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