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