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

The Observer has finally published my letter on the settlement of the PSC litigation.

It's interesting, but not surprising that the Observer itself has not had any editorial comment on the outcome of the litigation and the implications thereof.

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

A week ago I submitted a letter to both Jamaican daily newspapers on the 'settlement' of the PSC litigation. So far neither of them have seen fit to publish it, so I am posting it here for those who are interested.



Dear Editor,

The former PSC members have capitulated to the PM and the AG under the guise of a “settlement”. Contrary to media hype, the PM has not apologized for, or withdrawn his claim of misbehaviour. This capitulation could have been done much more efficiently by simply resigning a year ago instead of pursuing expensive time-consuming litigation. The capitulation of the PSC litigants effectively completes the constitutional castration of the PSC, and sets a precedent for the Prime Minister and his successors to impose their will on other Service Commissions. I don’t see any Service Commission nominating candidates for positions without first checking with Jamaica House.

Alfred Sangster gloatingly characterizes his erstwhile colleagues as “arrogant and stupid” for having the temerity to stand up to the Prime Minister and his Attorney General. Dr. Sangster is certainly entitled to his opinion, but I would suggest that his justification for withdrawing his endorsement of Prof. Stephen Vasciannie is just as susceptible to the label of stupidity, if not arrogance. A year after he was fired, Dr. Sangster still has not mastered the concept of constitutional misbehaviour; he now accuses his former colleagues of ‘sociological and political misbehaviour’, a concept unknown to Jamaican constitutional law.

Piously, Dr. Sangster claims that he was “praying that some solution would come” and that he is “very happy that this has come, so people have to make friends again and people will have to restore relationships and dignity". What Dr. Sangster didn’t mention is that his “prayers” included interjecting himself in the litigation by filing two affidavits in support of the Prime Minister and Attorney General. These affidavits were filed on October 20 and October 23, 2008, less than two months before the scheduled start of the litigation on December 08, 2008.

At the end of the day, all of the ex-PSC members have capitulated to Prime Ministerial tyranny, aggravating the damage already inflicted on the constitution and the rule of law. I hope that future generations will be more forgiving of them than I am.

Yours truly,

O. Hilaire Sobers
ohilaire@yahoo.com
Washington, DC
December 10, 2008

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The capitulation of the PSC

As I said on RJR on Monday December 8, the so-called settlement of the litigation between the ex-PSC members and the PM & AG was really a capitulation. Despite what has been reported in the media, the PM did not withdraw the charge of misbehaviour. According to the joint press release by the parties:


The Parties accept that it is not in the national interest to pursue this matter and have agreed to discontinue the action. (Paragraph 3)

The Parties accept without admission that the working relationship between the Parties has irretrievably broken down so that any workable association depending on trust and confidence has been rendered impossible. In the circumstances, this situation is not conducive to good governance and the national interest (Paragraph 4)

The First Respondent [the Prime Minister] states categorically that the recommendation for the termination of the Claimants' appointment as members of the Public Service Commission was not intended to suggest, or be construed that there were any acts of dishonesty, corruption or personal misbehaviour on the part of the Claimants during their tenure as members of the Public Service Commission. (Paragraph 5)

The Respondents recognize the services of the Claimants in various areas of national life and thank them for their services. (Paragraph 6).





The "national interest", rather than being enhanced by this so-called settlement, has been betrayed. The Public Service Commission is constitutionally designed to operate independently of the political directorate. The Judicial Service Commission and the Police Service Commission have the same constitutional status. The immediate effect of the "settlement" is to transform the PSC and their fellow Service Commissions into extensions or satellites of the political directorate. I cannot see any of the Service Commissions now daring to nominate candidates for appointment without getting the all-clear from Jamaica House. Members of Service Commissions can expect to have no better security of tenure than members of statutory boards. So from now on, whenever there's a change of government, I expect that members of Service Commission will meekly offer their resignations to give the new government a free hand in ensuring that these Commissions remain satellites of the prevailing party in power.


In his affidavit of March 12, 2008, the Prime Minister justified his dismissal of the ex-PSC members on the ground of misbehaviour. To say that the dismissal of the members "was not intended to suggest, or be construed that there were any acts of dishonesty, corruption or personal misbehaviour" does not constitute some sort of apology for, or withdrawal of the PM's broad allegation of misbehaviour. As I have noted in previous posts, "misbehaviour" has a particular legal meaning. Apart from that, at no point during or before the litigation was there any allegation made of "dishonesty, corruption or personal misbehaviour" as such. So really, what is the purpose of including this in the press release?

For the PM, the "misbehaviour" of the ex-PSC members included:

* nominating Stephen Vasciannie for the post of SG in the face of objections by the AG; and in breach of "assurances" that the they would make no nominations without first consulting the AG and the PM (para. 19)

* including non-PSC members like John Leiba and Carlton Davis in the deliberations leading up to the nomination of Stephen Vasciannie (para. 19)

* an adverse judicial review of the PSC's decision to retire Lackston Robinson in the public interest; attempting to "destroy" the reputation of Lackston Robinson by removing him from his post at the AG's Department; (paras. 9, 20)

* bias in the treatment of Douglas Leys' application for SG vis a vis Stephen Vasciannie's application (paras. 9, 20); this bias was supposedly aggravated by the fact that Pauline Findlay and Michael Hylton have a "personal relationship" (para.9;); that this factor militated against Douglas Leys' application because Michael Hylton (as SG) had recommended Lackston's removal and Douglas Leys had opposed it.


Very curiously, at paragraph 22 of this affidavit, the Prime Minister clearly states that:

"I took the view...and remain firmly of the view that all these matters constituted misbehaviour on the part of the members of the Public Service Commission...which destroyed any possible working relationship based on trust and confidence that ought to exist between the Commission and the Government..."

This sentiment is largely reproduced in paragraph 4 of the joint press release. In the absence of any evidence to the contrary, it seems fair and reasonable to infer that the PM has not altered his fundamental position that the ex-PSC members were guilty of misbehaviour that warranted their dismissal. Notions of working relationships, trust, confidence have no relevance to the legal question of whether the ex-PSC members were justifiably dismissed or not. In any event, the supposed decomposition of the relationship between the Commission and the government was prompted entirely by the government's unlawful resistance to the Commission's selection of Stephen Vasciannie as SG. In both the affidavits of the PM and the AG, the implication is clear that the PSC would not have been fired had they simply acceded to the AG's demand to 'reconsider' the nomination of Stephen Vasciannie.

I previously already addressed the PM's ridiculous claim regarding the Lackston Robinson litigation. It is worth emphasizing that this litigation occurred a year before the PM took office, and there is no record of the PM alleging misbehaviour against the PSC while he was Leader of Opposition. The very notion that an adverse judicial ruling is now ground for dismissal is an extremely dangerous precedent to set, something which appears to have eluded the Jamaican intelligentsia and public on a whole.

As I said on RJR last week, the PSC litigants have regrettably opted to treat this litigation as some sort of private dispute between themselves; and in the process completely ignoring the public interest implications of so doing. The actual terms of the settlement are confidential and the parties are enjoined from discussing any aspect of the settlement publicly. The failure of the PSC to pursue this litigation means that the Supreme Court of Jamaica has been deprived of the opportunity to pronounce on the critical constitutional and legal issues arising, particularly, the question of "misbehaviour". Other issues that have gone by the way side include the question of whether the PSC members were afforded natural justice before dismissal.

Instead of acting in the national interest, the PSC has left Jamaica with a prime ministerial definition of "misbehaviour" which the current PM and his successors will be free to apply until and unless they are restrained by judicial intervention.

To add insult to injury, former PSC member Alfred Sangster has wasted no time in characterizing his erstwhile colleagues as "arrogant and stupid" for daring to stand up (initially) to prime ministerial tyranny. According to a Gleaner report of December 09, 2008, Sangster identified disagreements with the PM and the treatment of Lackston Robinson "were areas in which the public service commission was in fact arrogant and in my view, stupid, at times, and really should have had a lot more dialogue with the PM."


Sangster has removed any doubt about the who owns his balls. And it ain't him. Shamelessly, he allowed himself to be fired for "misbehaviour" when indeed at he wasn't even a PSC member at the time of the Lackston Robimson episode. Apart from that, he still pushes this dead cat nonsense as a ground for disqualifying Stephen Vasciannie from holding the position of SG. In this regard, he has continued to "sweat Bruce's fever" to borrow an expression from Belize. Golding himself has never asserted that Vasciannie's dead cat reference was a disqualification, so why does Sangster continue to take it upon himself to do so? And really now, if Sangster felt so strongly that his colleagues were going in the wrong direction, why didn't he simply resign before being fired?

On the other hand, I think the ex-PSC members deserve the opprobrium that has been heaped on them by Sangster. While I don't think they were arrogant or stupid, per se, their capitulation has left them entirely vulnerable to attacks of this kind. That for me, is stupid, if not arrogant.

All of the ex-PSC members including Sangster have betrayed the public interest.


Piously, Sangster welcomed the news of the "settlement" claiming that:

"I was praying that some solution would come and I am very happy that this has come, so people have to make friends again and people will have to restore relationships and dignity,".

As I have said in a letter to the newspapers (so far unpublished), Sangster has not indicated that his "praying" including an affidavit in support of the PM and the AG. So how does Sangster credibly claim to be favouring settlement when up to October 2008, he was a active participant in the litigation against his ex-colleagues? And how do you publicly trash your ex-colleagues and then expect people to "make friends again" and "to restore relationships and dignity"? Is this guy kidding me???


Almost a year ago, I started this blog perhaps in the vain hope of mobilizing, if not engaging public opinion on this crucial issue involving the rule of law, governance and constitutionalism. I said in my introduction that:


The rule of law in Jamaica is under serious threat, following the government's opposition to the appointment of Stephen Vasciannie as Solicitor General of Jamaica, and its subsequent dismissal of the Public Service Commission for alleged "misbehaviour".


Following the capitulation of the PSC, the rule of law is now under even greater threat. What strikes me as particularly sad and disappointing is the virtual lack of public outrage at this development. If the newspapers are anything to go by, only D.S. Morgan has expressed any disquiet over the capitulation of the PSC. See letter in Jamaica Observer, December 12, 2008: http://www.jamaicaobserver.com/letters/html/20081211t190000-0500_143608_obs__b_dear_editor___b_.asp


If the Jamaican public doesn't care about the rule of law in Jamaica, then perhaps the time has come for me to follow their example. I won't be updating this blog anymore unless there is some development that warrants it. I doubt that will happen.

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PSC litigation settled...much to my disappointment

The litigation initiated by the fired PSC members has been settled. I haven't gotten all the details of what prompted the parties to settle, but there is a story on the Gleaner/Power 106 website today on it. http://go-jamaica.com/news/read_article.php?id=5099.

I am disappointed at this outcome and will comment later on when more information is at hand.

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Abject Alfred

Alfred Sangster has filed an affidavit in defence of the PM and AG in the litigation brought against them by his erstwhile PSC colleagues.

The affidavit can be found at: http://www.scribd.com/doc/8526690/Alfred-Sangsters-Affidavit.

Sangster's affidavit demonstrates a comprehensive surrender of whatever was left of his backbone and indeed another part of his anatomy that is associated with manhood.

Sangster's affidavit largely elaborates on his earlier public excoriation of his PSC colleagues. Some of the salient elements of his affidavit are as follows:



1. Sangster supported Vasciannie's appointment as SG until his 'discovery' of Vasciannie's 'dead cat' comment. According to Sangster, he was unaware of this comment until he read about it in a Mark Wignall column published in December 2007.

2. After a round of meetings with the PM/GG, he claims that he prepared a letter of resignation dated November 26, 2007 (before seeing the dead cat comment, but was persuaded not to proffer it because of the implications of his "JLP" name. At paragraph 14, Sangster states that he supported Vasciannie's nomination until he discovered the dead cat comment. At a meeting of the PSC on November 26, 2007, Sangster confirms that he was part of a unanimous recommendation to affirm Vasciannie's nomination as SG.

3. Sangster claims that he tried to persuade his colleagues to reconsider Vasciannie's nomination in light of the dead cat comment, but without success. Incredibly, Sangster claims that Vasciannie had an obligation to disclose the dead cat comment, despite wide publication of the comment in 2002 in Vasciannie's own column in the Gleaner.


4. Sangster accuses Pauline Findlay of being "high-handed" in refusing to reconsider the nomination of Stephen Vasciannie (in light of the objections of the PM). For Sangster, Pauline Findlay's position established the PSC's position of "arrogance and non-retreat". Sangster states that Pauline Findlay's 'high-handedness' occurred at a meeting of the PSC on October 31, 2007 (following a meeting on the same day between the PSC and the PM).

5. Sangster further accuses the PSC of improper conduct in failing to reinstate Lackston Robinson in his position at the AG's Chambers. Sangster was not a member of the PSC when the Supreme Court quashed Robinson's retirement in the public interest. Sangster claims that the PSC's attempt to assign Robinson to the Tax Administration Department was "an attempt to circumvent the judgment of the Court".

6. Ultimately, Sangster accuses the PSC of misbehaviour for (a) their "arrogant position" to the Prime Minister "and in the decisions they made"; (b) their conduct with respect to Lackston Robinson. Sangster concludes that "it was unthinkable for me, and still is to become embroiled in a legal suit against the Prime Minister and tangentially the Governor General, which is in my opinion not in the public interest."


I so hope that the Claimants will ask for Sangster to be produced for cross-examination. It is quite obvious that Sangster was cowed by the PM's displeasure, forgetting (?) that the PSC doesn't exist to rubber stamp the directives of the executive arm of government. This is clearly revealed by Sangster's characterization of the PSC as arrogant for refusing to bow to the PM.

Sangster shamelessly parades the 'dead cat' comment as justification for reconsidering Vasciannie's nomination, despite the fact that he had endorsed Vasciannie even after his supposed letter of resignation of November 26, 2007. Sangster's discovery of the dead cat comment can after the meeting of November 26, 2007. What then was the reason for threatening to resign at a time when he was unaware of the comment, and indeed had already endorsed Vasciannie? Sangster himself says that he only changed his mind about Vasciannie after the dead cat comment (paragraph 14). Of what relevance was a five year old comment to Vasciannie's qualifications for the job of SG? Is Sangster saying that any criticism of politicians disqualifies competent professionals from holding positions in the public service??

If Sangster was so uncomfortable generally about the behaviour of the PSC, why didn't he simply resign without more?

The PSC's role in the Robinson litigation is one of the grounds of "misbehaviour" cited by the PM in firing the PSC members, including Sangster. As a matter of pride, one might have thought that Sangster would object to being indicted for misbehaviour, together with his former colleagues. Instead, Sangster ends up condemning his colleagues (and himself by extension), by obsequiously parrotting the PM's indictment of the PSC. Apart from this, Sangster wasn't part of the PSC at the time of the adverse judicial review against the PSC. On what moral or legal authority does Sangster pontificate on the implications of the ruling or the PSC's decision to transfer Robinson elsewhere?


In my view, the only PSC member guilty of 'misbehaviour' is Sangster himself. As a member of the PSC, he was obliged to exercise constitutional authority independently of the views or preferences of the Prime Minister or his surrogates. He was likewise obliged to exercise his authority unfettered by irrelevant, and indeed irrational considerations such as Vasciannie's so-called 'dead cat comment'. Sangster has revealed himself to be little more than a cowardly mouthpiece for the JLP government. In plain terms, Sangster is a damn disgrace, an embarrassment to the office that he held, and indeed to the national honour he holds.

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Judicial review hearing to start on December 8

It's been a while since I posted. In a month (December 8), the judicial review hearing is scheduled to start. I understand that the legal team representing the Daisy Coke et al will include Hillary Phillips, QC and Andre Earle of Rattray Patterson Rattray. Dennis Morrison was originally the lead counsel, but he has since been elevated to the Court of Appeal.

One hopes that the hearing will not be delayed. It is scandal that the applicants have had to wait for almost a year for a hearing. I will update the blog on this litigation as information becomes available.

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General update

PSC LITIGATION

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




NEW SOLICITOR GENERAL

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

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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

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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.

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Affidavit of Portia Simpson Miller

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

Read this doc on Scribd: AFFIDAVIT OF PORTIA SIMPSON MILLER AA2

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Court of Appeal decides interlocutory appeal in favour of PM

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

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



Barbara Gayle, in today's Gleaner recounts that:

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

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

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

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

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

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

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


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


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

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


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

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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.

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