D.S. Morgan raps Ken Chaplin

I just came across a letter by D.S. Morgan that was published in the Observer yesterday (April 28, 2008) that challenges Ken Chaplin's unfounded claim that there are PNP activists in the Attorney General's Department. The letter was in response to Ken Chaplin's column of April 22, 2008 entitled Budget debate: Davies challenging, Portia emotional.



D.S. Morgan's letter was in relation to the following excerpt of Chaplin's column:

Mrs Simpson Miller spoke strongly about the level of blatant political interference that has taken place with regards to the Public Service Commission, Attorney General's Department and the Solid Waste Management Authority. This position, I believe, presupposes that those who administer these agencies were independent and non-political, but they were not.

The commission, for example, is appointed by the governor general on the recommendation of the prime minister. Four of the five members of the commission were staunch supporters of the PNP, one of whom actively campaigned for the party for the September general election. The commission appointed many of the lawyers who are PNP supporters to the Attorney General's Department. Here she was on weak grounds. Unless there is a breakaway from this contrived political circle in the public service, the country will be in serious trouble.

In a previous post, I had adverted to Chaplin's predisposition for intellectual dishonesty. Again, he baldly asserts that four of the five fired PSC members were PNP supported who appointed PNP lawyers to the AG's Chambers. Ken has unashamedly become a mouthpiece for the JLP, in the process surrendering whatever journalistic integrity might once have been attributed to him. It is curious that Ken Chaplin completely ignores the blatant political interference of the JLP government a few weeks ago in the matter of the acting appointments of Nicole Foster-Pusey and Lackston Robinson.

D.S. Morgan was much kinder to Ken Chaplin than I would've been. Neverless,I entirely agree with his sentiments which I reproduce below:

Monday, April 28, 2008

Dear Editor,

I see that columnist Ken Chaplin persists in his view that there are PNP activists in the Attorney General's Department. It would be good if he would let us know who they are, as well as his evidence for viewing them as activists.

If Mr Chaplin can show that someone is indeed an activist, maybe he can enlighten us further as to the ways in which the "activism" has affected their professional performance, since that is implicit in his criticism of the Public Service Commission for making the appointments.

DS Morgan
Kingston 8

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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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More departures from the AG's Chambers?

Stephen Vasciannie's last day in the AG's Chambers was March 18, 2008. Patrick Foster, as has already been announced, will leave at the end of June 2008. I have now been reliably informed that Nicole Lambert, another senior member of the Chambers is expected to leave in April 2008. At least two or three more resignations are rumoured to be forthcoming.



The AG's partisan campaign of 'shock and awe' is clearly resulting in a 'surge' of resignations and departures, to the detriment of the people of Jamaica. It is no secret that the AG considered that the Chambers had been 'infected' by so-called "PNP" lawyers, and thus, the shock and awe campaign to purge them. Dorothy Lightbourne has diplayed a virulent partisanship that I never suspected was in her. I have known her for many years, and never saw this side to her. Dorothy is fundamentally a weak and insecure lawyer who has no respect for the institutional history of the AG's Chambers, nor for the professionals who staff it. She seems particularly threatened by those who are palpably more competent than she is. So she resorts to tearing them down. She has contrived to have a Public Service Commission that will rubber stamp her whims. Loyalty is her bottom line, not competence. What a tragedy for the the Chambers. What a tragedy for Jamaica.

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Updated chronology -January 13, 2008 to February 25, 2008

My good friend has again usefully composed an updated chronology,this time from January 13 to February 25, 2008. I very much appreciate the efforts of my friend.



Jan. 13, 2008 The Sunday Gleaner publishes an article by Lambert Brown headed “Justice, Truth and the PSC”, in which Brown points out that neither law nor convention requires Public Service Commission members to resign when the Government changes.

Jan. 13, 2008 The Sunday Gleaner publishes an article by Ian Boyne headed “Vasciannie and our Political Culture”; Boyne argues that “(o)ne of the most reprehensible and repulsive arguments being used against the appointment of Stephen Vasciannie as Solicitor General is the fact that six years ago he harshly criticized Bruce Golding, likening his return to the Jamaica Labour Party (JLP) to a dead cat being tossed on a deck.”

Jan. 15, 2008 The Daily Observer publishes an article by Ken Chaplin under the heading “What’s Going On in the AG’s Dept?” in which he criticizes the Executive Committee of the Attorney General’s Chambers and discusses the question of payments to lawyers in the Chambers for private work.

Jan. 17, 2008 The Gleaner publishes an editorial under the heading “Arrogance, Power and Matters of Justice” concerning mainly the case of Michael Bennett, a caretaker wrongfully dismissed by the St. Elizabeth Parish Council. The editorial comments on the importance of natural justice and states: “…(T)he Michael Bennett cases will, hopefully, inspire a new metaphor for the administration, given its clumsy objection to the installation of Professor Stephen Vasciannie as the Solicitor General and the subsequent firing of the Public Service Commission.”

Jan. 19, 2008 The Daily Observer publishes a letter from O. Hilaire Sobers entitled “The Attorney General, the Constitution and the Rule of Law” which challenges Attorney General Lightbourne’s perspectives on her role in the appointment of personnel in the Attorney General’s Chambers.

Jan. 19, 2008 The Daily Observer publishes a letter from D.S. Morgan entitled “Strange ‘Official’” which points out various discrepancies in Ken Chaplin’s article about the Attorney General’s Chambers published in the Daily Observer on January 15.

Jan. 20, 2008 The Gleaner publishes, as its Letter of the Day, a letter from L.L. Ventour headed “A Daniel Come to Judgement” in which he argues that any objection to Professor Vasciannie’s appointment is not because of Vasciannie’s “dead cat” comments about Bruce Golding’s return to the JLP in 2002.

Jan. 27, 2008 The Public Service Commission re-advertises the post of Solicitor General in the Sunday Gleaner.

Jan. 29, 2008 The Gleaner publishes a front page story headed “PSC Misbehaved: Former Commission Member Sangster Supports Firing Body”. The Gleaner also published front page comments by Cabinet Secretary Carlton Davis on the PSC issue under the title “…Whole Case Handled Poorly, says Davis”. On page 3, the Gleaner reports that “Sacked PSC Members Take Golding to Court”. This report indicates that Daisy Coke, Mike Fennell, Edwin Jones and Pauline Findlay have sought leave to go to the Judicial Review Court to quash the recommendation of the Prime Minister that they be fired for misbehaviour.

Jan. 22, 2008 The Daily Observer publishes a letter from O. Hilaire Sobers headed “Withdraw Partisanship Accusation, Ken”, challenging Ken Chaplin’s suggestion that lawyers in the Attorney General’s Chambers are biased in favour of the People’s National Party.

Jan. 29, 2008 The Daily Observer reports on page 3 that “Four Ex-PSC Members Sue Prime Minister”

Jan. 30, 2008 The Gleaner publishes, as its Letter of the Day, a letter entitled “The primacy of ministers in gov’t administration” by Ken Jones.

Jan. 31, 2008 The Gleaner publishes a letter by O. Hilaire Sobers under the heading “Sangster and the PSC” noting various problems inherent in the approach taken by Dr. Alfred Sangster with respect to the Public Service Commission.

Feb. 2, 2008 The Daily Observer publishes a letter by O. Hilaire Sobers under the heading “Why Now, Dr. Sangster?” criticizing the approach taken by Dr. Sangster. Among other things, Mr. Sobers asks: “(I)f Dr. Sangster felt so strongly about the “misbehaviour” of his colleagues, why didn’t he say so before? Why now, when his erstwhile colleagues have launched a legal challenge to their dismissals. Why didn’t Dr. Sangster resign instead of waiting to be fired?”

Feb. 3, 2008 The Sunday Observer publishes a front page story under the headline: “’PM was Angry’: Golding Accused PSC of Wanting to Shove Vasciannie Down Govt’s Throat, says Coke”. The report draws from the affidavit filed by Daisy Coke, Chairperson of the PSC, on the issue of Professor Vasciannie’s selection for the post of Solicitor General.

Feb. 3, 2008 The Sunday Gleaner publishes, as Letter of the Day, a letter from former Attorney General A.J. Nicholson entitled “Sangster Lets the Puss Out of the Bag” which discusses the reasons advanced by the Prime Minister for dismissing the PSC and points out that Alfred Sangster had admitted that the so-called “dead cat” argument influenced his thinking on whether Professor Vasciannie should be appointed as Solicitor General. Senator Nicholson suggests that this adds to the tangled web that the Government has weaved in the PSC matter.

Feb. 3, 2008 The Sunday Observer publishes on page 3 a story entitled “Gov’t Axes Vasciannie from Air Policy Committee”, noting that Professor Vasciannie has been dismissed from the Air Policy Committee although the letter of dismissal praises the professor for his “tremendous work” which “will be a pillar on which the new committee will be able to build”.

Feb. 5, 2008 The Daily Observer publishes an editorial entitled “Why this Animosity towards Professor Vasciannie?” The editorial suggests there is bias against Vasciannie, notes that the Government has handled the matter poorly, points out that Vasciannie is the candidate best qualified for the post of Solicitor General and links the PSC matter to the dismissal of Vasciannie as Chairman of the Air Policy Committee.

Feb. 5, 2008 The Daily Observer publishes a letter by Alison Irvine under the heading “Is It Personal, Mr. Golding?”, in which Ms. Irvine links the dismissal of Vasciannie from the Air Policy Committee (and his replacement by Noel Hylton) to the PSC matter. Ms. Irvine also points out that in December 2005 the Police Service Commission had sought to retire Inspector Donovan “Hux” O’Connor, but that this decision was found by the High Court to have no legal basis. The Chairman of the Police Service Commission in December 2005 was Noel Hylton.

Feb. 11, 2008 The Gleaner publishes a story under the heading “Stand Up To Them! Permanent Secretaries Urged to be More Forthright Despite Existing Threat of Political Victimisation”.

Feb. 11, 2008 The Daily Observer publishes a letter from Rev. Dr. Mervin Stoddart under the heading “Very Principled Stance, Dr. Sangster”.

Feb. 11, 2008 RJR reports that the closing date for applications for the readvertised post of Solicitor General is February 11, 2008, and that as of Friday, February 8, only Douglas Leys had applied for the position.

Feb. 14, 2008 The Daily Observer publishes a story entitled “Why Hylton, and not Vasciannie, is the Right Man”, concerning the appointment of Noel Hylton to the position of Chairman of the Air Policy Committee of the Jamaican Government.


Feb. 25, 2008 RJR reports that Douglas Leys is the sole candidate for the re-advertised post of Solicitor General; RJR further reports that neither Professor Vasciannie nor Patrick Foster had re-applied for the position.

Feb. 25, 2008 The Gleaner reports, under the heading “DPP, Solicitor General Interviews This Week”, that only one Douglas Leys has applied for the post of Solicitor General.

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"New" PSC to interview candidates for the positions of Solicitor General and DPP this week

According to a news story in today's Gleaner (Feb 25, 2008), the new PSC (I prefer to call it the "pseudo-PSC") will, during the course of this week, be interviewing candidates for the posts of Solicitor General and Director of Public Prosecutions.

Douglas Leys is reported as the only applicant for the job of Solicitor General. However, during Nationwide News Network's "This Morning" programme today, Emily Crooks and Naomi Francis indicated that another candidate has belatedly submitted an application. They did not reveal the identity of this applicant, but promised to do so shortly.



The short list of applicants for the position of DPP are:

Paula Llewellyn (currently Senior Deputy DPP)

Terrence Williams (currently DPP of the British Virgin Islands, and formerly a prosecutor with the Jamaican Department of Public Prosecutions); and

Hugh Wildman (currently an adviser to the government of Grenada, and a former DPP of Grenada). Like Terrence Williams, Hugh Wildman was also previously a prosecutor in the Jamaican Department of Public Prosecutions.

As is well known by now, the Prime Minister's decision to dismiss the Coke-PSC has been judicially challenged by the Leader of the Opposition and four of the dismissed Public Service Commissioners. If the courts find that the dismissal of the Coke-led PSC was unlawful, then this must ultimately affect the legality not only of the new PSC, but any appointments made pursuant to its recommendations. I wonder whether the applicants for these positions have contemplated this possibility.

I had heard some time ago that the government was actively courting Hugh Wildman for the position of DPP. Hugh and I are batchmates, having both graduated from the Norman Manley Law School in 1988. Hugh is fierce prosecutor, but has proven to be extremely controversial/contentious. He is the only person I know who has managed to provoke lawyers (in Grenada) to take to the streets when the government of Grenada wanted to appoint him Attorney General. While Hugh and I get along quite well, the truth is that he has had a history of alienating fellow professionals both in Jamaica and Grenada. I don't question his competence as a prosecutor. However, I don't see Hugh as having the interpersonal and other skills necessary to successfully lead the Department of Public Prosecutions.

Terrence is a solid prosecutor too, but for my money, Paula Llewellyn is the best qualified of the lot. The Department of Public Prosecutions needs a leader who is not only a technically proficient prosecutor, but who has the interpersonal skills to rebuild staff morale, something which appears to have been damaged during Kent Pantry's tenure as DPP. In November 2002, the Public Service Commission appointed a panel led by David Muirhead, QC to probe the administrative functions of the Office of the Director of Public Prosecutions, following press reports of organizational disharmony. One source of this disharmony appears to have been lack of a clear system of appraisal or opportunities for promotion. Paula Llewellyn herself acted as Senior Deputy Director of Public Prosecutions for years before she was ultimately confirmed. In 2003, prosecutors took industrial action to protest the lack of implementation of recommendations made by the Muirhead committee with respect to improved systems of appraisal and promotion. While the problems of the Department of Public Prosecutions cannot all be attributed to the outgoing DPP, his successor will have the challenge of infusing the Department with an esprit de corps that has been missing for some time. I don't see any of the applicants but Paula Llewellyn having the capacity for this.

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Second and final exchange with Dr. Stoddart

Here is the final instalment of my exchange with Dr. Stoddart.




My first email to Dr. Stoddart of Feb. 13, 2008
Thank you for your reply, Dr. Stoddart. If you have not already done so, I would suggest that you read the affidavit of Daisy Coke, which I believe sets out a clear and compelling chronology of the PSC/Vasciannie saga. The Sunday Observer of February 3 had a lead story based on this affidavit, which has not been so far been publicly denied by Dr. Sangster. For ease of reference, the affidavit can be seen here: http://www.scribd.com/doc/2034515/affidavit-coke-daisy.

While you are more than entitled to defend Dr. Sangster, I do think that it behooves you to do so on the basis of established facts, and not personal affiliation. I note that you have not addressed, much less controverted any of the facts that I adduced in my initial response to you.

Again, I am surprised that you placed the burden of this imbroglio on Prof. Vasciannie's shoulders, when indeed he did nothing more than fairly compete for and win selection for the post of Solicitor General, something which he was entitled to do. I am puzzled by your recommendation that Prof. Vasciannie should have withdrawn and then sought arbitral or judicial recourse. Again, you appear intent on exempting the government from any responsibility for creating this situation in the first place. It is the government that deliberately chose to flout the law, not Prof. Vasciannie. It is the government's flagrant assault on the rule of law that created this mess; not Prof. Vasciannie's 'failure' to withdraw. A Solicitor General is, among other things, expected to stand up for, and uphold the rule of law. As a candidate/selectee for this position, what message do you think Prof. Vasciannie would have been sending if he withdrew in the face of this assault on the rule of law?

Generally, I don't think that Jamaica can afford to squander a talent like Stephen Vasciannie. It seems to me that you have overlooked this dimension in your consideratio of this issue. The government's behaviour (and indeed Dr. Sangster's) is hardly likely to be conducive to attracting young, bright, competent professionals to the public service. Your position implicitly endorses the alienation of talent in favour of placating personality. If your conscience can live with that, so be it. You will definitely have the Jamaica you deserve.

Best regards,


Hilaire Sobers

_____________________________________________________________________________________

Dr. Stoddart's reply (Feb.13, 2008)

Dr. Sobers:

Thanks for the link to Commissioner Coke's affidavit. I read the document thoroughly and it has now concretised my position that Dr. Vasciannie should have withdrawn his name from contention from the very minute that Attorney General Lightbourne objected to working with him.

I have been in similar situations on various sides of a saga of this nature. Whether or not I had much to contribute to the organization, my primary concern was for peace and reconciliation, and I would not insist on placing myself in a messy situation even on a matter fo principle. That matter of principle I would have dealt with but not trying to get the office where other vital people with whom I would have to work did not wish to work with me.

I am now extremely surprised that following the first meeting with the PM none of the PSC members had the common sense to see that if both AG Lightbourne and PM Golding objected to Dr. Vasciannie's appointment then they should have got to work making a different recommendation to the Governor General!!! Preferably starting from scratch and not giving in to the AG's insistence on Leys nor the PM's insistence on Foster. Seek the high road of compromise.

How could a government work well with both the AG and the PM objecting to the Solicitor General's suitability, for whatever reason? The smooth functioning of the government is as important as justice being done for Dr. Vasciannie. When the controversy developed, it was immediately important to seek both (smooth government function and justice for Dr. Vasciannie) in different forums.

The details from Commissioner Coke re the Lackston Robinson matter clearly showed that more efficient rules must be put in place to avoid playing party politics and personality power play with vital government appointments. It also shows that some single person must be given veto power in cases where significant deadlocks occur. Of course, we have the courts but if litigation can be avoided it should be.

I think the GG has veto power in appointing the SG, given what I have read, that the PSC's recommendation is just that, a recommendation. However, I'll leave that to the attorneys.

I could have sat down and commented point by point to the issues that you raised but I chose to make an overall assessment of the situation and now conclude from reading Commissioner Coke's affidavit that Dr. Vasciannie should have stepped in and withdrawn his nomination. Whatever misconduct or other problems existed on the part of the government or the PSC could have been dealt with in less public and more efficient manners. I smelled political "fishiness" in both the SG and Lackston Robinson issues, based on reading Commissioner Coke's affidavit. Thus, more efficient rules must now be put in place to avoid such mess in the future. Now, let the courts decide what is just. God bless.
-M. Stoddart

P. S. I know both Dr. Sangster and attorney Robinson personally and can vouch for their impeccable Christian characters.

_____________________________________________________________________________________


My follow-up to Dr. Stoddart of February 13, 2008


Dr. Stoddart:

Based simply on the affidavit, please tell me how and when Dr. Vasciannie would've known that the AG objected to his selection? I see nothing in the affidavit that indicates that the AG's objection was directly communicated to Dr. Vasciannie. Based on my own inquiries, I understand that the Attorney General had very cordial relations with Dr. Vasciannie up to the time that the PSC recommended his selection as SG. As you are aware, Dr. Vasciannie is a Deputy Solicitor General. Accordingly, I am even more perplexed by your insistence that Dr. Vasciannie should've withdrawn.

Once again, your critique of the PSC's recommendation of Dr. Vasciannie (in the face of objection by the AG/PM) betrays either an ignorance of, or contempt for the rule of law. I have repeatedly stated that the selection of public service officers is constitutionally outside of the remit of politicians. Do you not see the implications of allowing the political directorate to dictate appointments to the public service? If the political directorate is permitted to dictate who should be Solicitor General, why shouldn't they similarly be allowed to dictate selection of judges, police officers, et al? Do you not understand the design of Jamaica's constitution that expressly confers this power on Service Commissions? Following your argument, why not simply abolish these commissions and leave all of these appointments to be made by the political directorate of the day? For a man who applauded Dr. Sangster for his 'principled stance', you appear to be remarkably permissive with respect to the government's palpable failure in this regard. Perhaps, it has eluded you that the erosion of the rule of law is but the first step towards totalitarianism. In essence, this is what you argument boils down to: that the government should be allowed to do as it pleases without reference to the rule of law.

Dr. Stoddart, for your information, the GG has no discretion to veto a recommendation from the PSC or any other Service Commission. This is well established in constitutional/public law. As a matter of law, the GG has no discretion to reject any 'recommendation' or 'advice' that comes to him from any other constitutional functionary. Service Commissions are themselves appointed by the GG on the advice of the Prime Minister after consultation with the Leader of the Opposition. The GG, by law, MUST act on the advice tendered by the PM. There is no question of discretion on the part of the GG in deciding whether to accept the PM's selection of commission members. If you wish to read further on this, I would recommend Caribbean public law scholars like Lloyd Barnett, Albert Fiadjoe, Ralph Carnegie, and Francis Alexis. Areas in which the GG can exercise discretion is very limited, for example, the selection of his Privy Counsellors.

I am not sure how read 'party politics' and 'personality' into the situation of Lackston Robinson, as you suggest. It's really quite simple. Lackston Robinson was retired in the public interest as well as sent on leave. This followed an adverse performance review by the then Solicitor General. The Supreme court held that the decision to retire/send him on leave was wrong. The PSC was at all times entitled to retire Mr. Robinson in the public interest, provided that it did it in accordance with the law. Following the judgment, the PSC did not take this approach, and instead sought to place Mr. Robinson elsewhere in the public service. Mr. Robinson has objected, and followed this up with another round of litigation. That's all there is to it. Interestingly, you appear to ignore the clear play of politics and personality in the government's opposition to Stephen Vasciannie.

With all due respect, Dr. Stoddart, the "Christian" character of Dr. Sangster and Mr. Robinson is completely irrelevant to the issues at hand. Frankly, I don't really care what their religious beliefs are. What I do care about is compliance with the rule of law which protects all of us, regardless of our religious, political or other persuasions.

Best regards,

OHS

_____________________________________________________________________________________

Dr. Stoddart's final response of Feb. 13, 2008

Dr. Sobers:

Many of the questions you raised have been already answered by me or by others whose comments have been published in the press or in the affidavit of Commissioner Coke. The ultimate answers will come from the courts as this matter is litigated and decided.

I admire your passion for the rule of law and I have much confidence in the Jamaican justice system, having worked in it myself. However, in your haste, you often overlook a few obvious points, e.g., the fact that there was obvious political power play and personality clashes in the Dr. Vasciannie v. the AG and the Dr. Vasciannie v. the PM situations, as I analysed them.

There are a few judges and attorneys whom I know personally, including some who once were legal advisors to PM Patterson, to AG Nicholson, to Minister Phillips, et al, upon whom I could call to interpret that matter re the GG's options when "recommendations" have been given to him but this Dr. Vasciannie matter will be decided in the courts and we will all live with the courts' decisions.

Having not yet met him, I can only say that Dr. Vasciannie seems like an honourable man, from all that I have read, and I am sure that he too will do all within his power to see that justice is done. Having known Dr. Sangster and Attorney Robinson for many years, I can vouch for their impeccable Christian characters (more ethics than religion here). I still maintain very strongly that I would have withdrawn my name from recommendation, had I sat where Dr. Vasciannie sat, and then proceeded to seek justice in some other forum. The nation's business must go on and I pray that all three-- smooth government operation, justice for Dr. Vasciannie, and for the dismissed members of the PSC-- will be achieved. I have no doubt that your erudite participation in the public debate will help Jamaica to make corrections where necessary and perhaps avoid such a mess in the future. God bless.

-M. Stoddart

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Very principled stance, Dr. Sangster- letter to Observer on February 11, 2008 by the Rev. Dr. Mervin Stoddart

The Rev. Dr. Mervin Stoddart paid tribute to Dr. Sangster's 'principled stance' in not joining with his erstwhile colleagues in challenging the PM's decision to fire them. See: http://jamaicaobserver.com/letters/html/20080210t180000-0500_132386_obs_very_principled_stance__dr_sangster.asp


I had an exchange with Dr. Stoddart, which is set out hereunder:



MY EMAIL TO DR. STODDART OF FEBRUARY 11, 2008


Dr. Stoddart,

For a self-described man of the cloth, I find your concept of principled behaviour to be incomprehensible to say the least. In your panegyric to Dr. Sangster in today's Observer, you 'salute' him for his "very gentlemanly and honourable stance concerning the dismissal of PSC members by Prime Minister Bruce Golding". You claim that "Dr Sangster's principled stance in the PSC saga was based on that body's seemingly unjust treatment of attorney Lackston Robinson".

My first question to you would be this: if Dr. Sangster was as principled as you claim, why didn't he express these views earlier? Why now? If didn't he resign, rather than allow himself to be fired with the rest of the PSC members? Why didn't he express these views in any of the meetings that he and his colleagues had with the Prime Minister prior to their dismissal? With respect to the Lackston Robinson issue, why didn't Dr. Sangster protest his dismissal on this ground, given that he was not a member of the PSC that originally made the decision to retire Lackston Robinson in the public interest? Is this your idea of "principled behaviour'?

Apart from your questionable notions of principle, you (and Dr. Sangster) are quite wrong on some of the critical facts. Firstly, there was never any order of reinstatement regarding Lackston Robinson. If you have not seen the judgment of Mr. Justice Jones, I urge you to read it for yourself. Perhaps neither you nor Dr. Sangster understand the import of this judgment, which was simply that the decision of the PSC to retire Lackston Robinson was wrong in law, because of a failure to follow certain legal procedures. What you may not know is that the PSC was more than entitled to repeat the process of retiring Lackston Robinson, provided that it complied with the law in so doing. Instead, the PSC took the advice of the Attorney General's Chambers in seeking to transfer Mr. Robinson to another position in the public service, something that the PSC is in law, authorized to do.

In your praise of Dr. Sangster's 'principled stance', I note that you omitted any reference to Dr. Sangster's preoccupation with a 'dead cat reference' made by Dr. Vasciannie in 2002 with respect to Bruce Golding's return to the JLP. Dr. Sangster himself admits that this concern arose only AFTER he and his colleagues had already signed off on Dr. Vasciannie's selection as Solicitor General. The essen

The essential implication of Dr. Sangster's thinking is that Stephen Vasciannie should have been denied selection as SG, not because of lack of qualifications, but for a public criticism of Bruce Golding made in 2002! A further implication of Dr. Sangster's position is that the PSC should have deferred to some imagined prejudice on the part of the political directorate, in plain violation of the constitution of Jamaica. Now, Dr. Stoddart, does this represent "principled" behaviour? Dr. Sangster claimed, without substantiation, that Dr. Vasciannie's previous commentary could "create strained relations" between Dr. Vasciannie (as SG) and the Prime Minister. Again, is this what you seriously consider as "principled"?

In your world of principle, Stephen Vasciannie ends up being the scapegoat for failing to withdraw himself as a candidate. In my world of principle, Dr. Stoddart:

1. Stephen Vasciannie was lawfully selected to be the next Solicitor General,; there is therefore no rational or legal basis for him to have withdrawn. He like any other Jamaican, is entitled to the protection of the rule of law, something that doesn't appear to matter in your world of principle.

2. This "sordid, unfortunate affair" as you put it, has nothing to do with Dr. Vasciannie's failure to withdraw, but with the government's failure to honour the constitution and the rule of law. The constitution and the rule of law represent the supreme 'principles' in a democracy, which again, do not appear to have a place in your world of principle. It is beyond debate that the PSC was entitled to select the Solicitor General without political interference.

3. Violation of principles have consequences. An immediate consequence is the politicization of the Attorney General's Chambers, something that has never happened in the Jamaica's 45 + years of independence. Anybody selected by the 'new' PSC' to be SG cannot escape being labeled as a 'JLP' functionary, instead of an independent public official. The new PSC itself, cannot avoid this label.

In my world, Dr. Sangster is no Daniel walking choosing to walk into the den of lions. In my world, he is a coward who ran at the first roar.

Best regards,

O. Hilaire Sobers


_____________________________________________________________________________________

DR. STODDART'S RESPONSE OF FEBRUARY 12, 2008


Dear Dr. Sobers:

Thanks for your very well reasoned feedback. Although it was sometimes caustic, I elected to absorb the acidity and focus on your rationale for taking the stance that you so eruditely expressed in your previously published newspaper article and which you explained again to me in your email.

I have read at least 20 articles and listened to other discussions on the PSC issue. I can't remember any comment from Dr. Vasciannie, except maybe a mild reference in some speech to a group. I read Dr. Sangster's published comments and did my own analysis, coming to the conclusions that I expressed in my Observer letter.

You and I take opposing positions re Dr. Sangster's stance, obviously. I have chosen not to write an article and not take a stance on the Vasciannie appointment nor the dismissal of the PSC, except the inferences that could be drawn from my position on Dr. Sangster's stance. I prefer that the courts make their rulings and I privately mused, like Dr. Carlton Davis expressed publicly, that the whole thing was a tragedy that should have been handled differently. I made one suggestion on how it might have been handled differently, namely, Prof. Vasciannie withdrawing his nomination (for the sake of peace). Why would anyone want to assume a post which before it even began was surrounded by mess?

That dead cat story was not very relevant for my opinion on Dr. Sangster's brave stance but whatever might be the reason for the apparent differences between PM Golding and Dr. Vasciannie, I think our country might have been best served if the professor had withdrawn and then taken his protests to arbitration or court or some forum where justice could be considered. So far, however, I have read nor heard nothing to suggest tht Prof. Vasciannie is behind the lawsuit brought by PM Portia and the dismissed PSC members. God bless.

-M. Stoddart



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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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One application for post of Solicitor General -RJR -Feb.08, 2008

RJR confirms that the only applicant so far for the post of Solicitor General is Douglas Leys. One working day remains for applications to be submitted. RJR also reports that neither Patrick Foster nor Stephen Vasciannie have re-applied for the post.


http://www.radiojamaica.com/content/view/5359/26/

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Recent newspaper advertisement for applicants for position of Solicitor General

Here is a recent newspaper advertisement by the Public Service Commission seeking applications for the post of Solicitor General.

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PSC Court documents

I have uploaded the court documents filed by the dismissed PSC members (except for affidavit by Mike Fennell). The links to these documents are on the home page of the blog. The main affidavit by Daisy Coke is available here:



http://www.scribd.com/doc/2034515/affidavit-coke-daisy

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Letter of the day - Sangster lets the puss out the bag- Sunday Gleaner, Feb.03, 2008

Former Attorney General and Opposition spokesman on justice, Senator A.J. Nicholson, QC, has a letter in today's Sunday Gleaner commenting on Dr. Sangster's public support of the PM's dismissal of the PSC. http://www.jamaica-gleaner.com/gleaner/20080203/letters/letters1.html.




One of the critical points addressed by Senator Nicholson is Dr. Sangster's claim that he (Dr. Sangster) made "three attempts to have the PSC members review the recommendation but he was not successful in having it withdrawn". Sangster did this because he believed that "the utterances of Professor Vasciannie could undermine the potential relationship between the office of the solicitor general and the prime minister".

Senator Nicholson pointedly asks: "Who told him so?" I agree with Senator Nicholson that it "certainly could not be an unprovoked assumption on his part", and that the "prime minister has never publicly given this as a reason for his actions." Senator Nicholson asked this question in the context of the express reasons given by the PM for dismissing the PSC. The issue of interpersonal compatibility with Prof. Vasciannie was certainly not one of these reasons. Indeed, Daisy Coke's affidavit (reported on in the Sunday Observer of Feb 03, 2008) expressly states that the PM had no personal difficulty with Prof. Vasciannie.

A.J.'s view of Dr. Sangster, that he has 'let the puss out of the bag', is perhaps the most charitable thing that can be said about Sangster. For me, Sangster has not really let the puss out of the bag, so much as he has simply reconfirmed what was already quite clear: that Bruce Golding's dismissal of the PSC was prompted by arbitrary considerations, and not by the rule of law.

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Sunday Observer story on suit against PM by Daisy Coke, et al- Feb.03, 2008

The Sunday Observer has published an important story centred on the affidavit filed by Daisy Coke in the suit against the Prime Minister, challenging his dismissal of the PSC. It is definitely a must-read.

http://activepaper.olivesoftware.com/Repository/ml.asp?Ref=Sk1PLzIwMDgvMDIvMDMjQXIwMDEwMQ==&Mode=Gif&Locale=english-skin-custom

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Why now Dr. Sangster?

The Observer has also published my letter on Alfred Sangster and the

PSC:http://www.jamaicaobserver.com/letters/html/20080201T190000-0500_132065_OBS_WHY_NOW__DR_SANGSTER_.asp

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My letter appearing in today's Gleaner- "Sangster and the PSC"

Today, the Gleaner published my critique of Alfred Sangster's public condemnation of his erstwhile colleagues and his support of the PM dismissal of the PSC. Here is the link:



http://www.jamaica-gleaner.com/gleaner/20080131/letters/letters2.html

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Alfred Sangster breaks ranks

As has been reported in the news, Dr. Alfred Sangster has publicly defended the PM's dismissal of the Coke-chaired PSC, of which he was a member. According to Dr. Sangster, the PSC's failure to reinstate Lackston Robinson constitutes misconduct that warrants dismissal. He also pointed the failure of the the PSC to review its recommendation of Stephen Vasciannie (at Dr. Sangster's urging) after the Stephen Vasciannie's 'dead cat' reference came to his (Dr. Sangster's) attention.

Dr. Sangster's public utterances coincide with the commencement of litigation by his erstwhile colleagues to challenge the dismissal.




Dr. Sangster's pronouncements are disturbing, and indeed execrable. Firstly, he is factually wrong about the PSC's supposed failure to reinstate Lackston Robinson, given that the Justice Jones never ordered Mr. Robinson's reinstatement, when he quashed the PSC decision to retire Robinson in the public interest. Dr. Sangster has clearly acquainted himself with the judgment of Justice Jones, before attacking his former colleagues. Dr. Sangster has correctly pointed out that he was not a member of the PSC that was the subject of Justice Jones' judgment (the PSC was at the time made up of Daisy Coke, Pauline Findlay, Mike Fennell, Edwin Jones, and George Philip; Sangster replaced Philip when he died in April 2007)). One might have thought that pride alone might have impelled Dr. Sangster to protest his dismissal at least on this ground, given that he was not a member of this 'misbehaving' PSC.

One has to wonder why Dr. Sangster chose to speak at this time, or at all. While it is his prerogative not to join in the litigation, I see no rational or ethical basis for belatedly excoriating his colleagues, when he well knows that the matter is under litigation. I can only suspect that he was intent on prejudicing the minds of judges who may later be assigned to adjudicate on the claim of Daisy Coke, et al.

I can hardly believe shame has not prevented him from raising the 'dead cat' reference. He clearly stated that his concern arose only after the PSC had signed off on the recommendation of Stephen Vasciannie. The essential implication of Dr. Sangster's thinking is that Stephen Vasciannie should have been denied selection as SG, not because of lack of qualifications, but for a public criticism of Bruce Golding made in 2002! For me, if this is Sangster's mode of thinking, then he certainly had no place on the PSC. Sangster speculated that this commentary could create strained relations between the Stephen Vasciannie (as SG) and the Prime Minister. Naturally, of course, Dr. Sangster did not require any evidence to substantiate his position. Sangster reflects the very worst in Jamaican governance: the privileging of personality over principle, and not to mention, suss over hard evidence; loyalty to expedience over ethicality; and cowardice over conscience.

I have submitted a letter to the press on the issue, which hopefully will be published. I discussed the matter on the Breakfast Club yesterday morning with Trevor Munroe and Peter Espeut. Apparently Dr. Sangster had been invited on the programme, but declined.


Sangster should be ashamed of himself.

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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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Response to Laurie Ventour's letter of the day of Sunday, January 20, 2008

Laurie (L.L.) Ventour had a letter in the Sunday Gleaner of January 20, 2008, in which he blamed the PSC for the debacle involving Stephen Vasciannie. I had sent a response to the Gleaner which so far has not been published. I set it out below for your information.




January 21, 2008

Dear Editor,

I write in response to L.L. Ventour's letter of the day which appeared in the Sunday Gleaner of January 20, 2008.

Mr. Ventour blames the Public Service Commission for the imbroglio surrounding its selection of Prof. Stephen Vasciannie as Solicitor General. According to Mr. Ventour, there were "more than four 'strikes' against the then PSC, including breach of the spirit of convention - to offer their resignation en masse on the change of an administration and, in the absence of an appeal against the judgment, the possibility of a charge of contempt of court for their apparent refusal to reinstate an employee, but purporting to transfer him to another post, in what may be seen as clear defiance." According to Mr. Ventour, "No PSC should - nor could - continue in office with such baggage and controversy on its performance" because "It quickly leads to a perceived loss of moral integrity, authority and credibility".

Mr. Ventour's blame, in my view, is entirely misplaced. Firstly, there is no convention of resignations by Service Commissions upon a change of 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. If indeed a convention of resignations exists, why then didn’t the members of the Police Service Commission and the Judicial Service Commission resign after the new government took office in September 2007?

Contrary to prevailing public opinion, the PSC was never in contempt of an order of the Supreme Court. The judgment of Mr. Justice Jones quashed the order of the PSC to retire Lackston Robinson from the public service in the public interest. Many laypersons do not understand that the nature of the proceedings before Mr. Justice Jones was judicial review. What this means is that the court was concerned only with the legality of the PSC's decision, which it found to be unlawful. The judge did not expressly order the reinstatement of Mr. Robinson in the public service (or the Attorney General's Chambers in particular) because this would be tantamount to substituting his judgment for that of the PSC. Following the judgment, it was open to the PSC to repeat the process of retiring Mr. Robinson in the public interest, provided that it followed the legally prescribed steps to do so. It was also within the constitutional discretion of the PSC to reassign Mr. Robinson to another post in the public service, which indeed, it attempted to do. It should be emphasized that Mr. Robinson was unlawfully retired from the public service, and not the AG's Chambers, per se. It is therefore quite unfair to accuse the PSC of contempt of court or defiance, for doing precisely what they are lawfully authorized to do.

With due respect to Mr. Ventour, the blame for this imbroglio is attributable entirely to the actions of the Prime Minister. Under Jamaica's constitution, the PSC has the exclusive authority over the selection of the Solicitor General. The Prime Minister chose to disregard the constitutional autonomy of the PSC, later firing the PSC members when they failed to alter their recommendation to suit his political preferences. It is palpably clear that the PSC members would not have been dismissed had they acceded to the PM's wishes.

Finally, I note that Mr. Ventour considered Prof. Vasciannie's 'dead cat' comment in his column to be "intemperate", and that history has ultimately "absolved Mr. Golding in this regard". Mr. Ventour's view betrays a misapprehension of the context in which this metaphor was used. At the time of Prof. Vasciannie's column (September 2002), general elections were due in October 2002. The 'dead cat' metaphor was applied to explain the effect of Bruce Golding's return to the JLP on the PNP's chances of returning to power. In simple language, Prof. Vasciannie was saying that Bruce Golding's return would cause some momentary concern on the part of the PNP, but would not ultimately hurt its chances of returning to power in the October 2002 elections. Given the outcome of the 2002 general elections, I do believe that history has absolved Prof. Vasciannie in this respect.



Yours truly,


O. Hilaire Sobers

Washington, DC

ohilaire@yahoo.com

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Press release by A. J. Nicholson, QC on reported plan to advertise post of Solicitor General

The Opposition spokesman on Justice, A.J. Nicholson, QC, issued a press release today in response to an earlier news report that the position of Solicitor General is to be advertised in two weeks. I already commented on this in a previous post. Mr. Nicholson was interviewed on RJR on "Beyond the Headlines". I was interviewed on the same programme shortly after Mr. Nicholson. It doesn't often happen, but this time, I entirely agree with the sentiments of Mr. Nicholson, as reflected in his press release, which I reproduce below.






NEWS RELEASE

The reported proposal for the position of Solicitor General to be advertised for a new functionary to be appointed threatens to move Jamaica into that group of countries where the provisions of their constitution – the basic law- may be flouted to meet the wishes of the leader of government.
The peoples of those countries have collectively come to rue the day that they first allowed that kind of incursion to take place.

It is not an easy road to turn back from, once it has been taken.

The Jamaican Constitution obliges the governor general to appoint a solicitor general when a recommendation is made to him by the Public Service Commission.

A properly constituted Commission made such a recommendation to the governor general, which for several months he has failed to act upon, in clear breach of the Constitution. This is obviously on the directive of the prime minister, the head of government, again in breach of the Constitution.

The governor general dismissed that Commission, on the directive of the prime minister. The legitimacy of that dismissal remains to be decided by the Supreme Court of Jamaica.

The prime minister then proceeded to have another Public Service Commission appointed, in a manner that clearly brushed aside the process which was negotiated and agreed upon in the Vale Royal Talks. So, the prime minister now has in place a Commission with four of its membership of five, selected directly by him, to recommend the appointment of a solicitor general, who must then be anointed by him, with a compliant governor general standing by.

Other such appointments will undoubtedly be made in the same manner to fill positions in the public service. The prime minister will then effectively be in control of the public service.

If we the people of Jamaica allow this to pass, we will come to rue our inaction. This is inimical to the workings of the system of Westminster style democracy, to which Jamaica and its people still subscribe. It would mark the beginnings of dictatorial rule.

Contact : A.J Nicholson
Opposition Spokesman on Justice
Tel : 941-1209
Date : January 22, 2008

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