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
Sunday, January 20, 2008
A reader takes me to task on my article on the AG
Tuesday, January 8, 2008
Political cultists at it again
I can usually depend on the usual assortment of political cultists to compulsively miss the point of my articles in favour of ad hominem attacks. Here are a couple of emails that I received in response to my letter that appeared in the Observer today (edited of course, for libel!):
EMAIL ONE
Your man Professor Stephen Vasciannie is not qualified to be the solicitor general, he is more useful teaching students.
I am not a lawyer, but he gave the governmnet wrong advice regarding CCJ.
He did not support the dutch governmnet in the lawfully investigation into criminal activities by their national.
MY RESPONSE
Sir (?),
Like many who have expressed a view on this issue, you do so without any the slightest resort to the facts. You have not even bothered to express a view as to whether the facts I set out in my article are accurate or not. Again, like many Jamaicans, you much prefer to personalize an issue, rather than deal with it on principle.
Did you review Prof. Vasciannie's resume before concluding that he is unqualified to be SG? If you are not a lawyer, on what basis do you infer that Prof. Vasciannie gave the wrong advice? Have you even read the letter of advice for yourself? If you had, you would hopefully conclude that your claims are entirely baseless. What is more, you seem not understand the role of Prof. Vasciannie in advising the government on the international and legal requirements for facilitating the Netherlands authorities. For your own information, the current government has actually acted on his advice in procuring the requisite ministerial order to facilitate the Netherlands authorities.
Get a grip.
EMAIL TWO
Mr. Sobers, being myopic is a sin, Stephen is a PNP sympathizer and what with the policies differential with the present govt? how could he function as the chief legal advisor to government ???
You need to change your tone........
MY RESPONSE
I assume that you are a Jamaican. Like many Jamaicans, it seems that you have tendency to confuse facts with opinions. While it may be your opinion that Stephen is PNP sympathizer, on what empirical or rational basis do you base this? And even if he is, so what? What does that have to do with his qualification to be SG? Since you have so much energy to construct an imaginary political affiliation for Stephen, why don't you attack the government for retaining people like Kingsley Thomas and Derrick Heaven, who are real/known PNP supporters?
Why is it that Jamaicans like you seem to have such trouble in processing issues in terms of principle, rather than personality? What do you know about the role of the SG? Are you aware that a previous SG, Dr. Ken Rattray served for almost 30 years under both PNP and JLP regimes? Based on your argument, why not fire the entire civil service when a new government comes to power and replace them with loyalists (to the new government?). Do you have any clue about the constitutional mandate that prohibits the political directorate from interfering with the selection of civil servants (generally)? Go read the constitution and then get back to me, if you are interested in rational, informed discourse.
