Letter to Carolyn Gomes of JFJ on PSC issue

November 13, 2007


Dear Carolyn,

I am writing you about David Wong Ken’s interview with Wilmot Perkins on November 06, 2007, regarding the government’s opposition to Prof. Stephen Vasciannie’s appointment as Solicitor General. According to David, he felt the need to reflect certain concerns of the JFJ as result of my own interview with Mutty on this issue on the preceding day.



With due respect to David, I believe that there is much that he may have overlooked in his discussion of the issue, which I feel obliged to point out to you, in the interest of clarity and fairness. I attempted to contact David immediately following his interview to offer to debate the issue publicly, but I have not heard from him (I attempted to reach him by both phone and email).

In summary, I understand David’s/JFJ’s concerns to be as follows:

1. The impact of Douglas Ley’s support of Lackston Robinson’s litigation against the Public Services Commission (PSC) on Douglas’ (unsuccessful) application for the position of Solicitor General;
2. Stephen Vasciannie’s lack of court-room experience; and
3. Consistent criticism of (now PM) Bruce Golding.

Lackston Robinson litigation
There is no dispute about the existence of this litigation or that Douglas Leys did indeed swear an affidavit in support of the claimant. However David asserted that the PSC “ought to feel put out by Douglas Leys’ affidavit”, and that this “calls them into question somewhat”. David concluded that “from a JFJ perspective that process needs to be looked at”. I inferred from David’s assertions that the PSC had unfairly or appeared to unfairly factor Douglas Leys’ participation into their ultimate recommendation of Prof. Vasciannie instead of Douglas Leys. David stated that he was not “plugging” for Douglas, as he considered either Douglas or Patrick (Foster) to be suitable for the job.
Firstly, David proffered no evidence to substantiate this view. As a lawyer, I believe David knows better than to speculate on the impartiality of a tribunal without more. With due respect to David, I believe that if he had evidence to suggest that the PSC had taken into account extraneous considerations in arriving at its final recommendation, that he was duty-bound to disclose this evidence, with a view, perhaps, to challenging their decision by way of judicial review. David knows full well that the PSC is not in a position to publicly deny these serious allegations; accordingly, I would have hoped that David would’ve been somewhat more tempered in his approach. Further, while David insisted that he was not promoting the candidacy of Douglas, it seems to me that there would no reason to raise the issue of the PSC’s impartiality only with respect to Douglas’ application for the position. I note that David did not indicate whether the PSC members that considered the applications of Stephen, Douglas, and Patrick were also members of the PSC at the time of the Lackston Robinson litigation. Surely this must be an important factor in assessing the issue of bias, as claimed by David.

Stephen’s lack of court-room experience
Apart from criticizing Stephen’s lack of court-room experience, David disagreed with my assessment of Stephen as one of Jamaica’s brightest legal minds. According to David, he was “struggling to see the basis” upon which I arrived at this view. I am not sure if David has seen Stephen’s resume. I attach Stephen’s resume for your own consideration and judgment. As I said to Mutty in my interview, Stephen could get a job any time, anywhere.
With respect to court –room experience, while it is true that Stephen is not a litigation specialist per se, I believe that Stephen’s resume clearly shows his exposure to not only domestic, but international tribunals.
More importantly, however, I am not sure of the basis upon which David asserts the primacy of litigation experience in discharging the role of Solicitor General. According to David, there is a rating sheet for the job of Solicitor General, which accords the greatest weight to litigation experience. David did not identify the provenance of this document. As far as I am aware, there is no sound basis for this assertion, for the reasons below.

Firstly, 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. 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. For your information, here is a link to job description for the Solicitor General of Trinidad & Tobago. http://www.ttgov.gov.tt/ttgov/news/solicitorgeneral.asp. The job of the SG of T&T is analogous to the job of the Solicitor General of Jamaica. You will note that 50% of the job is managerial, with 5% being devoted to litigation.

I think it is important to point out that Jamaica’s longest serving Solicitor General, the late Dr. Ken Rattray, while a competent litigator, did not spend most of his time on litigation. While he did appear in a few high profile cases, Dr. Rattray was ultimately far better known for his work in international law (such as the law of the sea). Stephen is also primarily an international lawyer.
Secondly, the legal work of the Jamaica Attorney General’s department covers five areas, of which litigation is just one. The other divisions are: general advice, international, commercial, and constitutional. It is unlikely that any candidate for SG will be an expert in all of these areas. You will however note that Stephen’s expertise covers at least four of these five areas. In the absence of any evidence to the contrary, I presume that the PSC took this fully into consideration in arriving at this recommendation.

Finally, from a point of view of practicality, I don’t think it would 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. Accordingly, while Patrick Foster and Douglas Leys might be in court “every day” (according to David), this is hardly likely to work well with the demands of the post of SG. For the sake of correction, it should be noted that Douglas is currently on secondment to the Caribbean Development Bank (for a few years now) and I rather doubt that he would be seen in court every day as David suggests.


Stephen’s “consistent criticism” of Bruce Golding

David asserted that Stephen has essentially disqualified himself for the post of SG, but virtue of his “consistent criticism” of Bruce Golding. In this respect, David referred to Stephen’s role as columnist for the Daily Gleaner. My own research does not reveal any foundation for David’s assertion. Indeed, I have only uncovered two columns in which Stephen was openly critical of Bruce Golding. The last one that I unearthed was dated September 30, 2002, when Stephen criticized Golding’s return to the JLP. In the public interest, I would invite David to adduce evidence to support his contention. Certainly he must be aware that Stephen is hardly in a position to defend himself publicly; accordingly, full disclosure is imperative.
According to David:
a) he cannot reconcile the notion of a government lawyer being consistently critical of the head of government;
b) The relationship of the SG and the government can be likened to a lawyer/client relationship; accordingly, such a relationship cannot endure when “the client has no confidence in the lawyer”.
c) Stephen should go to the PM and offer to withdraw his candidacy, more for reasons of “class” than “professionalism”.

Firstly, there is no constitutional or legal requirement that the Solicitor General, or any other permanent members of the Attorney General’s Chambers, command the confidence of the Prime Minister or the Attorney General. It is the Public Services Commission that must repose confidence in the Solicitor General, not the political directorate. 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.
Secondly, 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.

Based on these considerations, there is no rational basis for Stephen to go to the Prime Minister to offer to withdraw his candidacy. Stephen fairly competed for and won selection as Solicitor General in accordance with the law.


FUNDAMENTAL ISSUE

It goes without saying that David and the JFJ are entitled to question the decisions of the PSC or any other constitutional body for that matter. You are most certainly entitled to question whether Stephen Vasciannie is the best qualified candidate for the job of Solicitor General. However, in this case, the fundamental issue is whether the constitution is being honoured or undermined by the government. Even if one disagrees on the recommendation of the PSC, there is one thing that is beyond debate: selection of a Solicitor General is the constitutional prerogative of the PSC and not the political directorate.

As matters stand now, the government continues to oppose the selection of the PSC in violation of the constitution. As you are aware, the Jamaica Constabulary Force is threatening to oppose any recommendation made by the Police Services Commission of any candidate that does not come from their ranks. If the government is allowed to set a precedent of defying the PSC, how then do we morally demand compliance by the police of a recommendation by the Police Services Commission that they (the police) do not support?

At the end of the day, it is immaterial whether Stephen, Douglas, or Patrick ultimately occupies the position of Solicitor General. Solicitors-General come and go. What does not is principle. Accordingly, in the interest of justice and the rule of law, I exhort you and the JFJ to demand that the government take the necessary steps to protect the office of Solicitor General and the constitutional autonomy of the PSC.



Hilaire