Response to Ken Chaplin's column of December 25, 2007

This is an edited version of a response that I sent to Ken Chaplin following his column of December 25, 2007 entitled Golding, PSC and the Opposition.



December 29, 2007

Dear Ken,

1. There is no convention of resignations by Service Commissions upon the inauguration of a new administration. This applies only to statutory bodies. In any event, given the constitutional design of Service Commissions, en bloc resignations would be repugnant to the notion that these bodies are supposed to be independent of political influence. If the political directorate is allowed to reconstitute the Service Commissions at will, then clearly there is no point to having these bodies at all, as they would simply be treated or perceived as rubber stamps for political decisions. Further, if indeed a convention of resignations exists, why then didn’t the members of the Police Service Commission and the Judicial Service Commission resign after the new government took office?

2. Prof. Albert Fiadjoe, a Caribbean public law scholar, has usefully described conventions as “understandings, habits, customs, and practices which are not written down in any authoritative sense”, but which “are nevertheless obeyed by the political directorate, although they are not enforceable in the courts or by Parliament.” Prof. Fiadjoe acknowledges that there is some difficulty in determining when or whether a practice, usage or tradition has become a convention . Nevertheless, he identifies three critical attributes of conventions: (a) they help in the interpretation of the law; (b) they help to regulate the relationship between the different branches of government; and (c) they act as useful tools in adjusting the strict letter of the law to meet the imperatives of the times. An example of a constitutional convention observed in Jamaica is the selection of the Governor General by the Prime Minister. Jamaica’s constitution is silent on this point, and the convention helps to bridge this gap. Conventions serve to enhance constitutional provisions, but not to displace them.

3. You stated that the PM asked the PSC to resign, before he acted to dismiss. This is palpably untrue. I have spoken with two members of the PSC who have quite unambiguously told me that the PM never asked for their resignations prior to dismissal.

4. There is absolutely no evidence of the PNP government “packing” the PSC with PNP supporters. If indeed you have evidence of this, I do believe you should produce it. I hardly think someone with the name Sangster is likely to be a PNP supporter. Further, it is public knowledge that as a result of the Vale Royal talks, the political parties decided to initiate a practice of consensus on the selection of PSC members (which is an improvement on the consultation process). My understanding is that this new practice was applied to the current PSC members. If my understanding is correct, it would seem to me that this new practice of consensus would substantially undermine any claim of partisan appointments to the PSC.


5. You assert that Stephen Vasciannie and the PM have been at “daggers drawn” since their days in the NDM and that they are not on speaking terms. From my own inquiries, I am satisfied that this is simply not true. Stephen and I are friends, and indeed were colleagues in the NDM. I believe that had you made inquiries of the PM and Stephen Vasciannie, he might have discovered this. I was in the NDM, and I am more than familiar with the circumstances that led to Stephen’s departure. What many fail to appreciate is that neither Bruce nor Stephen had any reason to interact outside of the political context of the NDM. Non-interaction does not equal alienation. You might note that to date, Bruce Golding has never publicly said he has any disaffection with Stephen. Indeed, he has indicated the contrary in private. In any event, from a constitutional standpoint, even if Bruce and Stephen remained politically estranged, this hardly disqualifies Stephen, constitutionally, from being considered or selected for the post of Solicitor General.

6. You stated that “As solicitor general, Professor Vasciannie would have to advise the government and the prime minister”, and that “The situation would be untenable…and the PSC should have used its discretion. To force someone on the government in whom the prime minister apparently has no confidence could not have been the intention of the founding fathers of the Constitution. “
Firstly, the principal role of the SG is to manage, direct, and organize the work of the Attorney General’s Chambers. The position of SG is akin to that of a Permanent Secretary of a government ministry. As far as I am aware, the SG does not expected to directly advise the PM, this is usually done by the Attorney General. Most of the interaction done by the SG, as I understand it, is with non-political government functionaries (like Permanent Secretaries). There appears to be a common misconception that the Solicitor General acts as some sort of personal lawyer to the PM, when this is simply not the case. With respect to the supposed lack of confidence in Stephen Vasciannie, how do you explain the fact that the Attorney General has gone on record to say she has no problem with him as Deputy Solicitor General? If indeed this lack of confidence in Stephen Vasciannie exists, why even tolerate him in the AG’s Chambers at all? Ultimately, whether the SG commands the confidence of the PM is constitutionally irrelevant; what is important is that the SG commands the confidence of the PSC.

7. You stated that the Supreme Court ordered the reinstatement of Lackston Robinson. This is quite inaccurate, as the Supreme Court never made any such order. As a matter of law, judicial review proceedings are about ensuring that the decisions of public authorities are in conformity with the law, and if not, to grant relief, strike down those decisions. Judicial review is not about the Supreme Court substituting its judgment for that of the public authority under review. In the case of the PSC, the judge simply ruled that the PSC had failed to follow certain legal steps before arriving at its recommendation to retire Lackston Robinson in the public interest, and that their recommendation was therefore a legal nullity. In my view, it would’ve been beyond the jurisdiction of the court to order Lackston Robinson’s reinstatement, when indeed it was open to the PSC to repeat the recommendation, but this time, following the legal steps that they had previously omitted. Contrary to being under any obligation to reinstate Lackston Robinson, the PSC continued to have the constitutional authority to retire him in the public interest. Instead, the PSC attempted to reinstate him in the public service, albeit in a different position. The PSC, as you may know, is also authorized to transfer public service officers. Ultimately, therefore, to argue that the PSC has essentially ignored the Court’s order (as evidence of misbehaviour) is completely untenable. I would suggest that you read the judgment for yourself if you have not already done so. It might interest you to know that the PSC’s actions after the judgment in seeking to reassign Lackston Robinson to another part of the public service were grounded in advice they received from the AG’s chambers.

8. As I said in a letter published in the Daily Gleaner of December 18, 2007, misbehaviour is a legal construct, and not a simple question of fact. From a legal standpoint, ‘misbehaviour” cannot be defined, much less established, by individuals (including the PM) according to their own personal view of misbehaviour. I note that your column expressed no concern over the fact that the PSC members were not afforded basic natural justice before being dismissed. Interestingly, one of the counts of misbehaviour leveled at the PSC by the PM is its supposed failure to respect the principles of natural justice. You mentioned this is in your column, yet, curiously, you did not take issue with the PM’s failure to accord the very same thing to the PSC members before dismissing them. Why not? I find it quite curious that in the main, public commentators have been more concerned about the personal comfort of the PM with Stephen Vasciannie than the palpable violation of the rights of the PSC members, and indeed those of Stephen Vasciannie himself. In the case of Stephen, he fairly competed for, and won selection as SG. Does this not, in your view, create a right to be appointed in accordance with the constitution? If not a right, does Stephen not have a legitimate expectation of being appointed, in the absence of any established legal flaws in the constitutional processes that led to his selection?

9. Unfortunately, I think that you have overlooked some, if not all of the implications of this constitutional crisis. The actions of the government cannot help but damage the office of Solicitor General and not to mention the constitutional autonomy of the PSC. Any other person who is now appointed to the post of SG by newly constituted PSC must necessarily be seen as a political appointee of the JLP government, as opposed to an independent public officer. Similarly, a newly constituted PSC cannot avoid being perceived as an arm of the political directorate. Stephen has been a Deputy Solicitor General for the past 4 ½ years. Given the government’s stance, how is he expected to function effectively in this capacity either now, or in the event that someone else is selected? For my money, Stephen Vasciannie represents one of our brightest and best professionals. Given the well-documented brain drain that has afflicted Jamaica, do you believe that the country can afford to squander a talent like Stephen? How many accomplished professionals in the Jamaican diaspora do you think would be inspired to return to Jamaica to offer themselves for public service, having regard to the treatment meted out to Stephen Vasciannie? The Prime Minister has essentially arrogated to himself a veto power over the selections of the PSC. What is there to prevent him from exercising a similar veto over selections of the Police Service Commission or the Judicial Service Commission? How does this arrogation of prime ministerial power square with the JLP’s clear manifesto promise to reduce the concentration of prime ministerial power and to make the executive arm of the State more accountable?

SUPPLEMENTAL COMMENTS

1. Many public commentators have deliberately, in my view, mischaracterized Stephen Vasciannie's 'dead cat' reference which first appeared in his Gleaner column of September 30, 2002:. http://www.jamaica-gleaner.com/gleaner/20020930/cleisure/cleisure2.html.
Any reasonable reading of the article would reveal that Stephen Vasciannie was using a metaphor to describe the effect of Bruce Golding's return to the JLP shortly before the 2002 general elections. As you would see from the column, the metaphor was compared with another metaphor: a torpedo to the hull of a ship. In simple language, Stephen was not likening Bruce Golding to a dead cat, but merely remarking that the return of Bruce Golding would do nothing more than cause momentary concern for the PNP, as opposed to seriously jeopardizing their chances of winning the general elections in 2002. Given that the PNP did in fact win those elections, despite the return of Mr. Golding, it would appear that Prof. Vasciannie's observation turned out to be quite correct.

2. Led by Ken Jones, attempts were made to falsely characterize Stephen’s letter of advice to the DPP on the Trafigura issue as partisan and unprofessional. Up to this week, Mark Wignall reproduced this blatant falsehood. I presume that you have already seen the letter of advice, which was reproduced in full in the Sunday Herald some weeks ago. If you have not already seen the letter, I can pass a copy to you for your consideration. The myth of Stephen’s partisan advice to the then government of Jamaica has persisted despite a letter to the Gleaner by the acting Solicitor General that was published last month. I too, had a couple of letters published in the Gleaner that clearly refuted Ken Jones’ claim of a partisan or unprofessional agenda at work. In essence, Stephen simply advised on the domestic and international law governing the request from the Netherlands authorities to come to Jamaica to investigate Trafigura. In this regard, he advised that a ministerial order was required as a prerequisite to allowing the Netherlands authorities to come to Jamaica. He further advised on how Jamaica’s international obligations might be impacted, should a ministerial order not be issued. In this respect, he did nothing more than what a Deputy Solicitor General acting on behalf of the Attorney General would be expected to do. It should be noted that the current government has now acted on Stephen’s advice and issued a ministerial order to facilitate the Trafigura investigation.