Unpublished response to Mark Wignall column of Dec.27, 2007

Dear Mark,

Re: Valuable time wasted on the PSC matter- Observer –December 27, 2007

I think that your column reproduced a number of misconceptions and mistakes of law that I have repeatedly heard in public discourse on the PSC issue.

For what it is worth, I offer some comments to some portions of your column below:



Colleague columnist Ken Chaplin's excellent column on Tuesday, "Golding, PSC and the Opposition" is required reading for those wanting to see explained in simple language more of the complementary factors operating in the Jamaican Constitution (as it relates to PSC matters) between the "letter" of the law and the "spirit" of the law.


While you may consider Ken Chaplin’s column to be excellent, his analysis was fatally flawed in numerous respects:


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 haven’t the members of the Police Service Commission and the Judicial Service Commission resigned?

2. According to Ken Chaplin, 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 confirmed this.

3. There is absolutely no evidence of the PNP government “packing” the PSC with PNP supporters. I challenge you, Ken Chaplin or anybody else to produce any evidence of this. 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.

4. Ken Chaplin claims that the “ The PSC, as the Constitution allows, from time to time, brought in top officials like the Cabinet Secretary who is answerable to the prime minister…”. This gives the impression that the PSC has the final say in the selection of the Cabinet Secretary, when in fact it is the PM. Under Section 92 of the Constitution, the PSC merely provides a list of public officers to the PM, who then chooses a Cabinet Secretary from this list.

5. Ken Chaplin also asserts 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. I believe that had Ken Chaplin 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. According to Ken Chaplin, “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. “

As I was at pains to point out to you in an earlier email, the SG does not personally advise the PM. I refer you to that email which details the functions of the SG. If there is a supposed lack of confidence in Stephen Vasciannie, why then has the Attorney General already gone on record to say she has no problem with him as Deputy Solicitor General? If indeed this lack of confidence in Vasciannie exists, why even tolerate him in the AG’s Chambers at all?? There are other political factors at work, which you might wish to investigate.

7. Contrary to what Ken Chaplin claims, the Supreme Court never ordered the reinstatement of Lackston Robinson. To then say 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.


Led by an obviously power-hungry leader, Portia Simpson Miller, the Opposition PNP has allowed itself to merge normal Opposition duties with a need for hijacking government for its own narrow, selfish purposes. After 18 long years in power, the PNP is having extreme difficulty withdrawing its tentacles from all areas of the society. Having determined that the Stephen Vasciannie/PSC imbroglio is the perfect springboard from which it hopes to launch underhanded opposition ("it is not over yet") the PNP, though fragmented and bitter in factions, has taken on the role of chief bugbear to the nation as it seeks to formulate a new, workable mission.


You haven’t adduced any evidence to support your claim that the PNP is “hijacking government” or using the Vasciannie/PSC as some sot of “springboard” for “underhanded opposition”. I hold no brief for the Leader of the Opposition, as you well know, but she is more than legally and constitutionally entitled to challenge the PM’s dismissal of the PSC for failure to observe the rules of natural justice. The suit is not about forcing the government to accept Stephen Vasciannie; it is about forcing it to observe the rule of law. As a citizen of Jamaica I would imagine that you would have an interest in the protection and promotion of the rule of law. In this regard, I think it immaterial whether the protagonist in this litigation is the Opposition Leader or someone else. Unfortunately, Jamaicans so reflexively see issues through the lens of tribal politics that even when we can agree on the principle, we prefer to focus on the personalities involved.



One reader who has been observing recent events sent me the following:


"My reading is that Portia may not last another six months as leader. The issues are really out of her depth. On the other hand, Dr Peter Phillips seems to be a victim of the 'Drumblair vs Out of the womb of the working-class' syndrome.



"I don't think the Leader of the Opposition has a case against the PM. She needs to read the constitution properly. Seaga's article, 'The Governor General's balancing role' (Sunday Gleaner, February 19, 2006) should help her a great deal. Understandably, the Constitution accords the PM the final say (Sections 32, 124 and 125).


It entirely escapes your reader that the case nothing to do with whether the PM has the final say on the appointment or dismissal of PSC members, but whether the PM followed the rules of natural justice in dismissing the PSC members.



"Let's look at how the past has influenced the present:

"The Solicitor General (SG) is an employee of the government of the day. He is legal counsel to the government of the day. In addition, he prosecutes and defends cases on behalf of the government.


Perhaps you may wish to refer to my earlier remarks on this issue. Much of the public hasn’t a clue what the role and function of the SG is, and articles like yours and Ken’s serve to keep them in this ignorance.



"Prof Vasciannie's 'dead cat' remark has driven a wedge between himself and Bruce".


This has never been established. See my earlier remarks. Again, basic inquiry might serve to resolve this issue, rather than resort to suss.


"Then there is his advice to the Simpson Miller administration resulting in the denial of permission to the Dutch authorities to conduct investigation here on one of their own corporate citizens, Trafigura Beheer. The fact that a local piece of appendage was not prepared and affixed to the Treaty, ratified by both Jamaica and the Dutch, had not absolved Jamaica from its obligations. So, what was the basis of the advice-partisanship? Legal imperatives? Political consideration? Incompetence? It looks like there are questions of credibility problem and unprofessional conduct, and the Prof has disqualified himself.’


I am not sure if you have seen the letter of advice for yourself. What your reader has produced is a rank distortion of the issue, which I imagine was fueled by Ken Jones’ intellectually dishonest analysis that appeared in the Gleaner in November 2007. The acting Solicitor General clearly set out the facts/law on the issue in a letter to the Gleaner in November 2007. 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. What also escapes your reader is that the current government has actually acted on that original letter of advice, in terms of securing the necessary ministerial order to facilitate the Trafigura investigation.



"The members of the PSC do not appear to have fared out any better than the recommended candidate.



"Given what ought to have been known existing on the ground, should the PSC have made that recommendation?

"In considering the function of the PSC and determining the fate of its members, should matters such as what could be interpreted as its apparent vindictiveness against Leys, the court charge of abuse of authority, and the displaying of contempt for the court order up to the time of the revocation be overlooked? Should one expect the offices of the GG and PM to have condoned all of that?



"The nature of the conduct/behaviour of the members of the PSC seems to have spoken for itself. Consequently, one wonders what purpose the setting up of a new tribunal on the matter of natural justice would serve?


With respect, Mark, this is just nonsense. Based on the premise of your reader, if a person is arrested for an offence in which the evidence of commission appears conclusive, such a person should automatically be deprived of the right to be heard in his/her own defence. Your reader clearly doesn’t understand that misbehaviour is a legal construct, and not merely a matter of subjective opinion. I had a letter in the Gleaner of December 18, 2007 that addressed this issue comprehensively. Finally, it appears that your reader is not acquainted with the facts leading up to the supposed misbehaviour. Vindictiveness is a serious charge to level against the PSC. Neither you nor your reader has supplied any evidence to support this assertion. Your reader makes heavy weather of this supposed “court charge of abuse of authority”, without in any way comprehending that tribunals are routinely hauled over the coals in judicial review proceedings without any imputation of misbehaviour. To follow the argument of your reader to its logical conclusion, every time a judge is reversed on appeal, he/she should be cited for misbehaviour. Moreover, the Police Services Commission which recently selected our new Commissioner, was itself the subject of a similar judicial review when the court determined that it wrongfully retired Donovan O’Connor (aka Hux) in the public interest. As I pointed out to you, the PSC is not, and has never been in contempt of court. Contempt of court is a legal construct that can only be resolved by a court of law, not the court of public opinion.



"It would appear that the Leader of the Opposition is challenging the constitution rather than the PM. The PM was merely executing his constitutional obligations. A fundamental question arises. Does the court have the power to, in any way, block the PM in his constitutional track while he is about to or in the process of executing his obligations?

"One observes that in the final analysis, the constitution makes the leader a mere accomplice notwithstanding non-concurrence."

The Leader of the Opposition has not challenged the constitution, but merely the PM’s failure to observe due process. The court has the power, nay, the duty to restrain any public functionary, including the PM, if they are violating the law.

While you, Mark, may think the PSC issue is a waste of time, ensuring that the dimensions of the issue are accurately represented, is not.


Hilaire