Douglas Leys to be new Solicitor General

RJR reports today that Douglas Leys is to be appointed the new Solicitor General. No surprises there, as he was the only applicant. The Attorney General has gotten her wish, at the cost of mutilating the rule of law. The real scandal, however, has been the complicity of the Jamaican public in failing to stand up against this flagrant abuse of power.

There is some irony in Douglas's appointment as Solicitor General. The Solicitor General is supposed to be an emblem of the rule of law, yet Douglas has allowed himself to be appointed in circumstances that violate the very rule of law itself. I can't see Douglas having a successful tenure as Solicitor General unless he is prepared to completely surrender his professional independence and integrity. We will see.

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Stephen Vasciannie & Patrick Foster to leave AG's Department

According to media reports, Deputy Solicitors General Patrick Foster and Stephen Vasciannie will be leaving the Atorney General's Chambers. Patrick Foster's resignation was first announced yesterday. His resignation takes effect on June 26, 2008. Stephen Vasciannie leaves at the end of March 2008 when his contract comes to an end. Not surprisingly, the government did not offer to renew Prof. Vasciannie's contract.



Patrick Foster, has been acting as Solicitor General since last year when the government objected to the PSC's recommendation of Stephen Vasciannie as the new Solicitor General. Patrick, together with Douglas Leys were the other two candidates considered for the position at that time. According to an RJR news report today, Patrick is leaving for 'personal reasons'. I suspect that Patrick has just had enough of the political turbulence wrought by the current Attorney General. I can't say I blame him.

The intent of the government, it appears, is to either purge or destroy the AG's Department, all in the name of politics. Jamaica can ill afford to lose the talent and experience of Stephen and Patrick, worse yet at the same time. I fully expect the Department to haemorrhage more talent before long. With the current PSC being beholden to the government, one can expect that the AG will soon have her wish of having loyalists instead of lawyers occupying her Chambers. As has been reported elsewhere, the Dorothy Lightbourne, in her capacity as Minister of Justice has appointed Sherene Golding, the PM's daughter to be her adviser on legislative reform, among other things. Ms Golding has no legal qualifications or experience, save for an undergraduate degree in law from Georgetown University. This is beyond farcical. Jettison Foster & Vasciannie, but elevate the Prime Minister's daughter.

There is a clear agenda on the part of the government to politicize the civil service. I have just received information that another ministry is being positioned to incorporate political loyalists in its civil service ranks. More anon on this.

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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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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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Commentary on SG advertisement

So far, I gather that the "new" Public Service Commission has received only one application from Douglas Leys in response to its advertisement for applicants for the post of Solicitor General. I can imagine that Amb.Rainford, et al must be scratching their heads wondering why no other contenders have presented themselves. Doesn't take a Ph.D. in astrophysics to figure out why there isn't a flood of applications piling up on Amb. Rainford's desk.

The advertisement represents a shameful repudiation of the rule of law. A lawful recommendation for the post was already made by the Coke-PSC, which remains unaffected in law, by the subsequent dismissal of that PSC in December 2007. On what legal basis can this pseudo-PSC pretend that this recommendation was never made? What legal basis can the Governor General refuse to act on the recommendation of the Coke-PSC, but then act on the recommendation of the pseudo-PSC on the same subject matter?



In my view, Stephen Vasciannie would definitely have a cause of action against the pseudo-PSC for its failure to acknowledge, much less respect his selection as Solicitor General. At the very least, I could see a case for some sort of injunction against the pseudo-PSC, restraining it from embarking on a new (and in my view, illegal) exercise to recruit and select a Solicitor General.

Despite the pending litigation to challenge the dismissal of the Coke-PSC, this pseudo-PSC has contemptibly set April 01, 2008 as the date for the new SG to take office. This reinforces the intent of the government to have its way, regardless of the outcome of court proceedings or the rule of law itself.

After all the song and dance about Stephen Vasciannie's so-called lack of litigation experience, the advertisement does NOT identify litigation experience as the principal qualification for the post of Solicitor General, or indeed at all! Appearing in major court matters is only mentioned as one of SEVEN of the core duties of the Solicitor General!

A good friend sent me an amusing response to the Solicitor General advertisement issued by the "new" Public Service Commission.


"Dear Sir/Madam,

One considers it appropriate to bring this advertisement to your
attention. One's understanding is that there has been some controversy
attendant upon earlier attempts to fill this position, but one verily
hopes that this will not deter candidates. One is obliged to note that
the core duties associated with the post include a considerable range of
matters, and that contrary to what may have been circulated hither and
thither the candidate's degree of seasoning in the field of litigation
is a factor, but not the only one, to be considered by the Public
Service Commission. At this juncture, one also considers it significant
to mention that the aforementioned Public Service Commission may or may
not retain its current composition as of the date when applications are
received. Some writers maintain that rules of the Constitution apply to
this position, but one wishes not to opine on this issue.

Yours faithfully,

"One"

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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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Douglas Leys re-applies for Solicitor General post - RJR - Feb 04, 2008

According to a news report from RJR, Douglas Leys has re-applied for the position of Solicitor General.

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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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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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"New" PSC has started advertising for SG

According to an RJR report today, the "new" PSC advertised today for applications for the post of Solicitor General. http://www.radiojamaica.com/content/view/4985/26/

The mutilation of the rule of law continues.

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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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Post of Solicitor General to be advertised (again!)

According to a news report today from RJR (http://www.radiojamaica.com/content/view/4821/26/), instructions have been issued for the post of Solicitor General to be advertised in the local press in the next 10 days.




Assuming the accuracy of this story, these instructions emanate from the "new" PSC, perhaps acting on the instructions of the government. This step reinforces the utter contempt that the government/"new" PSC has for the rule of law, and the pending judicial review litigation. As far as I am aware, the Coke-led PSC made a selection that was in accordance with the law. On basis therefore, can the Rainford-led PSC ignore the previous recommendation and commence the process of selection anew? If a new SG is selected by the Rainford PSC, what are the legal implications for his/her appointment, if the courts find that the Coke PSC was unlawfully dismissed? Would that not mean that all decisions and processes emenating from the Rainford PSC are inherently null and void?


The government's contempt for due process and the rule of law seems unbridled. This contempt has victimized Stephen Vasciannie, the Coke PSC, and not least of all the people of Jamaica. Lamentably, many Jamaicans are either indifferent to, or actively supportive of the government's contempt for the rule of law, and by extension, its contempt for the very same people. We just don't seem to get it.

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

Here is a commentary that I sent to Mark Wignall on a column of his that appeared in the Sunday Observer of December 02, 2007 http://www.jamaicaobserver.com/columns/html/20071201t170000-0500_129967_obs_election_win___but_little_power_.asp.





December 02, 2007

Dear Mark,

A few comments on your column appearing in today's Sunday Observer.

You stated:

The members of the PSC who met on October 2, 2007, were Daisy Coke, Mike Fennel and Pauline Findlay. Others who comprised the interviewing panel were Carlton Davies, cabinet secretary; and John Leiba, president, Bar Association of Jamaica.
According to the Jamaica Constitution, Chapter 10, Section 136, 2 - 'At any meeting of any Commission established by this Constitution a quorum shall be constituted if three members are present. If a quorum is present the Commission shall not be disqualified for the transaction of business by reason of any vacancy among its members and any proceedings of the Commission shall be valid, notwithstanding that some person who was not entitled so to do took part therein.'
I am no lawyer, but something in that section puzzles me. It states that a quorum constitutes three members. No problem with that. What I am at a loss in fathoming is this, 'If a quorum is present the Commission shall not be disqualified by reason of any vacancy among its members...'
Vacancy? Does the constitution mean 'absence'? I cannot see it meaning absence if there is a quorum. If 'vacancy' means that the PSC had recently lost one of its members, how would that bear on a matter or decision which was deliberated/made with a duly constituted quorum? And certainly 'vacany' could never bear any reference to the mental state of any member of the PSC.
But even if the section was making a reference to the three members who formed a quorum making a decision that they needed personnel to assist them in the interviewing process, what is the meaning of, ... any proceedings of the Commission shall be valid notwithstanding that some person who was not entitled to do so took part therein'?
Does this mean that Vasciannie, Foster and Leys could have sat in and deliberated on their own interviews?
I could have sought legal assistance in attempting to clarify the section, but my lawyer friends all speak Swahili while I speak English.
In another part of the Jamaican Constitution, Chapter 9, Part 1, 125, Section 3, the following is stated:
'No person shall be qualified to be appointed as a member of the Public Service Commission if he holds or is acting in any public office other than the office of the Judicial Services Commission or, member of the Police Service Commission.'
Question: Is there some fundamental difference to be drawn in the make-up of the PSC when meeting to discuss everyday business as against conducting interviews? Dr Carlton Davies, cabinet secretary and brother to Dr Omar Davies, recently minister of finance in the PNP government, is not, as far as I know, a member of the JSC or the Police Service Commission. Question: Why was he on the interviewing panel?


Mark, I would've been happy to assist you with interpreting these constitutional provisions, had you asked.

Let me see if I can explain in simple terms. Firstly, it is useful to read all of the constitutional provisions relating to the Public Service Commission, before attempting to interpret a particular section that relates to all Service Commissions established under the constitution. If you look at section 124 (5) of the constitution "vacancy" has a particular meaning would apply to any references to "vacancy" in section 136 (2).

Under section 124 (5), the office of a member of the Public Service Commission becomes "vacant" in certain circumstances, for example: expiry of appointment; resignation; appointment to public office (other than Judicial Service Commission or Police Service Commission) and removal by the Governor General (on the advice of the Prime Minister after consultation with the Leader of the Opposition) for infirmity or misbehaviour.

Note that section 124 (5) provides for a Public Service Commission consisting of a chairman and at least three other members, but not more than five other members. Vacancy, then, does not mean 'absence" The effect of section 136 (2) is to (a) prescribe a quorum for the transaction of the business of a Service Commission (such as the Public Service Commission); and (b) to validate any business transacted by a Service Commission, despite any vacancies (as constitutionally defined) in their overall number.

Let me use an example to illustrate. Let's say that a Commission is made up of four
members, for argument's sake, Daisy Coke (chair), Pauline Findlay, Rex Fennel, and Alfred Sangster. Daisy, Pauline and Alfred meet on October 1 to consider an application for public service position. They adjourn their deliberations until October 15. Rex is absent. On October 8, Alfred is appointed Commissioner of Police.
Upon his appointment, his position on the Public Service Commission immediately becomes vacant. On October 15, Daisy, Pauline, Rex, and Alfred all meet to continue deliberations and to make a decision. Technically, Alfred is no longer a member of the PSC. However, section 136 (2) simply validates the transaction of business of the PSC at their meeting on October 15, notwithstanding that (a) there was a vacancy in their overall number; and (b)
Alfred would've been technically not entitled to participate in their deliberations.

I hope this is clear.

You raised the question of whether there is some fundamental difference to be drawn in the make-up of the PSC when meeting to discuss everyday business as against conducting interviews. You pointed out that Dr Carlton Davies, cabinet secretary is not a member of the Judicial Service Commission or the Police Service Commission. You asked why he was a member of the interviewing panel.

I thought that I had clarified this in earlier emails to you. While it is true that Dr. Davies is not a member of the PSC, it is quite common for Service Commissions to rely on external expertise to evaluate candidates for public office. The critical issue is not whether he participated in the interviewing process, but in the ultimate decision of the PSC. I had previously referred you to the Public Service Regulations which clearly authorize the PSC to rely on a Selection Board in processing applications. I note that you made no reference to this in your column.

It is quite conceivable that Dr. Davies was part of a Selection Board, as indeed, John Leiba, the president of the Jamaican Bar Association. You would be aware the Cabinet Secretary is head of the public service in Jamaica. It seems more than reasonable to expect the PSC to rely on his input in evaluating candidates for public service and making recommendations. It is axiomatic that tribunals like the PSC have to rely on external advice, given that such tribunals will hardly have a monopoly on the expertise or information necessary to make sound decisions. In the same way, ministers of government rely on the advice of technocrats and others in crafting or implementing policy decisions.

You also raised the question of whether the PSC's "exit interview" with Michael Hylton 'coloured the decision made on the SG's appointment'. Once again, Mark, it would be prudent for the PSC to interview the outgoing SG, presumably to get his input on the nature and role of the SG; the qualifications required for the position; and perhaps his view on which candidate best met the qualifications. I would fully expect Michael's views to influence the views of the PSC, but not necessarily in the negative sense that you imply. It certainly would not have been Michael's place to 'direct' the PSC, and given what I personally know of two of the PSC members, such 'directions' would not have been entertained.

Regarding the participation of Pauline Findlay, I had already addressed this in detail. In summary, I repeat my position that Pauline's relationship with Michael Hylton was legally immaterial to her deliberations as a Public Service Commissioner. Further, to the best of my knowledge, the PSC's recommendation of Prof. Vasciannie was unanimous. Even if one imputes bias to the PSC in selecting Vasciannie, it is palpably clear (based on his resume) that any impartial/unbiased tribunal could have come to the same decision. From the perspective of Jamaica's tabloid culture, perhaps Pauline might have been better off not participating in the deliberations. However, having done so, there is, in my view, no sound legal or ethical objection to her participation.

You raise the question of why Vasciannie would want to work with a JLP administration. You refer to his supposed paucity of courtroom experience, mistrust between the SG and the government, his previous "dead cat" criticism of Bruce Golding. You conclude that "For the administration to work effectively it must have some say in those who will be chief legal advisers to the Government."

Firstly, I am not sure that you clearly understand the role and function of a Solicitor General or how a Solicitor General interfaces with the political directorate. The post of Solicitor General in Jamaica and the rest of the Commonwealth Caribbean is akin to a Permanent Secretary of a Ministry. The Solicitor General is essentially the CEO of the Chambers of the Attorney General, responsible for planning, directing, and organizing the work Chambers in accordance with policy prescribed by the Attorney General. While it is true that the Solicitor General must be a lawyer/advisor, it is equally true that the
Solicitor General must also be an administrator. It seems, therefore, that an ideal candidate for the position of SG requires a blend of skills, and not just those of a specialist litigator. The SG is not, and cannot be expected to be an expert in every area of the law that the AG's Chambers deals with. The SG does not rely only upon himself to address difficult areas of law that arise in the courts (or elsewhere), but upon a team of colleagues, which include two Deputy Solicitors General and five divisional directors.

Michael Hylton, a specialist litigator, had no particular expertise in international law. Michael relied on Stephen for this expertise in the AG's Chambers, as one would expect. Similarly, one the assumption that Stephen is 'weak' in litigation experience, he would have available to him experienced litigators like Patrick Foster, QC for advice and input. Just like the PSC, the SG will rely on advisers to discharge his functions.

From a point of view of practicality, it would not be feasible for the Solicitor General to spend most of his time in court. Having been a litigation lawyer myself, it is quite impossible to efficiently combine multiple court-room appearances with the demands of managing, directing and planning the work of a large Chambers of lawyers.
Indeed, in my experience, if one is to look at the management of large law firms, Managing Partners are rarely litigators; or if they are, they jettison much of their litigation practice in order to function as Managing Partners.

It is quite incorrect to refer to characterize the office of Solicitor General as a "chief legal adviser" to the prime minister. It should be noted that the Solicitor General is not the personal lawyer of the Prime Minister or any other political functionary; accordingly, the issue of confidence is neither here nor there. The SG does not generally interface personally with the PM. Most of the SG's interactions (and indeed that of his staff) is with other government ministries/departments, and moreso with permanent functionaries than political ones.

If the Constitution contemplated that the PM should necessarily be comfortable with the PSC's choice of SG, it could have said so, as it suggests in respect of Permanent Secretaries and the Financial Secretary. But it is silent on the point, giving rise to the view that the PM's comfort level is not a decisive factor in the law. From this perspective, any purported discomfort that the PM might have with Vasciannie because of previous history is constitutionally irrelevant.

The relationship of the SG to the government cannot be likened to a conventional relationship between a private lawyer and a client. While a conventional client has freedom to hire and fire his/her lawyer at will, the government has no such freedom outside of the political appointment of the Attorney General. Unlike a conventional client, State bodies do not usually have the privilege of rejecting or ignoring advice given by the Attorney General’s Chambers.


Best regards,

Hilaire

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The debate continues with KF on the Attorney General, the constitution, and the rule of law

The exchange with KF regarding my article on the AG continues. I set out the latest exchange below:




January 21, 2008

Thank you Mr. Sobers,


"For your information, the nature of the proceedings before Mr. Justice Jones was judicial review. In such proceedings, the court is only concerned with the legality of a decision of a public authority, and not the substance of the decision, per se."


Could you tell this to Donald Buchanan and Bert Samuels? Both of them are of the opinion that the dismissal of the former PSC and the appointment of the current PSC can be renderd null and void by an adverse ruling in the Judicial Review the PNP has initiated.

Is it unreasonable for the government's chief legal advisor to ask a government department to revers a decision which has been ruled illegal by a judicial review?

As to your constitutional point. I keep a copy of the constitution close at hand and all section 79 really dose is establish the office of Attorney General. Your whole argument about the Ministry of Justice overseeing appointments within the solicitor general's department would make sense except for the fact that the Minister of Justice and The Attorney General have traditionally been the same person.

Surely you are not saying the Attorney General should have no say in who works within the office of the Solicitor General? If we agree on that point, then what is there to trouble yourself over in the attorney general making use of a complimentary set of resources (The Ministry of Justice) to run the recruitment process?

Finally. You still have not even challenged my original point. I.e. How come you have taken on the minister's decision without either A) challenging the existence of the civil service regulations that she claimed requires that decision, B) Dealing with the matter of constitutionally invalid regulations that have existed unchanged for decades and C) a government law office which saw that lacuna and just worked against the regulations, rather than amending the regulations.


MY REPLY


Again, you seem not fully understand what I am saying.

With respect to the litigation pending initiated by the Leader of the Opposition, Bert Samuels is correct. In the same way that Justice Jones decision had the effect of nullifying the PSC's decision to retire Lackston Robinson in the public interest, the court could similarly nullify the dismissals of the PSC members, and as consequence the appointments of the new PSC members. You will recall that the essential purpose of judicial review is to test the legality of decisions made by public authorities or functionaries. Among the remedies available to the court in this regard, is an order certiorari which serves to quash an unlawful decision. An order of certiorari is usually accompanied by a declaration by the court that a particular decision was unlawful and therefore null and void. If the court finds that the relevant decision of the PM was unlawful, then it follows that the original PSC members would, in law, remain members of the PSC. Ineluctably, the subsequent appointments of the new PSC members would ipso facto be null and void.

I am not sure I understand your question about whether it is "unreasonable for the government's chief legal advisor to reverse a decision which has been ruled illegal by judicial review". As I explained to you before, there is no legal basis for the AG to either contend that the PSC was in contempt of Justice Jones' order or to direct that a public service officer be reinstated. Reinstatement, and for that matter, and other decisions relating to appointment, promotion, or transfer of public service officers, fall exclusively within the discretion of the PSC, and not political functionaries.

Section 79 of the constitution is fundamental to my entire analysis. You imply that my analysis makes no sense, given that tradition of combining the roles of AG and Justice Minister. As a matter of law, 'tradition' cannot supplant law, and in this case, the supreme law of Jamaica. The combination of roles cannot give the holder more power and authority than is accorded by the constitution. What you are implicitly arguing is that the holder of these roles is above the rule of law.

Regarding your point on whether the AG should have say on staffing issues in the Chambers, I again revert to one of my key constitutional points: public service appointments are constitutionally insulated from political interference. While there might, on occasion, be informal consultations with political functionaries, such consultations are not mandatory, and ultimately, political functionaries have no say in this decision-making process. The regulations of the PSC define a role for permanent heads of government departments (such as Permanent Secretaries and the Solicitor General), in making personnel decisions. No such role is prescribed for political heads (such as cabinet ministers and the Attorney General). The AG in this case, has done far more than insist on having the Justice Ministry oversee personnel matters in the AG's Chambers. The AG has insisted on exercising her own discretion in personnel matters, which is clearly untenable in law.

With respect to your final point, I believe I dealt with this in the first paragraph of my previous email. Again, I ask whether you have seen these so-called regulations for yourself. You have done nothing more than repeat the AG's claims, without more. Surely, since you are the one challenging my legal analysis, the onus is on you to establish that the regulations support the AG's conduct, as you seem to claim. I don't know of any "constitutionally invalid" regulations. The only authority competent to make a conclusive determination in this regard is the Supreme Court of Jamaica. If you know of any decision of the Court in this regard, by all means, please cite it. Certainly, the AG is not the final authority on the interpretation or validity of constitutional or other legal instruments. If indeed the regulations were invalid, as you say, there would be no basis for amending them, as such regulations would be inherently unlawful, and therefore null and void.

Best regards,


OHS

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A reader takes me to task on my article on the AG

A reader (whom I shall refer to as "KF") has taken me to task on the "logic" of my article entitled TThe Attorney General, the constitution, and the rule of law.

I have reproduced KF's comments below, together with my response.






Reader's comments

To: Mr. Sobers,
CC: Editor, Jamaica Observer,

I am very disappointed with the quality of arguments you presented in your column of January 19.

In that article you claim to have herd Mrs. Lightbourne's interview on Nationwide Radio where she asserted that the ministry of justice must be involved in the appointment of staff to the Solicitor General's department. Somehow you make the logical leap to declare that this is indicative of a disregard on her part for the rule of law. An assertion which could only logically be made if you also mount a challenge to her assertion that the arrangement she ordered implemented is outlined in the current regulations governing the solicitor general's department. A set of regulations which predate the system she has terminated.

So let me spell it out. If a minister finds a department acting in breach of the law and orders that they return to the procedures specified in the law (civil service regulations have the force of law within government departments), that minister is attacking the rule of law? Very strange logic.

There is a second point in your article that I wish to challenge on similar grounds. You assert that when she ordered the Solicitor General's department to implement the court ordered reinstatement of Mr. Lackston Robinson, that also flies in the face of the rule of law. As I understand the law, when a court orders you to do something "immediately", the only way to legally avoid doing it immediately is to get that court to stay it's order pending your appeal or to take it to the court of appeal immediately and get them to suspend the order.

If neither was attempted or the request for a stay was denied, there is no choice. Contempt of court isn't "rude". It is a crime. A private citizen who violates a court order in the way the PSC did, would likely be thrown in jail.



MY REPLY


I don't follow your reasoning at all. If you re-read my article, you will note that I grounded my arguments in law, with particular regard to section 79 of the Constitution. I don't know if you are a lawyer, but I would suggest that if you wish to counter my arguments, you cannot logically do so by simply repeating the assertions of the Attorney General regarding "regulations" without more. Do you know what regulations she is referring to? Have you seen them for yourself? You have yourself leapt to the conclusion that the AG was acting within the law without offering any verifiable data to support your conclusion. Might I repeat that the constitution of Jamaica, which is the supreme law of the land, plainly excludes political functionaries from interfering with the management of public service personnel. This constitutional design is reflected in the existence of three Service Commissions, that are constitutionally mandates to make selections for either the public service, police, or judiciary without interference from the political directorate. There are only a handful of top public service selections that are made directly by the Prime Minister. These include the Chief Justice, President of the Court of Appeal and the Director of Public Prosecutions.

With respect to your second point, it seems that you have not read the judgment of Mr. Justice Jones. For that matter you do not appear to understand the legal implications of this judgment. It is this judgment that the Attorney General relies on to ground her directive to reinstate Mr. Robinson. If you read the judgment, you will note that nowhere in the judgment is there any order for reinstatement of Mr. Robinson either in the public service generally or in the AG's Chambers in particular. Accordingly, contrary to the popular myth, the PSC was not, and could not legally be considered to be in contempt of court. For your information, the nature of the proceedings before Mr. Justice Jones was judicial review. In such proceedings, the court is only concerned with the legality of a decision of a public authority, and not the substance of the decision, per se. The court only has jurisdiction to pronounce on the legality of the decision, not to substitute its own judgment for that of the public authority in question. Accordingly, Mr. Justice Jones would hardly have directed Mr. Robinson to be reinstated as this was a matter exclusively within the province of the Public Service Commission. It might interest you to know that following the judgment of Justice Jones, it was legally open to the PSC to again retire Mr. Robinson in the public service, provided it did so in accordance with the procedures laid down by law.

If you are interested in reading relevant material that elucidates what I have set out above, I would be happy to provide it.

Best regards,

OHS

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Chronology of PSC/Vasciannie issue to January 12, 2008

A very diligent friend of mine has compiled a superb chronology of events surrounding the PSC/Vasciannie issue, which I share with you.







Sept. 3, 2007 General Election held in Jamaica, leading to a change of government.

Oct. 2, 2007 The Public Service Commission interviews three candidates for the post of Solicitor General (Stephen Vasciannie, Patrick Foster and Douglas Leys). The members of the interviewing panel are Daisy Coke O.J., Mike Fennell O.J., Pauline Findlay, John Leiba (President of the Jamaica Bar Association) and Carlton Davis O.J. (Cabinet Secretary). The members of the Public Service Commission who do not take part in the interviewing process are Edwin Jones O.J. and Alfred Sangster O.J. Later in October, there are unconfirmed reports that the Commission recommends Stephen Vasciannie for the post and sends their recommendation to the Governor General of Jamaica, Sir Kenneth Hall. There are also reports that Attorney General Dorothy Lightbourne objects to Vasciannie’s nomination because, she says, he is not a seasoned litigator.

Oct. 31, 2007 Michael Hylton’s resignation as Solicitor General takes effect. After a few days, Patrick Foster is asked by the Public Service Commission to act as Solicitor General, and he accepts.

Nov. 22, 2007 The Gleaner publishes an editorial under the heading “Fundamental issues at stake”, in which it considers the 1975 Australian constitutional crisis and links this to the efforts by Prime Minister Golding to dismiss the Public Service Commission and to the decision of the Opposition to withdraw from the Vale Royal talks. The Gleaner also publishes a letter headed “A mere red herring” by “Amused but getting increasingly cynical”, which argues that Stephen Vasciannie is very qualified for the post of Solicitor General.

Nov. 25, 2007 The Gleaner publishes a letter by Patrick Foster, Acting Solicitor General, which sets out the context of the Trafigura opinion written by Stephen Vasciannie, and argues that the opinion is in accordance with Jamaica’s domestic and international legal obligations.

Nov. 26, 2007 The Gleaner publishes an editorial under the heading “When the Constitution is not a shackle”, in which it urges Stephen Vasciannie not to withdraw his name from the selection process for the post of Solicitor General.

Nov. 26, 2007 Prime Minister Golding indicates that his administration has “serious concerns” about the processes that were used in the selection of Solicitor General to succeed Michael Hylton. This is reported in the Gleaner of November 27. The Gleaner reports that the Prime Minister may be referring to the possibility of bias against Douglas Leys in the interviewing process. In contrast, one of the members of the interviewing panel of the Public Service Commission is reported by the Gleaner of November 27 as saying that Stephen Vasciannie “was at least 30 per cent better than the other candidates” (“Golding breaks silence on PSC selection process”).

Nov. 27, 2007 The Gleaner publishes a letter headed “PM’s role in appointments” by Ken Jones, which responds to an earlier letter from Hugh Smythe and suggests that “the Attorney-General and the Prime Minister should have an overriding influence in the choice of Solicitor-General”.

Nov. 28, 2007 The Gleaner publishes a letter headed “Tangled web in PSC issue” by Karen Morin which notes problems with the approach taken by the Government with respect to the Public Service Commission.

Nov. 29, 2007 The Gleaner publishes a letter headed “Ken Jones is confused” by Hilaire Sobers, which demonstrates problems in Ken Jones’ reasoning concerning the Trafigura opinion and notes that Mr. Jones has difficulties making certain basic distinctions.

Nov. 30, 2007 Attorney General Dorothy Lightbourne discusses aspects of the opinion given by the Attorney General’s Chambers on the Trafigura matter in the Senate, indicating that the opinion was written by Stephen Vasciannie. Former Attorney General A.J. Nicholson criticizes Attorney General Lightbourne for identifying the source of the opinion as inappropriate conduct.

Dec. 2-8, 2007 The Sunday Herald publishes “Vasciannie’s Advice to the DPP” as its Letter of the Week: this letter indicates that the Dutch authorities were not authorized to undertake investigations in Jamaica as the required Ministerial Order had not been made by the then Government of Jamaica.

Dec. 2, 2007 The Sunday Gleaner publishes “Prime Ministerial arbitrariness” by Dawn Ritch, which criticizes David Wong Ken’s view that Stephen Vasciannie should withdraw his application for the post of Solicitor-General; in making her argument, Dawn Ritch relies on points made by Hilaire Sobers on the Breakfast Club.

Dec. 2, 2007 The Sunday Observer reports on proceedings in the Senate under the heading “Opposition objects to Vasciannie’s name being called in Senate: ‘When advice comes from the attorney general, you don’t call the name of the person who gives the advice’ – AJ Nicholson”. The Sunday Observer publishes an article by Mark Wignall entitled “Election win, but little power”, which anticipates various criticisms about the work of the Public Service Commission and its nomination of Stephen Vasciannie. The Sunday Observer also publishes an article by Claude Robinson entitled “A constitutional crisis in the making?”, which emphasizes the importance of relying on the rule of law in the assessing the Government’s actions against the Public Service Commission.

Dec. 4, 2007 The Gleaner publishes “Say something Mr Prime Minister” by Vernon Daley, which argues that Prime Minister Golding needs to clear the air on the Public Service Commission’s recommendation of Stephen Vasciannie and criticizes Attorney General Lightbourne for calling Vasciannie’s name in the Senate in connection with the Trafigura opinion given by the Attorney General’s Chambers. The Gleaner publishes three letters on “The PSC/Vasciannie imbroglio”. One is by Hilaire Sobers on Ken Jones’ article pertaining to the Trafigura opinion showing the false premises relied on by Jones (“Ken Jones’ misrepresentation”); another is by Alecia Sylvester setting out the constitutional rules that pertain to the appointment of the Solicitor-General and stating that it would be “highly irregular, and unconstitutional” for the Prime Minister to seek to dismiss the Public Service Commission in the circumstances (“The law is clear and straight”); and the third is by Matondo Mukulu, supporting the Trafigura opinion and criticizing Ken Jones’ earlier article (“Bad journalism”).

Dec. 11, 2007 The Gleaner publishes “Whatever the PM wants” by Vernon Daley, which argues that the candidate’s competence must be the main criterion for the post of Solicitor General and implicitly criticizes Prime Minister Golding on his approach to the recommendation concerning Stephen Vasciannie.

Dec. 11, 2007 The Observer publishes a report on page one by Erica Virtue under the heading “Lawyer, Public Service Commission at loggerheads again”, concerning Lackston Robinson’s reinstatement.

Dec. 13, 2007 Prime Minister Golding seeks to dismiss all members of the Public Service Commission; letters of termination signed by Governor General Sir Kenneth Hall are delivered. The members of the Commission are: Daisy Coke O.J., Michael Fennell O.J., Edwin Jones O.J., Alfred Sangster O.J., and Pauline Findlay. The letters of termination are delivered hours before the Leader of the Opposition applies to the High Court for an injunction prohibiting the dismissal of the members of the PSC.

Dec. 13, 2007 The Leader of the Opposition is granted leave by the High Court to apply for a judicial review of Prime Minister Golding’s decision to dismiss the members of the PSC.

Dec. 14, 2007 The Gleaner publishes a front page report entitled “Gov’t moves to appoint new Public Service Commission”.

Dec. 14, 2007 The Daily Observer publishes a front page report entitled “FIRED! PSC members dismissed before opposition leader able to file injunction”.

Dec. 14, 2007 The Gleaner publishes, as Letter of the Day, a letter from Canute Thompson entitled “What is the purpose of a judicial review?” about the application of the Leader of the Opposition to seek judicial review of the dismissal of the members of the PSC.

Dec. 14, 2007 The Gleaner publishes a letter headed “Who can fire the PSC?” by Bruce McKnight asking about who has the authority to dismiss members of the PSC if not the Prime Minister.

Dec. 15, 2007 The Observer publishes a letter headed “Such arrogance!” by Orville Brown suggesting that the Public Service Commission should give Prime Minister Golding “a free hand to make new appointments” and asserting that Stephen Vasciannie should withdraw his application to be the Solicitor General.

Dec. 16, 2007 The Sunday Gleaner publishes an editorial entitled “Disturbing PSC manoeuvres” criticizing Prime Minister Golding’s dismissal of the PSC and urging Stephen Vasciannie to seek a judicial declaration on his application to be Solicitor General.

Dec. 16, 2007 The Sunday Gleaner publishes “Fiddling while Rome burns” by Don Robotham, which characterizes the dismissal of the PSC as “utterly scandalous”, mentions that the Governor-General could be discredited by the matter, and criticizes “new human rights groups”.

Dec. 16, 2007 The Sunday Gleaner publishes “Taking the PM to court” by Martin Henry, which supports the submission of the PSC matter to court.

Dec. 16, 2007 The Sunday Gleaner publishes “Things look bleak for Bruce” by Dawn Ritch, which argues that Prime Minister Golding has “plunged the country into a constitutional crisis by his arbitrary and authoritarian abuse of power”.

Dec. 16, 2007 The Sunday Gleaner publishes “Termination illness” by Orville Taylor which criticizes the Government for its actions in respect of the PSC (“The Opposition Leader is crying foul, but whether fowl, fish or dead cat, it stinks”).

Dec. 16, 2007 The Sunday Gleaner publishes “’PM acted in bad faith’”, a report by Edmond Campbell on the dismissal of the PSC.

Dec. 16, 2007 The Sunday Gleaner publishes “Where’s the crime plan?” by Kevin O’Brien Chang in which he lends support to the approach taken by Ken Jones in Jones’ Gleaner article dated December 9, 2007.

Dec. 16, 2007 The Sunday Observer publishes “PSC removal looks like old-style politics” by Claude Robinson, critical of Prime Minister Golding’s treatment of the PSC issue.

Dec. 16-22, 2007 The Sunday Herald publishes an editorial entitled “A constitutional crisis”, which argues that the dismissal of the members of the PSC “has landed the country in a constitutional crisis”.

Dec. 16 –22, 2007 The Sunday Herald publishes the first part of “Prime Ministerial Manipulation” by Garnett Roper .

Dec. 17, 2007 The Daily Observer publishes an editorial entitled “PSC squabble weakens PM’s bid for consensus-building”.

Dec. 17, 2007 The Daily Observer publishes “The cat and the albatross” by Jean Lowrie-Chin arguing that in light of his “dead cat” metaphor Stephen Vasciannie sould have “graciously declined being named as the next solicitor general under a Golding-led government”.

Dec. 18, 2007 The High Court issues an order (per Donald McIntosh J) barring Prime Minister Golding from making recommendations to fill vacancies in the Public Service Commission. This order is made following an ex parte application by the Leader of the Opposition. The Gleaner reports this story on page 1 on December 19, 2007 (“PM barred from filling PSC vacancies”); the Daily Observer’s front page story on the matter is entitled “PM Blocked: Court grants injunction preventing replacement of PSC members”).

Dec. 18, 2007 The Gleaner publishes, as Letter of the Day, a letter headed “What is ‘misbehaviour?’” by Hilaire Sobers which discusses the dismissal of members of the PSC in light of the Privy Council case of Julia Lawrence v AG of Grenada.

Dec. 18, 2007 The Gleaner publishes “The addiction of prime ministerial power” by Vernon Daley, which criticizes the dismissal of members of the PSC in the context of proposals to limit prime ministerial power.

Dec. 18, 2007 The Gleaner publishes a letter headed “Blatant political interference” by Michael Pennycooke, which argues that “(d)espite all the obfuscation and journalistic gymnastics taking place, the sad fact is the PSC members were fired because they did not bow to the political directorate”.

Dec. 18, 2007 The Daily Observer publishes a letter headed “It’s all the fault of the PSC” by Kevin Forge which refers to resignations of members of the PSC in 1976 and 1980.

Dec. 19, 2007 The Daily Gleaner publishes, as Letter of the Day, a letter headed “Contempt for the law” by Jennifer Housen expressing sadness concerning the dismissal of the members of the Public Service Commission and expressing support for retention of appeals to the Privy Council given local political attitudes to law.

Dec. 19, 2007 The Daily Observer publishes an editorial entitled “Does Dr Vasciannie want to be solicitor-general?”, which emphasizes that the Prime Minister and Solicitor General need to trust each other.

Dec. 20, 2007 The Gleaner publishes a letter headed “JCSA’s view of PSC imbroglio” by Wayne Jones, President of the Jamaica Civil Service Association criticizing political interference in the work of the PSC and pointing out that Prime Minister Golding had a cordial meeting with the PSC before the Solicitor General issue arose.

Dec. 20, 2007 The Gleaner publishes a letter headed “Why all this rigmarole?” by Jean-Ann Bartley arguing that Stephen Vasciannie should withdraw his application for the post of Solicitor General.

Dec. 23, 2007 The Sunday Gleaner publishes “Democracy after 100 days” by Robert Buddan criticizing Prime Minister Golding’s interference in the civil service appointments process.

Dec. 23, 2007 The Sunday Observer publishes “Who owns Maxine Henry-Wilson’s constituency office?” by Mark Wignall which indicates that Daisy Coke, Chairperson of the PSC owns the constituency office used by Maxine Henry-Wilson M.P.

Dec. 23, 2007 The Sunday Observer publishes a letter headed “Political influence inevitable” by Michael Pennycooke, arguing that the PSC was dismissed because they refused to bow to the political directorate.

Dec. 23-29, 2007 The Sunday Herald publishes the continuation of an article entitled “Prime Ministerial Manipulation” by Garnett Roper.

Dec. 25, 2007 The Daily Observer publishes “Golding, PSC and the Opposition” by Ken Chaplin, which argues that the Public Service Commission has been politicized and that its recommendation of Stephen Vasciannie was “an imprudent act”.

Dec. 26, 2007 The Gleaner publishes an article entitled “Two bulls can’t reign in the same pen” by the Rev. Cyril Clarke, which argues that the Prime Minister has the last word in the appointment of the Solicitor-General.

Dec. 27, 2007 The Daily Observer publishes “Valuable time wasted on the PSC matter” by Mark Wignall, which quotes a correspondent to the effect that the Public Service Commission and Stephen Vasciannie are at fault in the matter.

Dec. 30, 2007 The Sunday Observer publishes an article entitled “Misbehaviour, the PSC and the Chief Servant” by Hilaire Sobers, which criticizes Prime Minister Golding for disregarding principles of natural justice in dismissing members of the Public Service Commission, demonstrates more generally the weaknesses of the Prime Minister’s approach to the Public Service Commission, and notes that the Governor General has not escaped untarnished in this episode.

Dec. 30, 2007 The Sunday Gleaner publishes a letter headed “Misinterpreting the PM’s role” by Clayton Morgan, which responds to an article entitled “Two bulls can’t reign in the same pen” published in the Gleaner of December 26, 2007. Clayton Morgan’s letter sets out the procedure for appointing the Solicitor General.

Dec. 31, 2007 The Daily Observer publishes a letter headed “PSC issue not about Stephen Vasciannie” by Alecia Sylvester, which argues that Stephen Vasciannie “has displayed great integrity in not withdrawing” from procedure for the selection of Solicitor General, and criticizes various aspects of the Observer editorial published on December 19 (“Does Dr Vasciannie want to be solicitor-general?”).

Jan. 2, 2008 The Daily Observer publishes an editorial entitled “Who will now want to serve on the PSC?” in which it is pointed out that the Prime Minister’s perceived political interference in the Public Service Commission has undermined the Commission’s credibility.

Jan. 3, 2008 The Gleaner publishes a letter headed “’Dead cat’ comment” by Wayne Lumsden, in which Mr. Lumsden points out, in response to the Rev. Devon Dick, that he does not recall “ever reading that Prime Minister Bruce Golding cited the “dead cat” comment” as his reason for objecting to Stephen Vasciannie’s appointment.

Jan. 4, 2008 The Daily Observer publishes letter headed “Vasciannie unsuitable” by Michael Williams.

Jan. 5, 2008 The Daily Observer publishes a front page story entitled “Hold it, PM: Portia urges Bruce not to name new PSC before court hearing”.

Jan. 5, 2008 The Daily Observer publishes a letter headed “Would the PM still cry ‘misbehaviour’…?” by Abe Dabdoub linking the dismissal of the PSC to their decision to nominate Stephen Vasciannie .

Jan. 6-12, 2008 The Sunday Herald publishes a front page story entitled “Cold War! Attorney General and staff at loggerheads over alleged political interference”. The Sunday Herald also publishes an editorial entitled “The PM’s seeming governance crisis” which considers aspects of the PSC dismissal.

Jan. 6, 2008 The Sunday Observer publishes “Implications of Prime Ministerial Tyranny” by Hilaire Sobers concerning the dismissal of the Public Services Commission and the treatment of Stephen Vasciannie.

Jan. 6, 2008 The Sunday Observer publishes a letter headed “Come off that high horse, JLP” by Kenneth Reeves arguing that the naming of a new PSC makes a mockery of the Vale Royal talks.

Jan. 7, 2008 The Daily Observer publishes a letter headed “Will we ever learn?” by Courtney Barnett, which notes that Prime Minister Golding has acted in an unconstitutional manner. The Attorney General, Dorothy Lightbourne is interviewed by Emily Crooks and Naomi Francis on Nationwide News Network (This Morning show).

Jan. 8, 2008 The Governor-General names the members of the new Public Service Commission. They are: Ambassador Don Rainford, Merlyn Brown, Neville Ying, Herbert Lewis and Audrey Hastings.

Jan. 8, 2008 The Gleaner publishes “’Dead cat’ comment and PM Golding” by the Rev. Devon Dick, which argues that Prime Minister Golding “should let sleeping cats lie”. Reverend Dick wrote in response to Wayne Lumsden letter published in the Gleaner on January 3.

Jan. 8, 2008 The Daily Observer publishes a letter headed “Mr. Williams, consult the facts on Stephen Vasciannie” by Hilaire Sobers, which responds to each of the points made by Michael Williams in his letter published in the Daily Observer on January 4. The Daily Observer also publishes “Fight over control of public service” by Ken Chaplin, which repeats accusations that the Public Service Commission has been politicized and suggests that the Attorney General’s Department is now experiencing difficulties “because it has been dominated by PNP activists brought in over the past 18 years”.

Jan. 10, 2008 The High Court grants the Leader of the Opposition a two-week extension during which she may file particulars of the claim for judicial review of the dismissal of members of the Public Service Commission.

Jan. 10, 2008 The Daily Observer publishes an article entitled “PNP says GG could be embarrassed if” in which Linton Walters is quoted as saying that if the High Court reinstates the original Public Service Commission then appointment of the new Commission will be null and void.

Jan. 11, 2008 The Daily Observer publishes a letter headed “No, Mr Chaplin, not at the AG’s Dept” by Acting Solicitor General Patrick Foster, which refutes statements made in Mr. Chaplin’s article published on January 8 about political activism on the part of lawyers in the Attorney General’s Chambers.

Jan. 12, 2008 The Daily Observer publishes a letter headed “What’s with you Mr Chaplin?” by D.S. Morgan and another headed “Unfair to denigrate past gov’t” by Michael Pennycooke, both of which challenge Mr Chaplin’s assertions concerning political activism on the part of lawyers in the Attorney General’s Chambers.

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Discussion on "This Morning" programme- Nation News Network

I was on the NNN's morning programme today with Emily Crooks and Naomi Francis to discuss some dimensions of the PSC issue, as well as the Attorney General's declared role in personnel management decisions in the AG Chambers. Frank Phipps, QC, chairman of the Farquharson Institute was also on at the same time to speak about the Institute's call for an inquiry into the operations of the AG's Chambers. For information, here's a post-show note that I sent to the hosts.






Dear ladies,

Thank you for having me on this morning. There are a couple of things that I don't think that I was able to adequately explain or clarify.

1. Nature of judicial review. Emily, you made reference to the judgment of Jones J which quashed the decision of the PSC to retire Lackston Robinson in the public interest. As I tried to explain, the nature of judicial review is simply an exercise by the Supreme Court to determine whether a decision by a public authority/functionary was lawful. A review is not the same thing as an appeal, although at times there can be some overlap. While Jones J was critical of the PSC, what is of paramount importance is the substance and effect of his ruling. His ruling simply declared that the PSC decision was wrong in law, and that it should be quashed (by order of certiorari). There is nothing in the judgment that mandated the reinstatement of Lackston Robinson, as (a) this would exceed the judicial review jurisdiction of the court; and (b) such an order, if made, would effectively substitute the judgment of the court for the discretion of the PSC. This is legally untenable. As I pointed out, it was open to the PSC following the judgment to again decide retire Lackston Robinson in the public interest, a decision that would be unchallengeable if done strictly in accordance with the law.

With respect to the pending judicial review litigation, let me reiterate that an adverse decision by the court would have implications for the previous PSC as well as the new one. If the court finds that the PM acted unlawfully in recommending the dismissal of the PSC members, then the legal implication of this would be that Daisy Coke et al, would in law remain lawful members of the PSC. Accordingly, the appointment of the new PSC members headed by Amb. Rainford would ipso facto, be void and of no legal effect. One of the real difficulties that could arise is the legal status of any selections made by the new PSC, if a court subsequently holds that the new PSC was unlawfully appointed. If a court finds against the PM, the PM, would, like the PSC be entitled to repeat the process of dismissal, but only in accordance with the law. If he again breached the law in dismissing the PSC, his decision would again be subject to the judicial review of the court.


2. Interference by the AG It seems that both of you seem to believe that the AG is justified in having an input in the selection of permanent members of staff. The AG has plainly stated that she is not prepared to allow the Exec Cttee to exercise any role in this regard, and that she must have the ultimate say. In her interview with you earlier this week, she partly grounded her position on the notion that the AG's Chambers is a department of the Ministry of Justice.

Firstly, the AG's conduct is without precedent, certainly as far as the AG's Chambers is concerned. It is trite constitutional law that political functionaries like the AG have NO say in the selection of permanent members of the civil service. This is in keeping with our constitutional design which segregrates political functionaries from public service functionaries. The raision d'etre of Service Commissions is to ensure that appointments to the public service are not tainted by political interference. The implications of political functionaries having a free hand to select public service officials are obvious. The modus operandi of the Exec Cttee is in keeping with our constitutional design. This Committee, I understand, was established by Michael Hylton during his tenure as SG, and served to deal with all personnel issues, prior to making recommendations to the PSC. Over the past decade or two, the PSC has, as a policy, devolved far more discretion on line managers in government ministries/departments in personnel matters, for good reasons of efficiency and effectiveness. It is quite impossible for the PSC, a body that sits part-time, to be involved in the minutiae of ALL public service selections/appointments. By rough analogy, one does not expect the CEO of a major corporation to be involved in the minutiae of personnel; this is left to a personnel manager/dept that does the initial sifting/processing before recommendations are presented to the CEO for approval. In some corporations, the CEO simply delegates the final decision to a senior officer.

The AG's Chambers is not in law, a department of the Ministry of Justice. In law, the AG is a specific office established by section 79 of the constitution. While the Ministry of Justice may have portfolio responsibility for this office, there is no reporting relationship (in law) between the AG and the Ministry of Justice. Traditionally, the posts of AG and Minister of Justice have tended to be held by one person. However, these posts are legally separate. If, for argument's sake, the posts were held by different persons, the AG would have not be obliged to report to the Minister of Justice. Accordingly, it seems to follow to me that the permanent staff of the AG are equally not obliged to report to the Minister of Justice.

By comparison, the office of the DPP also falls under the portfolio of the Justice Ministry, but the Minister cannot exercise any say in the personnel matters relating to the DPP's department. Like the AG, the DPP is a constitutional creature who is not answerable to any political functionary. Similarly, the management of the courts falls under the Ministry of Justice. You can rest assured that the Minister of Justice has no say in the staffing of the courts; this falls exclusively to the PSC.

3. Implications of AG's conduct. While you may both consider it appropriate for the AG to have a say in personnel matters regarding her Chambers, I am not sure if you have fully considered the implications of this approach with respect to other areas of government service. The AG's precedent opens the way for other political functionaries to bypass the constitution and the rule of law, in terms of staffing the public service with loyalists, rather than professionals. In the event that there is a change of government, would you not expect the new government to do the same thing? Assuming that the new PSC remains in place, is it not reasonable to assume that they will be prepared to do the JLP's bidding and rubberstamp selections made by political functionaries? Again, if and when the government changes, wouldn't it be reasonable to assume that the new government would then seek to replace the PSC with its own people, so as to secure their own public service selections? Why indeed confine it to the civil service? If, for argument's sake, the courts rule against the government in the pending litigation, what is to stop the government from firing the judge or judges who ruled against it? In terms of selections by the Judicial Service Commission for appointment/promotion to the bench, what is there to stop the JLP government from firing the JSC, if the JSC insists on a recommendation that the government doesn't like?

One of the things that seems to have eluded many of us in this debate is that the government apparatus is not the personal fiefdom of a particular party or PM. Much has been said about the need for the PM and/or AG to be able to have people around them that retain their confidence. Few seem to recognize that the constitution does not give them the luxury of hiring or firing according to their personal taste, nor should it. The nature of government is that political functionaries are obliged to cooperate with civil servants whether they like them or not. If there is a basis for complaint/dismissal, there are available mechanisms. This notion that the lawyers of the AG's Chambers are obliged to adapt to Dorothy, rather than the other way around, is, frankly, ludicrous.


More anon,


Hilaire

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