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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Intellectual dishonesty in the Jamaican media- the case of Kevin O'Brien Chang

In the Sunday Gleaner of January 06, 2008 ( http://www.jamaica-gleaner.com/gleaner/20080106/focus/focus3.html), Kevin O'Brien Chang declared that:


In 1977, Prime Minister Michael Manley called for and got a new Public Service Commission (PSC). So did Prime Minister Edward Seaga in 1980. Now in 2007 some are making a big deal about Prime Minister Bruce Golding doing the same. Ken Jones and Ken Chan a mandate by the people to do whatever he thinks is in the best interests of the country, as long as he stays within the bounds of the constitution. Mr. Golding has not transgressed the constitution anymore than Mr. Manley or Mr. Seaga did. Every democracy allows its elected leader to choose his own management teams, subject to the scrutiny of relevant bodies. Surely the proper function of the PSC, which was not voted in by the people, is to make certain that the PM's picks are fit for the job, and not to impose selections he deems unsuitable upon him. And no self-respecting democracy would allow the head of its Public Service Commission - responsible for vetting all major public service jobs - to provide rent-free premises to any political candidate. Caesar's wife, etc ...




Like the other two Kens (Jones and Chaplin), Kevin’s reasoning owes little to fact or evidence that can be substantiated. . On December 11, 2007, Kevin carried much the same line of argument an interview on Nation News Network. During that interview, Kevin praised Ken Jones' position and defended the PM's dismissal of the PSC, suggesting that it had been guilty of misbehaviour because of an adverse judicial review decision in the matter of Lackston Robinson. Kevin was evidently unaware that "misbehaviour" is a legal construct that is not readily amenable to a lay interpretation. Further, I could see no sign that he had considered that that public/statutory bodies/decision-makers like the IDT, Resident Magistrates, Police Service Commission, et al are regularly the subject of adverse judicial review decisions, without any imputation of misbehaviour on the part of the decision-makers. Following his logic, every time a judge is reversed on appeal, that judge should resign for "misbehaviour".


I emailed Kevin in an attempt to set him straight on the legal issues, if nothing else. I even sent him a copy of the article that I had submitted in rebuttal of Ken Jones' piece of December 09, 2007. In his initial response, Kevin did not dispute the correctness of my position. He deflected my critique by suggesting, among other things that the media should have lawyers discuss these matters and not laypersons. He also thought that Stephen Vasciannie was foolishly allowing himself to be used as a political tool. Like many other commentators, Kevin accepted without question the tale that Stephen had called Golding a 'dead cat'. I subsequently sent Kevin the column in which this reference first appeared, which clearly demonstrated that Stephen did no such thing. Undeterred, Kevin insisted that this 'dead cat' reference disqualified Stephen from selection as SG. I pointed out to him that even if Stephen called Golding a 'dead cat' that this was legally irrelevant to the fact that Stephen was constitutionally selected to be the new SG. I also pointed out that the PM has persons in his administration (like Aundre Franklyn) who have said far worse things about him in the past. In simple terms, the Chief Servant is not constitutionally or ethically permitted to privilege his hurt feelings (assuming they are/were) over the rule of law. Vainly, I pointed out that Stephen is not being used as a political tool, but is simply standing up for principle
Despite all of this dialogue, Kevin wrote a column that appeared on Sunday 16, 2007 (http://www.jamaica-gleaner.com/gleaner/20071216/focus/focus2.html)in which he claimed:


The Public Service Commission impasse between Prime Minister and Opposition Leader has engendered much veranda gossip. Not being a lawyer, I leave the niceties to the shylocks. To my layman's ear, Ken Jones' December 9 Gleaner article made sense. O. Hilaire Sobers claims Mr. Jones' arguments are not legally persuasive. But since Michael Manley and Edward Seaga demanded and got new PSC members in 1976 and 1980, respectively, this hullabaloo seems a tempest in a teapot.


Once again, I attempted to engage Kevin on what I considered to be his mischaracterization of the issues.
On the issue of a presumptive convention of resignations, I pointed out to Kevin that:

First of all, if indeed such a convention exists, it would clearly undermine the presumptive constitutional autonomy/independence of the PSC from the political directorate. Essentially, the PSC would become nothing more than the rubber stamp of the political directorate, something that is clearly not contemplated by the design of constitutional service commissions.

Secondly, even if previous PSC members tendered their resignations at the request of a PM, this was done by choice, not compulsion. This history does not equate to a convention of resignation when requested by a PM.



Thirdly, if indeed there is a convention of asking for, or tendering resignations, one would have to ask why Prime Minister Golding did not insist on this upon assuming office (not only for the PSC, but for the other constitutional service commissions).

Fourthly, it is a matter of public knowledge that the "Vale Royal talks" between the JLP and PNP resulted in an agreement that future appointment of PSC members would be done by consensus, rather than the lower constitutional standard of consultation. As far as I am aware, the current PSC members were appointed under that formula.

Fifthly, the so-called convention of resignations is clearly inapplicable to this situation, given that the PSC members were fired for purported misbehaviour, as opposed to being asked to resign to make way for personnel favoured by the PM.

If, having regard to these considerations, you remain of the view that this situation is merely "a tempest in a teapot", my only inference must be that the termites have been nipping at your cranium.


Kevin's brief reply was that he only had 1200 words for the column, and that what people really wanted to hear about was the crime problem (his article was entitled Where's the crime plan?)


Now, three weeks later, the best that Kevin can offer is the same: reasoning untouched by facts, logic, or balance. Now, he goes as far as to declare that the PSC's job is to essentially rubber stamp the choices of the PM!!! Further, he repeats Mark Wignall's story about the Daisy Coke renting premises to Maxine Henry-Wilson, as if to say, there is something intrinsically wrong with such a commercial transaction. If Kevin had made some inquiries , he might have discovered that the building on the premises in question had been scheduled for demolition. The building itself had been stripped of all fixtures, and was subsequently rented to Maxine Henry-Wilson as is, where is, for a peppercorn rental. Nothing more, nothing less.


Sadly, journalists like Chang, Chaplin, and Jones reinforce a Jamaican practice of preferring the ease of suss and kass kass to the rigour of critical thinking.

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Intellectual dishonesty in the Jamaican media- the case of Ken Chaplin

Ken Chaplin, a columnist with the Observer has written two columns recently on the PSC/Vasciannie issue. The first was published on December 25, 2007, and was entitled Golding, PSC, and the Opposition. The second was published on January 08, 2008 and entitled Fight over control of public service.

Both these columns symbolize the intellectual dishonesty that prevails in the Jamaican media.




In these columns, Chaplin has largely justified the government's position, citing among other things:

1. The partisan nature of the PSC;

2. A convention of resignations by the PSC upon a change of government;

3. The supposed animosity between the PM and Stephen Vasciannie;

4. The alleged misbehaviour of the PSC that warranted its dismissal;

5. Partisan lawyers in the AG's Chambers.


Following Chaplin's first column, I faxed him a note (see previous post), pointing out several mistakes of facts and analysis. I know he received the note because I called him to confirm receipt. Despite the information provided to Chaplin, he has persisted in propagating the same nonsense. For example, he continues to insist on the existence of a convention of resignations, when I have clearly demonstrated that it does not, and cannot exist. He now baldly claims that all the members of the PSC except for Alfred Sangster were either rabid PNP supporters or sympathizers. Chaplin advances no evidence in support of this claim. The question I would put to him is this: even if all of the PSC members were indeed rabid PNP supporters, has this negatively impacted on the discharge of their responsibilities? Did this PSC habitually select persons for public service based on party affiliation instead of merit? Of course, Chaplin completely ignores the fact that these so-called PNP-packed PSC was appointed on a bipartisan formula of consensus, based on the Vale Royal talks of 2005. This is a singularly powerful example of Chaplin's intellectual dishonesty at work. His dishonesty and indeed maliciousness is no less in his characterization of the lawyers of the AG's Chambers as being partisan. Frankly, I think this allegation borders on defamation.

What does Chaplin say now about the new PSC? Isn't this PSC more likely to be labelled a JLP PSC given the circumstances of its appointment? Does Chaplin imagine this PSC to take any decisions that go against the wishes of the JLP government? Again, the intellectual dishonesty is stifling.

Chaplin, like other "journalists" of his ilk have become just as tribal as the politicians they criticize. What irks me is none of them are honest enough to declare their interest or agenda. I fully expect opinion journalists to express their opinions, but for God sake, I don't expect them to wilfully ignore the facts in the process.

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The intellectual dishonesty of some Jamaican commentators

One of the startling features of this controversy over the PSC/Vasciannie issue is the rank intellectual dishonesty of some of our commentators. Many of them have pointedly dismissed or ignored the facts to suit their particular agenda. I will be publishing a few examples of this over a period. I will start with an email that I sent to Mutty Perkins on November 23, 2007.






Dear Mutty,

For many years I had held you in high esteem as one of the few Jamaican journalists prepared to think critically and to speak truth to power. Sadly, this esteem is being undermined by your treatment of the Solicitor General/PSC issue, and indeed what I am seeing as your descent into rank partisanship in the treatment of important public issues.

Background

Two weeks ago, I appeared on your programme to discuss the government's opposition to Stephen Vasciannie's selection by the PSC as Solicitor General. I gave you detailed information on the nature of the position of Solicitor General and the constitutional and legal arrangements that underpin it. My position was not one of promoting Stephen Vasciannie, per se, but the rule of law. You took no issue with any of the facts or legal positions that I advanced, particularly, my position that the government was obliged to accede to the recommendation of the PSC, regardless of its personal or political discomfort with Stephen Vasciannie. I expressly addressed a reservation that you had previously expressed about his so-called lack of litigation experience, pointing out that the role and function of the Solicitor General did not require the holder of this position to be a specialist litigator. In this regard, I pointed out to you that the work of the Attorney General's Department is divided into five areas, of which litigation is one (the others are commercial, constitutional, international, and general advice). I explained that the role of the SG combines both legal and administrative functions, and is not principally or only about the conduct of litigation.

On the following day, David Wong Ken of JFJ appeared on your programme to take issue with what I said the previous day. Following an aborted attempt to join the conversation, I emailed you an offer to appear on the programme with David at any other time, to debate the matter with him. In particular, I wished to controvert his bald assertions that (a) there was bias (or the possibility) on the part of the PSC in selecting Prof. Vasciannie over Douglas Leys; (b) that Prof. Vasciannie lacked the qualifications to be Solicitor General because of his so-called lack of litigation experience and his (c) Prof. Vasciannie had engaged in consistent criticism of Bruce Golding. For your information, I attach a letter that I sent to Carolyn Gomes of JFJ, which details my response to David's articulated position on your programme. During your interview with David Wong Ken, you made no references to the information or positions that I had advanced, opting to accept Mr. Wong Ken's views without question.

You did not respond to my offer to debate the issue with David Wong Ken on your programme. This seems to signal that you have already made up your mind about this issue, and that you are otherwise disinclined to entertain any views that contradict your personal opinion.

Is the law a shackle for some but for others?

For close to a decade, you have rightly criticized PJ Patterson for his statement that the law is not a shackle. This was in the context of the then PM's failure to follow legal procedure in declaring a public holiday in the wake of Jamaica qualifying for the 1998 World Cup finals.

However, it appears that you now have no difficulty with privileging "practicality" over the rule of law. Today, in an interview with a caller, you clearly took the position that it was impractical for the PSC to force its selection of Prof. Vasciannie on an unwilling political directorate. You and the caller considered that Prof. Vasciannie's "dead-cat" reference forms a defensible basis for the PM to repudiate the recommendation of the PSC, and indeed to remove the PSC, if necessary. Neither of you saw any merit in upholding the rule of law, despite the "impracticality" of personal animus.

Misrepresentation of "dead cat" reference

One of things that disappoints me is your complete misrepresentation of Prof. Vasciannie's dead cat reference, which appeared not only in a tv interview, but in the Daily Gleaner of Sept 30, 2002. The dead cat reference was not a description of Golding per se, but merely a metaphorical description of the effect of Golding's return to the JLP on the PNP, within the context of impending general elections. Prof. Vasciannie was clearly critical of Golding's return to the JLP, but certainly cannot be said to have likened Bruce Golding per se to a dead cat. You have completely failed to bring this analysis to the table, or indeed to provide your own nuanced analysis of the article in question. In any event, there is no clear evidence that the government's opposition to Prof. Vasciannie is rooted in this, or any other criticism of Bruce Golding. It is disturbing to me, that I have seen no evidence of any independent investigation on your part to get the relevant facts, instead of relying solely on what I consider your personal prejudice.

Politicizing the constitutional autonomy of Services Commissions

I am even more disappointed by your view that primacy should be given to the PM's supposed discomfort with Vasciannie, as opposed to the clear constitutional imperative to honour recommendations of the PSC. The law, Mutty, is indeed a shackle. Why then, is the law not a shackle for Prime Minister Golding in this respect? On what rational basis do you excoriate former PM Patterson for his violation of law (justified primarily on practical grounds), but absolve PM Golding from compliance with the constitution with respect to the appointment of a Solicitor General? Whether you or like or not, the law plainly reposes the authority for selecting a Solicitor General in the PSC, and no other. Nothing in the law accords the PM any power to dispute or overrule the PSC if he is unhappy with their recommendation. While you or anybody else may take issue with the selection of Prof. Vasciannie for whatever reason, that does not derogate from the constitutional authority of the PSC to make this selection. In my interview with you on Nov. 05, I made references to the implications of the government opposing the PSC's selection. I do not recall any disagreement from you on the implications that I identified. Yet, curiously, in an interview with my mother earlier this week, you sought to distinguish the government's opposition to the PSC, with opposition by the police to any Commissioner selected by the Police Services Commission who does not come from the ranks of the police.

It seems to me that you are deliberately ignoring the constitutional role assigned to services commissions. The point of these commissions is to insulate appointments to public service positions from direct influence by the political directorate. While you might take issue with the composition of these commissions, it does not take away from this basic premise. Today, you argued that the current PSC was selected by previous government, and that perhaps the selection of the Prof. Vasciannie reflects the part of the nightmare for the government promised by the current Leader of the Opposition. As I understand your argument, the current PSC is itself politically aligned to the PNP and is seeking to undermine the JLP.

Appointment of PSC members

Mutty, first of all, the members of the PSC, as with all services commissions, are appointed by the Governor General acting on the advice of the Prime Minister after consultation with the Leader of the Opposition. To the best of my research, the current PSC was appointed in 2006 on the advice of then PM Simpson-Miller, after consultation with then Opposition Leader Bruce Golding. I do not recall any public expression of opposition by Mr. Golding to the appointments of the PSC members. If you have any contrary information, this would be useful for the public. On the assumption that there was no objection by Mr. Golding, is it not fair to infer that the appointments were made on a bipartisan rather than partisan basis? If this is so, on what rational basis do you then maintain that the current PSC's recommendation of Prof. Vasciannie is politically motivated, as you imply? In any event, as a journalist, is it not your job to obtain the resumes of all three candidates and make your own assessment of whether a PSC, regardless of its political complexion, could reasonably have selected Prof. Vasciannie over the other candidates? I know as fact that Prof. Vasciannie's resume was sent to you, but I am yet to hear any reference to it on your programme.

Intellectual dishonesty

Frankly, I think that you have been intellectually dishonest in your handling of this issue, something I find profoundly disturbing in a journalist of your reputation and intellectual capacity. As a journalist, I expect that you will have your opinions. However, the business of journalism is not merely about promoting your opinions, but in ensuring that all the facts and all contending opinions have a voice. Sadly, it seems that your agenda is more about the former than the latter. As an aside, I note that in your earlier conversation with my mother, you bordered on attacking her for simply seeking to raise the issue of transparency, principle, and the rule of law with respect to the selection of the SG by the PSC and the appointment of Joan Gordon-Webley as executive director of the NSWMA. I was appalled that you were disinclined to fully consider the law governing her appointment, preferring instead, to take my mother to task for purportedly not making the same observations with respect to previous PNP appointments. My mother has paid a heavy price for standing up for principle and justice in Jamaica, regardless of the political personalities involved. Her reputation for principled positions on public issues is well-known. For you to diminish my mother's critique of current public sector appointments, by reference to some supposed failure to raise this with respect to someone like Vin Lawrence is, frankly, below you Mutty. What is worse, is your complete failure to put my mother's record on the table in response to her later detractors on your programme, who unfairly accused her of 'tearing down the JLP'. It seems that like many other Jamaican journalists and commentators, you have allowed prejudice to displace reason and fairness in your treatment of crucial public issues.

The law shackles all governments

With respect to the PSC/SG issue, I hope that you might one day consider that the law is shackle, not just for one government, but for all governments. The PNP under PJ and Portia was not above law, much as they might have behaved to the contrary. I hope that one day, you might see that the same applies to the JLP under Bruce Golding.

Best regards,


Hilaire

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