Commentary on Justice Jones' judgment

The judgment of Mr. Justice Jones has been the subject of much discussion in the wake of the firing of the Public Service Commission. Unfortunately, much of the discourse has not been grounded in a clear understanding of what the judgment was about. Some, including the Attorney General, have declared that the judgment had the effect of reinstating Lackston Robinson. This is not so. It has also been asserted by others (including the Prime Minister and the Attorney General) that the Public Service Commission acted in contempt of the judgment in failing to reinstate Mr. Robinson in the Attorney General's Chambers. Again, this is not so.

What really was the judgment about?






First of all, the nature of the proceedings before Justice Jones was judicial review. For laypersons, judicial review is a means by which the Supreme Court considers decisions made by public authorities or functionaries like the Public Service Commission to determine whether such decisions were made in conformity with the law. Judicial review is not the same thing as an appeal,where the appellate tribunal has the power to substitute its decision for the decision that it is considering. In judicial review proceedings, the court cannot substitute its own judgment for that of that tribunal it is reviewing. This may seem a bit confusing to the layperson, but read on, and hopefully it will become clearer. In this particular case, the court could not decide that Mr. Robinson should or should not be retired in the public interest. It could only decide on whether the decision taken by the Public Service Commission took all the correct legal steps in taking the decision it made.

If the court finds that the decision taken was wrong in law, the court can quash the decision. This is essentially a finding that the decision is unlawful and of no effect.


Background

The background to the judicial proceedings before Justice Jones is this:

1. Lackston Robinson, a member of the Attorney General's Chambers had acted as Deputy Solicitor General for a year, when he was reverted to his substantive position of Divisional Director. He was reverted to his substantive position in late 2001.

2. In April 2002, Mr. Robinson initiated judicial review proceedings to challenge this decision to revert him to his substantive position.

3. In the same month/year, the Permanent Secretary in the Ministry of Justice directed Mr. Robinson to go on vacation leave. The PS gave no reasons for sending Mr. Robinson to go on leave, but it later emerged that she had done so because of the tension and discomfort generated in the AG's Chambers because of the pending litigation.

4. Mr. Robinson promptly initiated judicial review proceedings against the Permanent Secretary to challenge her decision to send him on leave.

5. In March 2003, the Public Service Commission took the decision to retire Mr. Robinson in the "public interest", as provided for under the Public Service Regulations. Mr. Robinson again initiated judicial review proceedings to challenge the decision of the Public Service Commission to retire him in the public interest.


The judicial review proceedings with respect to the Permanent Secretary's decision and the PSC's decision were consolidated and heard at the same time before Justice Jones.

Issues

According to Justice Jones, the issues for considerations were:

i) whether the Permanent Secretary improperly exercised her power (under relevant Staff Orders/Rules) to direct that Mr. Robinson proceed on vacation leave, and whether such a decision was ultra vires, and a nullity;

ii) whether the Public Service Commission acted unlawfully in breach of the Public Service Regulations and of natural justice in recommending to the Governor General that Mr. Robinson should be prematurely retired from the Public Service and,if so, whether the decision of the Public Service Commission is ultra vires and a nullity.

Ruling

The judge ultimately ruled that both decisions were unlawful (ultra vires). By extension, the court also held that the Governor General's decision to retire Mr. Robinson in the public interest was also unlawful. Both decisions were quashed by the court (the technical legal term for this is certiorari).

The court also granted Mr. Robinson and order that "damages for loss of salary and allowances be assessed on a date to be fixed by the Registrar of the Supreme Court."

It should be carefully noted that the court did not order the reinstatement of Lackston Robinson either to the public service in general, or to the Attorney General's Chambers in particular.


Commentary

1. This judgment was used by the Prime Minister as one of the grounds for dismissing the PSC for "misbehaviour". According to the Prime Minister's press release (appearing on the JIS website on December 14, 2007):


Mr. Golding said the blatant disregard for procedural fairness and natural justice, demonstrated by the Commission, was the subject of scathing comments by the Supreme Court earlier this year. Mr. Golding said that based on this, it would have been the honourable thing for members of the Commission to have tendered their resignations en bloc. Instead, Mr. Golding noted that the Commission had persisted in its vindictiveness by contriving to circumvent and frustrate the decision of the Court. This has again landed the Commission before the Court for failure to abide by the decision of the Court...


In his review of the PSC's conduct, Justice Jones said:


"...the decision of the Public Service Commission to retire [Mr. Robinson] is in excess of jurisdiction and illegal";[page 35].


This is the customary language of the courts when quashing decisions of public authorities of functionaries. Public authorities and functionaries are regularly the subject of adverse judicial reviews without any concomitant implication that they have been guilty of "misbehaviour". Judges, for example, are frequently reversed on appeal. Sometimes the comments of the appellate courts are quite scathing; however, this has never been taken as indicative of 'misbehaviour' warranting the dismissal of the judges who have been reversed.


In my view, the judge was far more scathing in his review of the Permanent Secretary's decision, when he remarked that her decision was "a striking example of an abuse of power." [page 22] It seems to me that if there is ground for dismissing the PSC, there is even stronger ground for dismissing the Permanent Secretary.


The PM's indictment of the PSC for "contriving to circumvent and frustrate the decision of the Court", is entirely without legal foundation. Firstly, there was no obligation on the PSC to reinstate Mr. Robinson. The only tangible relief ordered by the court was damages for loss of salary. Secondly, it was open to the PSC to exercise its constitutional power to still retire Mr. Robinson in the public interest, provided that it acted in accordance with the law (in this case, the PSC only has power to retire a public officer in the public interest if so recommended by the head of department of the public officer in question; in Lackston Robinson's case, the PSC had omitted to get the recommendation of the Solicitor General before retiring Mr. Robinson). In other words, the PSC could have simply repeated the process, but ensured that it followed all of the legal steps required.

Rather than flout the judgment of Justice Jones, the PSC took steps to reinstate Lackston Robinson in the public service, something that the PSC was not constitutionally or legally obliged to do. The PSC attempted to transfer him to another position in the public service (Tax Dept), which has now provoked another round of litigation by Lackston Robinson. It is important to note that the PSC does have the constitutional authority to transfer public service officers.


2. The PSC members sued by Lackston Robinson were Daisy Coke, Michael Fennel, Edwin Jones, Pauline Findlay, and the late George Phillip. I understand that Alfred Sangster replaced George Phillip, when the latter died in April 2007. Notwithstanding that Alfred Sangster was not a member of the PSC, nor a party to the decision that was quashed by Mr. Justice Jones, he was still fired by the PM for misbehaviour. Given the foregoing, on what legal or rational basis could the PM assert that the judgment should have precipitated the en bloc resignations of all of the PSC members, including Dr. Sangster??


In conclusion, I reaffirm that:

a) the judgment of Mr. Justice Jones is nothing out of the ordinary; it represents a routine quashing of a decision that a public authority took that was ultra vires or in breach of the law;

b) nothing from the judgment can reasonably be interpreted as ordering the reinstatement of Lackston Robinson in the public service generally or the AG's Chambers in particular;

c) the PSC has not acted in contempt of the judgment, and there is nothing in the judgment itself that can reasonably ground a charge of constitutional misbehaviour.