that the permanent staff of the AG are equally not obliged to report to the Minister of Justice.

By comparison, the office of the DPP also falls under the portfolio of the Justice Ministry, but the Minister cannot exercise any say in the personnel matters relating to the DPP's department. Like the AG, the DPP is a constitutional creature who is not answerable to any political functionary. Similarly, the management of the courts falls under the Ministry of Justice. You can rest assured that the Minister of Justice has no say in the staffing of the courts; this falls exclusively to the PSC.

3. Implications of AG's conduct. While you may both consider it appropriate for the AG to have a say in personnel matters regarding her Chambers, I am not sure if you have fully considered the implications of this approach with respect to other areas of government service. The AG's precedent opens the way for other political functionaries to bypass the constitution and the rule of law, in terms of staffing the public service with loyalists, rather than professionals. In the event that there is a change of government, would you not expect the new government to do the same thing? Assuming that the new PSC remains in place, is it not reasonable to assume that they will be prepared to do the JLP's bidding and rubberstamp selections made by political functionaries? Again, if and when the government changes, wouldn't it be reasonable to assume that the new government would then seek to replace the PSC with its own people, so as to secure their own public service selections? Why indeed confine it to the civil service? If, for argument's sake, the courts rule against the government in the pending litigation, what is to stop the government from firing the judge or judges who ruled against it? In terms of selections by the Judicial Service Commission for appointment/promotion to the bench, what is there to stop the JLP government from firing the JSC, if the JSC insists on a recommendation that the government doesn't like?

One of the things that seems to have eluded many of us in this debate is that the government apparatus is not the personal fiefdom of a particular party or PM. Much has been said about the need for the PM and/or AG to be able to have people around them that retain their confidence. Few seem to recognize that the constitution does not give them the luxury of hiring or firing according to their personal taste, nor should it. The nature of government is that political functionaries are obliged to cooperate with civil servants whether they like them or not. If there is a basis for complaint/dismissal, there are available mechanisms. This notion that the lawyers of the AG's Chambers are obliged to adapt to Dorothy, rather than the other way around, is, frankly, ludicrous.


More anon,


Hilaire

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Commentary on NNN discussion on AG's Chambers

Emily Crooks and Naomi Francis of Nationwide News Network had a discussion this morning (Jan 08, 2008) on the situation in the Attorney General's Chambers. One of their conclusions was that the AG was entitled to have a say in the management of personnel in the AG's Chambers. Below is my response to them.




Ladies,

I take issue with your analysis this morning on the AG's Chambers for a number of reasons.

1. You both appeared to justify Dorothy's intervention in personnel matters in the AG's Chambers, based on the fact that she is the head of Chambers. You carefully distinguished her role/function as AG from that of Min of Justice, concluding that her intervention was valid if done as AG, but not as Minister. The implication that Dorothy would be guilty of political interference if she acted in her capacity as Minister, but not as AG is completely wrong. You both seemed to ignore the fact that the constitution of Jamaica excludes input from political functionaries in the personnel decisions relating to regular public service officers.

I heard one of you compare the AG with the DPP, in terms of the right to input in personnel decisions. This analysis is completely flawed. Firstly, there is no comparison between the AG and the DPP, save for the fact that they are both creatures of the constitution. The DPP is clearly a non-political functionary, while the AG is clearly a political functionary. The constitution makes it quite clear that political interference (whether by the AG or a cabinet minister) in the selection of public service officers is simply not on. While the DPP will invariably have input in personnel decisions of his department, this does not, and cannot apply to the AG.

The fact that Dorothy has now arrogated to herself the power to approve personnel decisions (as AG) is unprecedented in the 45 years of independence, certainly as far as the AG's Chambers is concerned. Like the PM, Dorothy, whether as AG or Min of Justice, has NO say in the selection of public service personnel in the AG's Chambers or indeed, in the Ministry of Justice. The previous practice of having an executive committee deal with personnel matters as a preliminary to making recommendations to the PSC is, in law, quite correct. Dorothy's claim that this committee had been acting without oversight or accountability is completely false.

2. Naomi, you took issue with Michael Hylton's note to the PS of the Ministry of Justice, which he wrote four days after his resignation took effect. There is nothing untoward in this. Firstly, Michael's note reflected a discussion that he had already had with Dorothy prior to his departure as SG. This was not a conversation that the PS would've been privy to. Further, Dorothy, in a staff meeting with the lawyers in the AG's department had publicly 'trashed' Michael Hylton for having previously documented his position to her (following their conversation). Even if you hold that Mike was "out of order" for responding to the PS, surely, it can't have escaped you that the bigger, and more fundamental issue is the AG's wilful disregard of the constitutional autonomy conferred on the PSC. There is good reason for the AG to be uninvolved in personnel matters, as clearly, any selections approved by her would naturally appear to be partisan (even if that wasn't the intention). This goes against the spirit of the constitution, if not the letter.

3. Naomi, I understand you to be arguing that there is a culture within the AG's Chambers that has ossified over the past 18 years, that is inherently antagonistic to the new AG. This is simply not so, Naomi. As I told you, my father spent most of his career in the AG's Chambers where he served 7 or 8 AGs of differing political stripes. One thing I can tell you is this. Despite the contamination of other government agencies by tribalism over the years, the AG's Chambers has, in my estimation, remained pristine. It is quite unfair for you to assert the existence of such a culture of political resistance without adducing any evidence to support this view. What is more, I can tell you that if you took a poll of the lawyers in the AG's Chambers, you might well find that most of them supported the JLP in the last election, not that that is relevant. As a lawyer of almost 20 years experience, I have never found the AG's Chambers to operate with a partisan agenda, and indeed, all AGs prior to Dorothy, have been content to allow the professionals to get on with the work of the Chambers in a professional and independent manner. Further, if you know anything about the work of the Chambers, there is little or no room to be partisan, even if you were so inclined.

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Commentary on NNN interview with Attorney General

On Sunday, January 06, 2008, the Sunday Herald's lead story reported that the Attorney General and her staff are at "loggerheads" over alleged political interference by the AG in critical areas like personnel management and case management. These are areas that are typically handled by the Solicitor General who has overall administrative responsibility for the Attorney General's Chambers.




In a radio interview with Emily Crooks and Naomi the Attorney General largely confirmed, and indeed, defended her interventionist stance in the affairs of her Chambers. What was particularly striking in this regard was her shameless insistence on having Lackston Robinson reinstated in the Chambers. The selection or reinstatement of public officers falls exclusively within the domain of the Public Service Commission (PSC), and not political functionaries like the Attorney General.

According to the Attorney General, she had written to the Minister responsible for the Public Service to facilitate Lackston Robinson's return to the Chambers. The Attorney General justified her position by claming that the PSC had acted in contempt of a court order that mandated Mr. Robinson's reinstatement. By way of background, in July/August 2007, Mr. Justice Jones quashed an order of the PSC to retire Mr. Robinson in the public interest. Since then the PSC attempted to transfer Mr. Robinson to another department of government (tax) in the absence of any available position in the AG's Chambers.

Mr. Robinson initiated litigation a few weeks ago to force the PSC to reinstate him in the AG's Chambers. By consensus, the Mr. Robinson's lawyers and the AG's Chambers agreed to jointly apply to Justice Jones for a clarification of his judgment, to determine whether indeed there was an order of reinstatement, and if so, the terms. The AG has completely bypassed this judicial process, and indeed the constitutional authority of the PSC in insisting on Mr. Robinson's reinstatement.

I have read the judgment of Justice Jones. Nothing in it mandates the reinstatement of Lackston Robinson. Justice Jones ruled that the PSC had failed to follow the prescribed legal procedure in retiring Mr. Robinson, and that its decision was therefore unlawful. As all lawyers know, including the Attorney General, the proceedings before Justice Jones were in in the nature of judicial review. In simple terms, all the judge was called on to pronounce on was whether the PSC's decision to retire Lackston Robinson was done in accordance with the law or not. The judge would've had no jurisdiction to order Mr. Robinson's reinstatement, as this would be tantamount to usurping the decision-making authority of the PSC. After Justice Jones had pronounced on the legality of the PSC's decision, it was still open to the PSC to retire Mr. Robinson in the public interest, provided that it followed the prescribed legal steps to do so.


During the interview, the AG accused the PSC of acting in contempt of Justice Jones' order. This accusation is completely unfounded, having regard for the foregoing. It seems to have escaped the AG that the PSC also has the constitutional authority to transfer public officers. A transfer of Mr. Robinson to another government department at the same professional level/grade would clearly fall within the authority of the PSC.

The Attorney General justified her micro management of her Chambers on the basis that she is ultimately answerable for the work of her Chambers. However the AG wants to spin it, this is political interference, plain and simple. Prior to her arrival, there was an Executive Committee of the AG's Chambers made up of the Solicitor General, the Deputy Solicitors General and the five Divisional Directors. This committee assumed responsibility for processing and vetting applications for vacancies/promotions, and then making recommendations to the PSC. In the interview, the AG claimed that this Committee has been acting as a law unto itself with no accountability to either the AG or the Ministry of Justice. This is completely unfounded, given that final decisions were made by the PSC, and not the Exec Committeee. Since the introduction of the Administrative Reform Programme, the PSC itself has tried to devolve more authority on line managers to process personnel matters within their respective ministries/departments. While the AG pays lip service to the notion of an independent corps of lawyers in her Chambers, her conduct certainly suggests the contrary.


The Attorney General has essentially become a commissar in the AG's Chambers, which is completely untenable. The AG is supposed to confine him/herself to policy, not to the minutiae of the work of the Chambers. It is quite shocking therefore, to hear the AG defend her interventions in specific cases being handled by individual lawyers in her Chambers, such as the litigation in the Barrington Gray/DK Duncan election case. Her management approach is clearly high-handed and cannot bode well for the morale of her Chambers. She quite plainly said she has no relationship with the staff of her Chambers, and that she only relates to the acting SG. While it is true that the AG relates primarily to the SG, previous AGs have developed professional relationships with other members of staff. This was certainly the experience of my father during his almost 30 years of service to the AG's Chambers.


In the interview, the AG was quite happy to embarrass the acting SG by stating that she had written to him about certain matters but had not received a response. One would have thought that the SG's office is in Geneva, rather than in the same building as Dorothy. What prevents the AG from simply picking up the phone and asking the SG to address her questions? The AG similarly had no reservations about embarrassing the Permanent Secretary of the Ministry of Justice. The AG claimed that the PS was unable to answer her questions about matters of travel expenses and other administrative matters in the AG's Chambers.

Over Jamaica's 45 years of independence, no AG has behaved as arbitrarily as Dorothy. Not Victor Grant (JLP); not Leacroft Robinson (PNP); not Carl Rattray (PNP); not David Coore (PNP); not Winston Spaulding (JLP); not Ossie Harding (JLP); not AJ Nicholson (PNP).

The office of the AG has always been above the fray of tribal politics. Not anymore, it seems.


A final observation: in the interview, the Attorney General claimed that her department is part of the Ministry of Justice. Is this really so? Section 79 of the Constitution establishes the Attorney General as a discrete, independent office, without any reference to ministerial oversight. I hope my more experienced colleagues at the public bar can offer their insights in this regard.

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