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.
Monday, July 7, 2008
The Attorney General's galaxy of delusion
Sunday, June 22, 2008
More on departures from the AG's Department
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.
Saturday, May 31, 2008
Coke Affidavit in response to Golding & Lightbourne
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
Tuesday, April 8, 2008
Review of the AG's Chambers: The Gleaner says good move, but is it?
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
Tuesday, March 25, 2008
Affidavits of Bruce Golding and Dorothy Lightbourne
Bruce Golding and Dorothy Lighbourne have filed affidavits in response to the application for judicial review initiated by Daisy Coke, et al. The affidavits are dated March 12, 2008. I have posted the affidavits under "PSC litigation documents" (see sidebar).
Bruce Golding's affidavit can also be found at http://www.scribd.com/doc/2361819/Affidavit-of-Bruce-Golding.
Dorothy Lightbourne's affidavit can also be found at http://www.scribd.com/doc/2361817/Affidavit-of-Dorothy-Lightbourne.
Both affidavits make for interesting, but disturbing reading. Neither the AG nor the PM appear to have even the most rudimentary grasp of the rule of law or the respective roles of the political directorate and the Public Service Commission. The constitutional reform champ and his AG both operate on the assumption that the PSC operates to follow their dictates instead of the constitution of Jamaica.
The Attorney General denies that she ever said to Daisy Coke that the only person she was prepared to work with was Douglas Leys. However, this is exactly what the AG told me when I spoke with her by phone on or about October 31, 2008. Both affidavits have focused a lot of attention on the PSC's apparent bias against Douglas Leys. Assuming that the PSC's process was vitiated by bias or some other defiency, wouldn't this be unfair to all of the candidates, and not just Douglas Leys? Surely, it would not be fair to either Stephen Vasciannie or Patrick Foster if their candidacies were evaluated and decided in a process that was substantively or procedurally flawed. However, it is clear that neither the AG nor the PM were concerned about the principle of fairness per se, as opposed to strong-arming the PSC into withdrawing its selection of Stephen Vasciannie in favour of Douglas Leys. It is quite clear, from the tenor of the affidavits, that had the PSC simply acceded to the AG's wishes, the PSC would not have been fired for 'misbehaviour'.
The AG's affidavit repeats her public objection to Stephen Vasciannie on the basis of his supposed lack of litigation experience. It seems to me that if litigation experience was the premier qualification for the job of Solicitor General, then surely Patrick Foster would've been a better choice than Douglas. While both are experienced litigators, Patrick has litigation experience at both the public and private bars, while Douglas; experience has been at the public bar only. The AG still has not grasped the role and function of the Solicitor General. As I have said before, the Solicitor General's primary role is that of an adviser/administrator, not that of a litigator. Litigation is simply one of five areas in the AG's Chambers, and certainly is not the dominant area of activity in the Chambers. Quite fatuously, the AG dismissed concerns expressed by the PSC about Douglas' interpersonal skills, stating that she wasn't interested in his "social skills", but "required a functioning Solicitor General". In which galaxy does the the AG think that interpersonal skills are unimportant in the management of lawyers?? Given her own record of alienating members of her Chambers, it is quite clear what little premium she places on getting along with her colleagues.
One of the more bizarre elements of the AG's affidavit is that this is the first time that I have ever heard a public functionary invoke the doctrine of legitimate expectation in response to a claim of abuse of power!! Legitimate expectation is a well-known doctrine in administrative law. It was this doctrine that Lackston Robinson invoked when he challenged his non-appointment as Deputy Solicitor General after acting in the post for a year. Essentially he claimed that he had a legitimate expectation (as opposed to a substantive right) of being appointed to the post, having acted. This claim was eventually dismissed. In short, legitimate expectation is only invoked by persons who are challenging an adverse decision by a public functionary. I have never seen it invoked as a defence by a public functionary to a claim of abuse of power.
In administrative law, public functionaries/bodies have a duty to be fair in making decisions, particularly where those decisions may adversely affect the rights or interests of others. Where a public authority has given a promise or representation to a person that a particular practice (or pattern of decision-making) will continue, administrative law recognizes that in those circumstances, a legitimate expectation may reasonably arise on the part of an interested or affected party that the practice or pattern of the public authority will continue until and unless the public authority first signals otherwise. The concept of legitimate expectation connotes the idea of inculcating an expectation in the citizen by a public authoriy that a rule, policy, practice,or scheme will continue. In this context, the citizen has a legitimate expectation that he/she will enjoy benefits of such rule, policy, or scheme, and will not be deprived thereof unless there is some overriding public interest,or that the public authority has signalled an end to a relevant rule, policy, practice, or scheme. The idea is that a person may be unfairly prejudiced by an adverse decision by a public authority when the public authority has previously represented (expressly or impliedly) that it would do otherwise. However, as indicated before, the doctrine of legitimate expectation is may only be invoked by ordinary citizens who may consider that they have been treated unfairly by a public authority. It does not apply to public functionaries like the AG and the PM, and certainly not as a defence to their own administrative malfeasance.
In this case, both the AG and the PM have relied on the legitimate expectation that the PSC would not have selected a candidate as SG without first consulting with them. The AG bases this on some assurance allegedly offered by Daisy Coke that "I could not recommend someone with whom you could not work."
I simply do not buy the AG's story that Daisy Coke gave her any such assurances. Firstly, as an experienced member of the PSC, I can hardly see Daisy Coke essentially agreeing to surrender the PSC's discretion to the AG. Secondly, Daisy Coke would hardly have been in a position to bind the PSC with respect to such an assurance, even if it had been given. Thirdly, as a matter of law, the PSC was never obliged to consult the AG or the PM; as such,any consultation could only reasonably be construed as a courtesy, but certainly not a command. Such assurance, even if had been given, could never be binding as a matter of law. This is rudimentary adminstrative law. Why is the AG pretending not to know this? Then again, maybe she doesn't!
This nonsense argument betrays a pathetic effort by the AG and PM to sanctify their outrageous assault on the rule of law.
Both the AG and the PM treat this supposed failure of the PSC to consult with them, as if it were some fatal breach of the law. Ironically, they assail the perfectly lawful participation of John Leiba and Carlton Davies in the deliberations of the PSC. I can see the lawyers for the PSC having a field day cross-examining the AG and PM on this issue! I wonder if it has occurred to either the AG or the PM, that had the PSC acceded to their wishes, that the PSC would then be in palpable breach of the law.
I find it mind-blowing that Bruce Golding considers his meeting with the PSC on Oct. 31 as the equivalent of a hearing!! He compounds this fatuity by claiming that he subsequently 'discovered' that Pauline Findlay previously had a relationship with Michael Hylton, which supposedly compounded the "appearance of bias". Even if he could pretend that the meeting on Oct 31 was a "hearing", where was the hearing on this issue?? For there to be even a pretence of a hearing, he would've been obliged to at least call on Pauline Findlay for her side of the story, which he clearly didn't. It's incredible that Bruce Golding has the audacity to claim that all the Commissioners had ample opportunity to respond, when at no time did he formally request any of them to show cause why they shouldn't be removed for misbehaviour, much less provide particulars of the alleged misbehaviour.
The PM claims in his affidavit that Alfred Sangster offered to resign during the Oct 31 meeting with the PSC. If this were so, why didn't Sangster say this when he publicly distanced himself from his erstwhile colleagues? I have little doubt that this so-called offer of resignation is nothing more than a figment of the PM's imagination. Interestingly, the PM has not explained in his affidavit why he fired Sangster, when Sangster wasn't part of the panel that interviewed the candidates for Solicitor General, nor was he a member of the PSC when Justice Jones ruled against the PSC on the retirement of Lackston Robinson in the public interest. Again, I can see lots of cross-examination material for the lawyers representing Daisy Coke, et al.
Dorothy Lightbourne states in her affidavit (paragraph 3) that "Professor Stephen Vasciannie was a part time officer contracted to the former
Attorney General, the Hon. A.J. Nicholson, to deal with international matters and
was later made a supernumery (sic)".
This is complete crock. AJ did not, and could not have contracted Stephen Vasciannie.
Stephen was recruited as a Consultant in the Attorney General's Chambers at the level of Deputy Solicitor General, with primary responsibility as Head of the International Division of the Chambers. Stephen reported to the Solicitor General (Mike Hylton) and not directly to AJ. The AG is clearly trying to create the impression that Stephen was a political appointee, working directly for AJ, which is not true.
After a year as "Consultant", both Stephen's title was changed to "Deputy Solicitor General"; but with no change in functions. In this context, Lightbourne's reference to supernumerary is also misleading because it does not say supernumerary at what level; the level was that of Deputy Solicitor General. In effect, Stephen worked as a Deputy Solicitor General (with that title) for four years. The AG appears to have deliberately obscured or distorted the facts on this issue. Obviously, Stephen's employment record with the AG's Chambers would not only be documented, but the AG herself would have direct access to this record.
One can only infer that the AG fully intended to smear Stephen Vasciannie as a partisan functionary operating at the behest of the previous PNP Attorney General, and by extension, the PNP iself. This is consonant with her unsubstantiated belief that under the PNP regime, the AG's Chambers had been taken over or had become dominated by 'PNP' lawyers. While the AG claims that her principal objection to Stephen Vasciannie's selection as SG was on account of his purported lack of litigation experience, her deliberate mischaracterization of his employment status strongly implies that she simply saw him as a PNP operative who needed to be eliminated. As I have said before in other commentaries, there is little doubt as to the partisan agenda of the AG in her approach to the AG's Chambers. This most recent evidence of this is the obstruction of Nicole Foster-Pusey's appointment as acting Deputy Solicitor General.
The affidavits of the PM and AG have a number of exhibits, including the correspondence between the PM and the Leader of the Opposition that preceded the formal dismissal of the PSC members by the Governor General. What is obvious from the correspondence is that the PM had not intention of addressing, much less taking into account any of the legitimate concerns expressed by the Opposition Leader. I remain amazed that the PM, with his reservoir of political experience has handled this issue so ineptly, with no vision other than short term partisan gain. The vision for Jamaica that he so eloquently articulated on September 11, 2007, continues to be betrayed.
Friday, March 21, 2008
More departures from the AG's Chambers?
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.
Sunday, February 10, 2008
Commentary on litigation by dismissed PSC members
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.
Tuesday, January 8, 2008
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.
