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

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

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Unpublished response to Mark Wignall column of Dec.27, 2007

Dear Mark,

Re: Valuable time wasted on the PSC matter- Observer –December 27, 2007

I think that your column reproduced a number of misconceptions and mistakes of law that I have repeatedly heard in public discourse on the PSC issue.

For what it is worth, I offer some comments to some portions of your column below:



Colleague columnist Ken Chaplin's excellent column on Tuesday, "Golding, PSC and the Opposition" is required reading for those wanting to see explained in simple language more of the complementary factors operating in the Jamaican Constitution (as it relates to PSC matters) between the "letter" of the law and the "spirit" of the law.


While you may consider Ken Chaplin’s column to be excellent, his analysis was fatally flawed in numerous respects:


1. There is no convention of resignations by Service Commissions upon the inauguration of a new 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. Further, if indeed a convention of resignations exists, why then haven’t the members of the Police Service Commission and the Judicial Service Commission resigned?

2. According to Ken Chaplin, the PM asked the PSC to resign, before he acted to dismiss. This is palpably untrue. I have spoken with two members of the PSC who have confirmed this.

3. There is absolutely no evidence of the PNP government “packing” the PSC with PNP supporters. I challenge you, Ken Chaplin or anybody else to produce any evidence of this. I hardly think someone with the name Sangster is likely to be a PNP supporter. Further, it is public knowledge that as a result of the Vale Royal talks, the political parties decided to initiate a practice of consensus on the selection of PSC members (which is an improvement on the consultation process). My understanding is that this new practice was applied to the current PSC members.

4. Ken Chaplin claims that the “ The PSC, as the Constitution allows, from time to time, brought in top officials like the Cabinet Secretary who is answerable to the prime minister…”. This gives the impression that the PSC has the final say in the selection of the Cabinet Secretary, when in fact it is the PM. Under Section 92 of the Constitution, the PSC merely provides a list of public officers to the PM, who then chooses a Cabinet Secretary from this list.

5. Ken Chaplin also asserts that Stephen Vasciannie and the PM have been at “daggers drawn” since their days in the NDM and that they are not on speaking terms. From my own inquiries, I am satisfied that this is simply not true. I believe that had Ken Chaplin made inquiries of the PM and Stephen Vasciannie, he might have discovered this. I was in the NDM, and I am more than familiar with the circumstances that led to Stephen’s departure. What many fail to appreciate is that neither Bruce nor Stephen had any reason to interact outside of the political context of the NDM. Non-interaction does not equal alienation. You might note that to date, Bruce Golding has never publicly said he has any disaffection with Stephen. Indeed, he has indicated the contrary in private. In any event, from a constitutional standpoint, even if Bruce and Stephen remained politically estranged, this hardly disqualifies Stephen, constitutionally, from being considered or selected for the post of Solicitor General.

6. According to Ken Chaplin, “As solicitor general, Professor Vasciannie would have to advise the government and the prime minister”, and that “The situation would be untenable…and the PSC should have used its discretion. To force someone on the government in whom the prime minister apparently has no confidence could not have been the intention of the founding fathers of the Constitution. “

As I was at pains to point out to you in an earlier email, the SG does not personally advise the PM. I refer you to that email which details the functions of the SG. If there is a supposed lack of confidence in Stephen Vasciannie, why then has the Attorney General already gone on record to say she has no problem with him as Deputy Solicitor General? If indeed this lack of confidence in Vasciannie exists, why even tolerate him in the AG’s Chambers at all?? There are other political factors at work, which you might wish to investigate.

7. Contrary to what Ken Chaplin claims, the Supreme Court never ordered the reinstatement of Lackston Robinson. To then say that the PSC has essentially ignored the Court’s order (as evidence of misbehaviour) is completely untenable. I would suggest that you read the judgment for yourself if you have not already done so. It might interest you to know that the PSC’s actions after the judgment in seeking to reassign Lackston Robinson to another part of the public service were grounded in advice they received from the AG’s chambers.


Led by an obviously power-hungry leader, Portia Simpson Miller, the Opposition PNP has allowed itself to merge normal Opposition duties with a need for hijacking government for its own narrow, selfish purposes. After 18 long years in power, the PNP is having extreme difficulty withdrawing its tentacles from all areas of the society. Having determined that the Stephen Vasciannie/PSC imbroglio is the perfect springboard from which it hopes to launch underhanded opposition ("it is not over yet") the PNP, though fragmented and bitter in factions, has taken on the role of chief bugbear to the nation as it seeks to formulate a new, workable mission.


You haven’t adduced any evidence to support your claim that the PNP is “hijacking government” or using the Vasciannie/PSC as some sot of “springboard” for “underhanded opposition”. I hold no brief for the Leader of the Opposition, as you well know, but she is more than legally and constitutionally entitled to challenge the PM’s dismissal of the PSC for failure to observe the rules of natural justice. The suit is not about forcing the government to accept Stephen Vasciannie; it is about forcing it to observe the rule of law. As a citizen of Jamaica I would imagine that you would have an interest in the protection and promotion of the rule of law. In this regard, I think it immaterial whether the protagonist in this litigation is the Opposition Leader or someone else. Unfortunately, Jamaicans so reflexively see issues through the lens of tribal politics that even when we can agree on the principle, we prefer to focus on the personalities involved.



One reader who has been observing recent events sent me the following:


"My reading is that Portia may not last another six months as leader. The issues are really out of her depth. On the other hand, Dr Peter Phillips seems to be a victim of the 'Drumblair vs Out of the womb of the working-class' syndrome.



"I don't think the Leader of the Opposition has a case against the PM. She needs to read the constitution properly. Seaga's article, 'The Governor General's balancing role' (Sunday Gleaner, February 19, 2006) should help her a great deal. Understandably, the Constitution accords the PM the final say (Sections 32, 124 and 125).


It entirely escapes your reader that the case nothing to do with whether the PM has the final say on the appointment or dismissal of PSC members, but whether the PM followed the rules of natural justice in dismissing the PSC members.



"Let's look at how the past has influenced the present:

"The Solicitor General (SG) is an employee of the government of the day. He is legal counsel to the government of the day. In addition, he prosecutes and defends cases on behalf of the government.


Perhaps you may wish to refer to my earlier remarks on this issue. Much of the public hasn’t a clue what the role and function of the SG is, and articles like yours and Ken’s serve to keep them in this ignorance.



"Prof Vasciannie's 'dead cat' remark has driven a wedge between himself and Bruce".


This has never been established. See my earlier remarks. Again, basic inquiry might serve to resolve this issue, rather than resort to suss.


"Then there is his advice to the Simpson Miller administration resulting in the denial of permission to the Dutch authorities to conduct investigation here on one of their own corporate citizens, Trafigura Beheer. The fact that a local piece of appendage was not prepared and affixed to the Treaty, ratified by both Jamaica and the Dutch, had not absolved Jamaica from its obligations. So, what was the basis of the advice-partisanship? Legal imperatives? Political consideration? Incompetence? It looks like there are questions of credibility problem and unprofessional conduct, and the Prof has disqualified himself.’


I am not sure if you have seen the letter of advice for yourself. What your reader has produced is a rank distortion of the issue, which I imagine was fueled by Ken Jones’ intellectually dishonest analysis that appeared in the Gleaner in November 2007. The acting Solicitor General clearly set out the facts/law on the issue in a letter to the Gleaner in November 2007. I too, had a couple of letters published in the Gleaner that clearly refuted Ken Jones’ claim of a partisan or unprofessional agenda at work. What also escapes your reader is that the current government has actually acted on that original letter of advice, in terms of securing the necessary ministerial order to facilitate the Trafigura investigation.



"The members of the PSC do not appear to have fared out any better than the recommended candidate.



"Given what ought to have been known existing on the ground, should the PSC have made that recommendation?

"In considering the function of the PSC and determining the fate of its members, should matters such as what could be interpreted as its apparent vindictiveness against Leys, the court charge of abuse of authority, and the displaying of contempt for the court order up to the time of the revocation be overlooked? Should one expect the offices of the GG and PM to have condoned all of that?



"The nature of the conduct/behaviour of the members of the PSC seems to have spoken for itself. Consequently, one wonders what purpose the setting up of a new tribunal on the matter of natural justice would serve?


With respect, Mark, this is just nonsense. Based on the premise of your reader, if a person is arrested for an offence in which the evidence of commission appears conclusive, such a person should automatically be deprived of the right to be heard in his/her own defence. Your reader clearly doesn’t understand that misbehaviour is a legal construct, and not merely a matter of subjective opinion. I had a letter in the Gleaner of December 18, 2007 that addressed this issue comprehensively. Finally, it appears that your reader is not acquainted with the facts leading up to the supposed misbehaviour. Vindictiveness is a serious charge to level against the PSC. Neither you nor your reader has supplied any evidence to support this assertion. Your reader makes heavy weather of this supposed “court charge of abuse of authority”, without in any way comprehending that tribunals are routinely hauled over the coals in judicial review proceedings without any imputation of misbehaviour. To follow the argument of your reader to its logical conclusion, every time a judge is reversed on appeal, he/she should be cited for misbehaviour. Moreover, the Police Services Commission which recently selected our new Commissioner, was itself the subject of a similar judicial review when the court determined that it wrongfully retired Donovan O’Connor (aka Hux) in the public interest. As I pointed out to you, the PSC is not, and has never been in contempt of court. Contempt of court is a legal construct that can only be resolved by a court of law, not the court of public opinion.



"It would appear that the Leader of the Opposition is challenging the constitution rather than the PM. The PM was merely executing his constitutional obligations. A fundamental question arises. Does the court have the power to, in any way, block the PM in his constitutional track while he is about to or in the process of executing his obligations?

"One observes that in the final analysis, the constitution makes the leader a mere accomplice notwithstanding non-concurrence."

The Leader of the Opposition has not challenged the constitution, but merely the PM’s failure to observe due process. The court has the power, nay, the duty to restrain any public functionary, including the PM, if they are violating the law.

While you, Mark, may think the PSC issue is a waste of time, ensuring that the dimensions of the issue are accurately represented, is not.


Hilaire

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