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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Commentary on Sunday Gleaner editorial- The PSC and relative morality

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

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

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



April 27, 2008

Dear Byron,

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

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

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

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

Best regards,

Hilaire

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PM mentions PSC issue during his budget presentation

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




Public Service Commission

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

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

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

More anon.

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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

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

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




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

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

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


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

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

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

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More litigation by PM 2

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

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More litigation by PM

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

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My letter to the PM at the beginning of the crisis

November 01, 2007

The Hon. Bruce Golding, MP
Prime Minister of Jamaica
Jamaica House
1 Devon Road
Kingston 10

Dear Prime Minister,

I write to express my concerns over the apparent controversy surrounding the candidacy of Prof. Stephen Vasciannie for the post of Solicitor General. I understand that the government is not in favour of the recommendation of the Public Service Commission (PSC) that Prof. Vasciannie be appointed to this office. I gather that one of the principal concerns about Prof. Vasciannie is his supposed lack of litigation experience.

I fear that this imbroglio may have the effect of (a) damaging the office of Solicitor General; (b) undermining the Public Service Commission; and (c) alienating prospective (qualified) candidates for other public service positions.



To the best of my understanding and experience, the Solicitor General is essentially the permanent head of the Attorney General’s Chambers, analogous to a Permanent Secretary of a government ministry. The work of the Attorney General’s Chambers does include managing the government’s litigation, but it has never been my understanding that the Solicitor General must be a litigation specialist. I believe that the role of the Solicitor General is to manage the work the work of the Attorney General’s Chambers, which, I might add, includes more than just litigation matters. In the absence of any evidence to the contrary, I would assume that the PSC operated on the same basis in making its selection.

You have the constitutional right to ask the PSC to reconsider its recommendation. However, the PSC is not obliged to accede to your preferences. Based on the information available to the public, it appears that there is now an impasse between the government and the PSC because of its refusal to reconsider its recommendation of Prof. Vasciannie. Given that Prof. Vasciannie is hardly in a position to publicly defend his candidacy, I believe that this approach of the government is not only unfair to Prof. Vasciannie and the office of Solicitor General, but serves to undermine the constitutional role of the PSC. While it may not be the government’s intention, I have a perception that it is attempting to strong-arm the PSC into selecting another candidate. As you are undoubtedly aware, Prime Minister, the Service Commissions established by the Jamaican Constitution function (at least theoretically), to insulate public service appointments from undue influence by the political directorate of the day. I am concerned that this role is at risk of being undermined by the government’s opposition to the PSC on this issue. As you are aware, the Jamaica Constabulary Force is threatening to oppose any recommendation made by the Police Services Commission of any candidate that does not come from their ranks. Should this come to pass, I am not sure that the government would have the moral authority to demand compliance by the police of the Police Service Commission’s recommendation.

Prime Minister, at this juncture, Jamaica needs the input of its brightest and best minds to help fulfill the vision that you so eloquently articulated at your inauguration. Prof. Vasciannie undoubtedly represents one of those minds.

I would suggest that Prof. Vasciannie’s experience may have the effect of discouraging other young, bright professionals to apply for public service appointments, for fear of their candidacies being considered through the lens of partisan politics, rather than the lens of meritocracy and the rule of law.

Prime Minister, you have taken an oath to defend the Constitution and the laws of Jamaica. Accordingly, I would strongly urge you to take the necessary steps to protect the integrity of the office of solicitor general and the constitutional role of the PSC.

Yours truly,



O. Hilaire Sobers

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Unpublished letter to Jamaica Observer in response to its editorial on Dec 19, 2007

December 23, 2007

I write in respect of your editorial on December 19, 2007, entitled "Does Dr. Vasciannie want to be Solicitor General". This editorial largely reflects the intellectual moribundity that has beset Jamaican journalism. After six weeks of relative silence on the government's opposition to Prof. Vasciannie, you completely ignore the constitutional implications arising, preferring instead to "wrestle with whether in fact Dr. Vasciannie wants to be solicitor-general." Perhaps you might have saved yourself this intellectual torture by merely soliciting Dr. Vasciannie's view, or indeed simply inferred it by the fact that he has not withdrawn his name from the process.



The editorial entirely misses the fundamental point that the issues surrounding the selection of Prof. Vasciannie as Solicitor General have nothing to with his desire to be Solicitor General, but with respect for Jamaica's consitution and the rule of law. Speciously, you claim that the constitutional issues are amenable to multiple interpretations, as a justification for declining to express your own interpretation on what "the prime minister can or cannot do in respect of a selection by the Public Service Commission (PSC)".

Had you taken the trouble to simply read Jamaica's constitution and perhaps consult a lawyer, you might have discovered that there is no such multiplicity of interpretations. The constitution unambiguously deprives the Prime Minister of any role in the selection of a Solicitor General, giving this role exclusively to the PSC.

Equipped with this elementary understanding, it might then have occurred to you that prime ministerial confidence in the PSC's selection of Solicitor General, while perhaps ideal, is constitutionally irrelevant. Had you further made inquiry as to the constitutional purpose and design of the PSC, you might also have discovered that the political directorate is barred from interfering with public service appointments, so as to minimize, if not avoid the selection of public servants on a partisan basis.

Your aversion to diligent inquiry further leads you to assume that Prof. Vasciannie's disquiet with Mr. Golding's return to the JLP in 2002 not only established the existence of strained relations at that time, but that such alienation continues up to 2007. There is nothing in your editorial suggesting any effort to inquire of either Prof. Vasciannie or indeed Prime Minister Golding as to the status quo of their interpersonal relationship. Nothing in your editorial acknowledges that interpersonal alienation is not necessarily a permanent state, nor indeed does it necessarily preclude the co-existence of a professional relationship. Presumably, this is evidenced by a number of persons in the Prime Minister's administration who have previously been his detractors.

Quite fatuously, you suggest that this purported history of alienation between the Prime Minister and Prof. Vasciannie could possibly express itself in mutual mistrust, which in turn could manifest itself in sabotage or the suspicion thereof. If you knew anything about the functioning of the Attorney General's Chambers and the role and function of the Solicitor General, you would recognize that this is arrant nonsense. You seem to assume that the Solicitor General operates as some sort of personal lawyer to the Prime Minister when this is not so. The currency of lawyers is integrity and professionalism. It seems to elude you that it would hardly be in Prof. Vasciannie's interest to conduct himself in the position of Solicitor General, other than in conformity with the highest standards of integrity and professionalism. It might interest you to know that Prof. Vasciannie has been a Deputy Solicitor General for more than four years, during which his adherence to these standards have never been impugned either by the previous government or indeed the current government. Indeed, if you do a little homework, you will note that the current Attorney General has stated that she has no difficulty with him or his work in his current capacity.

Flippantly, you conclude that Prof. Vasciannie "Until and unless he and the prime minister kiss and make up, he cannot hope to attain the highest non-elected position in the Attorney-General's Office." The clear and dangerous subtext of this statement is that prime ministerial peeve trumps respect for the constitution and the rule of law. I wonder if you will be that flippant if or when the government decides to oppose the selection of a judge by the Judicial Service Commission or a senior police officer by the Police Service Commission.


Yours,etc

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