More on the PSC/Vasciannie imbroglio

[Karl]

The PSC/Vasciannie imbroglio
published: Tuesday | December 4, 2007


Vasciannie
Ken Jones' misrepresentation
The Editor, Sir:
Despite Mr. Ken Jones' claim of being a 'trained and experienced journalist', he continues to misrepresent the letter of advice to the DPP prepared by Prof. Stephen Vasciannie on the request for legal assistance from the Nether-lands authorities to investigate the Trafigura affair. It is either that letter of advice is beyond Mr. Jones' comprehension or he is deliberately misinterpreting it.

In his letter to The Gleaner on November 18, Mr. Jones maintained that (a) the previous government was not inclined to allow an investigation by the Netherlands, and was encouraged by Prof. Vasciannie's advice to "withhold cooperation"; (b) Prof. Vasciannie's advised the DPP that he "would not be authorised by Jamaican law to give the assistance sought by the Dutch (sic) Government"; (c) that Prof. Vasciannie offered no "suggestion that might have facilitated cooperation in the search for justice in the this issue of great concern to the people of Jamaica". In his letter, the trained and experienced journalist, Mr. Jones, completely neglected to point out that most essential part of the advice: that a ministerial order was required under the Mutual Assistance (Criminal Matters) Act before any request from the Netherlands authorities could be entertained by the Jamaican government. Without such an order, the DPP would not be legally authorised to give the assistance sought. It is only in his letter of December 02 that Mr. Jones is finally acknowledging that Prof. Vasciannie had correctly advised that "Jamaica had not up to then taken the legal steps necessary to facilitate the requested assistance".

Convenient loophole
It is this glaring omission from Mr. Jones' letter of November 18 that prompted my initial response. Unlike Mr. Jones, my training tells me that selective excerpts from a document without placing them in proper context, do not reflect the highest standards of either journalism or legal analysis.

The trained and experienced Mr. Jones now speciously claims that Prof. Vasciannie essentially provided the Government with a "convenient loophole to avoid being investigated" by advising the DPP that "Jamaica would have a full defence in international law in response to any Dutch claim to the effect that the country is not giving full effect to the terms of the convention". This reflects not only a failure to understand the import of this limb of Prof. Vasciannie's advice, but ignorance of the nature of international law and how it interacts with domestic law.

In summary, Prof. Vasciannie's advice did nothing more than to advise the DPP on the international and domestic law governing the request by the Netherlands government regarding the Trafigura matter. The advice clearly articulated the domestic legal requirements for acceding to the request; and whether failure to fulfil those domestic legal requirement would place Jamaica in breach of its obligations under international law. Indeed, it appears that the current government has now availed itself of Prof.
Vasciannie's advice to issue a ministerial order to accommodate the request of the Netherlands Government.
I am, etc., O. HILAIRE SOBERS

[Karl]

The law is clear and straight

The Editor, Sir:
Section 125 (1) of the Constitution states that: "subject to the provisions of this Constitution, power to make appointments to public offices and to remove and to exercise disciplinary control over persons holding or acting in any such offices is hereby vested in the Governor-General acting on the advice of the Public Service Commission".

So, the plain words of the Constitution indicate that if the Public Service Commission recommends someone for the post of Solicitor General, the Governor-General is obliged to appoint that person, for that is how he would act on its advice. Clear and straight.

Wrong person
I also notice that Section 126 on the appointment of Permanent Secretaries specifies that before the Governor-General appoints a Permanent Secretary, he should consult with the Prime Minister who may once require that the recommendation be referred back to the Public Service Commission for reconsideration. This process of consultation is said to be applicable to the Financial Secretary as well. But it is not applicable to the appointment of the Solicitor General.

Finally, it would be highly irregular, and unconstitutional, for the Prime Minister or anyone else to try to dismiss members of the Public Service Commission on the basis that the commission had selected the wrong person for a public office. Section 124(5) states the circumstances in which individual members of the commission may be dismissed. None of the grounds for dismissal is applicable in this case.
I am, etc.,
ALECIA SYLVESTER
Coral Springs, Florida
Jones

[Karl]

Bad journalism

The Editor, Sir:
Ken Jones' letter 'Sobers missed the point' published on Sunday is so correct to say that counsel should be well briefed before he/she makes an utterance on behalf of his client. However, this advice cannot be applied to Mr. Sobers, as certainly in commenting on the current issue (PSC vs Golding), I would love to think that Mr. Sobers was merely exercising his democratic right. Hence, the analogy used by Jones was not required.

But we turn to the substance of Jones's latest piece. Though a journalist with years of experience, he has demonstrated a deliberate ignorance of the basic principles on which we have chosen to organise our constitutional affairs. In that, any first year student of constitutional law or politics can tell him that as Mr. Golding is a member of the Executive, he ought not to interfere with the selection made by the Public Service Commission (PSC), as to do so would be to rob the institution of its required independence and consequently rip our Constitution into shreds.

In seeking to support the lynch mob (who want to get rid of the PSC), Jones asserts that the PSC should not frustrate the objectives of the Government duly elected by the people. This is an assertion that is wrong in law. It is wrong in law because the Constitution (and basic constitutional principles) makes it very clear that the role of the PSC (in the Vasciannie issue) is that of making a recommendation to the head of state (the G-G). It does not give the PM a role in the appointment or rejection of this person. Further, the PM should not seek to influence the process of ensuring an independent civil service with threats. These principles of independence and the separation of roles are there to check the unbridle despotic tendencies of any person.

Legally sound advice
Ken is a journalist but he writes with a level suggestive of carelessness, which seriously misrepresents his experience. How could he assert, having not seen the instructions given to the Solicitor General's Department, that advice given by counsel went beyond that which was requested. This is bad journalism. Further, I would challenge anyone to tell me what was wrong with what counsel advised the Government.

Counsel's advice was legally sound, as it recognised a salient principle of international law: some jurisdictions are dualist and some are monist. In the latter states, international treaties once signed by governments auto-matically become part of state law, while in the former states (Jamaica an example) international legal instruments require state legislature to take steps to incorporate an international legislation into local law. Certainly, it would be careless even negligent of counsel if he had not advised his client (the Government of Jamaica, not Bruce Golding) of this very important point.

Destruction
In discussing this issue, we should take a firm grip of our senses, as these are very important matters. Not only are we dealing with serious constitutional questions, if not one of the most important ones faced by us to date, but in having the Attorney-General (under the cover of parliamentary privilege) disclose the name of counsel giving the advice, we are witnessing the sudden destruction of a convention (near rule) that such things are never done for logical and sensible reasons. Ken does not address this point, but instead he goes off into one about other matters unrelated to the points raised by Sobers. Those things raised might be important, but they are unrelated to the issue at hand.
I am, etc.,
MATONDO MUKULU
Barrister (Mitre Chambers)
mukulumatondo@yahoo.co.ukddr1 London

[Mosiah]

It does not give the PM a role in the appointment or rejection of this person. Further, the PM should not seek to influence the process of ensuring an independent civil service with threats. These principles of independence and the separation of roles are there to check the unbridle despotic tendencies of any person.

And we were worried about others.

[Muadib]

Change is Good !

[Baddaz]

who is this o. hilaire sobers waxing so factual and eloquent on the issue...

[Baddaz]

claaat... a dem deh tings mi like fi si... real biganamous brains pon constitutional law come inna de muckle fi help sort it out and expose de 'despots' and ignaramous dem... nuh ramp wid de legal eagle dem, dem iz a cult unto demself and dem nuh ramp fi defen it when dem principles a get breached... love it...

[Baddaz]

yuh seit tuh mosiah... even me wid mi weeble infested brain cudda si seh sinting neva right... a who tell dem fi guh draw out de scales dem...

[Mosiah]

Nice! But why di scales having such a hard time fi balance? heh heh!

[Gamma]

him went to good school......

[Baddaz]

ok... then it would have to be kc...

just joking... considering the responder, i would guess its campion... ... i like how the lawyers dem come out in defense of vasciannie and the constitution... i would not want to go up against two obviously brilliant minds like sobers and vasciannie in a litigation... a kc/campion combo... i like it...

[Baddaz]

cause... den nuh suh it guh inna courthouse... hard fi find balance but at least it nuh one sided... mi specifically put it on cause of lazie and him one sided cronies and in support of mi former headboy, who i know iz a youth with a brilliant mind, principled and an outstanding character from wi a guh school...

although, mi think it more befitting a gamma, mi hope him wi undastan dat mi not trying to diss him people dem...