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PSC removal looks like old-style politics
Claude Robinson
Sunday, December 16, 2007
The dismissal of the Public Service Commission (PSC) by the governor general Thursday may be a victory for Prime Minister Bruce Golding in his bid to have a solicitor general of his liking, but the larger constitutional and political battles around the case are far from over.
Claude Robinson
For starters, the dismissed members of the PSC were reportedly seeking legal advice Thursday evening on their next steps, while lawyers for the People's National Party Opposition say they will challenge the latest developments which came as the PNP had apparently won a victory in the Supreme Court which would have blocked the governor general from taking action.
Further, Thursday's developments in and out of court have introduced a political dimension to a case that up to Wednesday was finely balanced on constitutional construct. This will certainly make it harder to reach bi-partisan consensus needed to tackle pressing problems of murder, an underperforming economy and social drift in key areas of public life.
At the time of writing (Thursday) the prime minister was reportedly moving to replace the commission with new appointees.
The hope, it appeared, was that a new commission would act quickly to quash the controversial recommendation that Professor Stephen Vasciannie be appointed solicitor general and that Douglas Leys, reportedly the prime minister's preferred candidate, be named instead.
In his letter revoking the instruments of their appointment, governor general Professor Sir Kenneth Hall said he was acting on a letter from the prime minister that they be "removed from office for misbehaviour".
The letters dated December 12 were delivered after seven on the morning of December 13, just hours before the Supreme Court was scheduled to hear an action brought by Opposition Leader Portia Simpson Miller seeking to restrain the prime minister from directing the governor general to fire the commission.
She also sought an injunction that would remain in force until the members of the PSC are afforded a fair hearing by an independent and impartial tribunal into the allegations of misbehaviour.
Hours before the court gave the PNP a writ of certiorari and granted a stay of all proceedings until January 10, the letters were delivered in what was clearly intended to be a pre-emptive strike to nullify any action taken by the courts.
The Government and the PSC have been in a constitutional skirmish since October when the prime minister made it clear to the commission that he would not accept their recommendation to appoint Mr Vasciannie as the new solicitor general.
The commission re-considered the request and declined to change their recommendation. In fact it was re-submitted to the governor general. The prime minister then wrote the governor general, requesting that he remove the commissioners on grounds of 'misbehaviour'.
Mrs Simpson Miller, in documents filed in Court, revealed that Mr Golding wrote her November 16 setting out his case for 'misbehaviour'.
One concern related to an action brought by Mr Lackston Robinson, a former deputy solicitor general (acting) against the Public Service Commission.
In that matter, the Supreme Court found, inter alia, that the Public Service Commission "displayed a cavalier attitude to justice and due process and has breached the applicant's rights to procedural fairness and natural justice. This constitutes a breach of Section 13 of the Constitution of Jamaica and is, therefore unlawful, null and void.
Further, he argued, the recommendation of the PSC for the appointment of a solicitor general was "procedurally flawed and open to challenge on the grounds of bias and conflict of interest".
The prime minister offered as particulars of possible bias the fact that the commission, in assessing the applicants for the job, "relied in part on the evaluation" provided by former Solicitor General Michael Hylton who had a "less than harmonious relationship" with Mr Leys, one of the applicants. Mr Leys had given evidence on behalf of Mr Robinson.
Another example of 'misbehaviour', according to Mr Golding, has do with the inclusion of the Cabinet Secretary and the president of the Bar Association of Jamaica on the interviewing panel that selected the solicitor general.
The last issue has been widely discredited because the constitutional arrangements allow for the inclusion of persons other than commissioners on the selection panel as long as at least three commission members are present and voting. That happened.
Questions about perception of bias and the commission's handling of the Robinson matter are issues on which honest people can genuinely disagree, and that is why that matter is still working its way through the judicial process all the way to the Privy Council. That's as it should be.
The fact that a court finds against an administrative body, a court or a judge does not, on the face of it, render that body incapable of holding office. Courts of Appeal make rulings against Supreme Court judges all the time, but the judges are not required to resign as a consequence.
I have previously expressed disagreement with the prime minister's course of action in this matter because I believed that Mr Vasciannie was properly selected by the only body authorised under the constitution to do so. I remain of that view.
For me, what is at issue is that the determination as to whether the allegations made by the prime minister constitute misbehaviour warranting the removal from office of constitutional appointees is a very serious matter and cannot be made by the prime minister's personal interpretation.
It can only be settled through a judicial process where allegations must be subject to the rule of law. Natural justice demands no less.
Removing five men and women who have earned public reputations over many years without affording them the basics of natural justice cannot be right.
PSC members, Mrs Daisy Coke, Professor Edwin Jones, (nominee of the Jamaica Civil Service Association) Dr Alfred Sangster, Mr Mike Fennell and Attorney Ms Pauline Findlay will obviously have to take their own counsel.
Actions at variance with good governance
Another concern is that the handling of the matter seems at variance with Mr Golding's stated commitment to a new process of governance and his pledge to reduce the 'awesome power' of the office of prime minister. I still believe those are his intentions.
His insistence on apologies from two of his ministers for statements advocating political victimisation in the allocation of state resources is an example of performance matching intention.
So too is his acceptance of the resignation of Gassan Azan, head of the MegaMart stores, who stepped down as chairman of Jamaica Trade and Invest in the wake of revelations that electricity bypass equipment, which interrupts the recording of the consumption of electricity supplied by the Jamaica Public Service (JPS), was found at two of Azan's stores.
Section 1.7 of the JLP manifesto, 'Appointment to sensitive posts' states that a JLP Government would, "Require that appointment to sensitive posts that are critical to the delivery of good governance to be approved by a two-thirds (2/3) majority in each House of Parliament thereby requiring consensus between the Government and the opposition.
"These include Chief Justice, President of the Court of Appeal, Director of Public Prosecutions, Public Defender, Contractor General, Judicial Services Commission, Police Services Commission, Public Services Commission, Governor of the Bank of Jamaica".
These are good ideas. In time, we will know whether the prime minister delivers on these promises. But for now, the removal of the PSC smacks of the old politics.
It is interesting that the reasons offered by the prime minister's staunchest backers for not accepting the Vasciannie recommendation has been changing over the past two months, from lack of trial experience to the latest being that Michael Manley in 1976 and Edward Seaga in 1980 set a precedent by getting new Public Service Commissions.
Fact is that such so-called precedent cannot change the constitutional position regarding the appointment and removal of the PSC.
Second, if the prime minister was acting on the basis of precedent he would have asked for the resignations right after September 3 when he took office and argued that it was a consequence on the change of Government.
It was only after the PSC made a selection that was politically unacceptable that the commission became unacceptable
for 'misbehaving'.
I find it hard to shake a feeling that this is more than Prof Vasciannie. The fact is that the PNP had been in power for over 18 years and many of the people and bureaucratic structures that the JLP has now inherited will have PNP tendencies and leanings.
It is only natural that the JLP leaders will want to have in place some key people, whom they know, trust and are comfortable with. A PSC of the prime minister's choosing will go a long way to reaching that comfort zone.
The reality, though, is that the original framers of our constitution had the good sense to write a complicated constitution that may be a humbug sometimes. But it is all we have to restrain the use of power and to protect public officers and bodies from arbitrary and unjustified removal from office.
kcr@cwjamaica.com
Claude Robinson
Sunday, December 16, 2007
The dismissal of the Public Service Commission (PSC) by the governor general Thursday may be a victory for Prime Minister Bruce Golding in his bid to have a solicitor general of his liking, but the larger constitutional and political battles around the case are far from over.
Claude Robinson
For starters, the dismissed members of the PSC were reportedly seeking legal advice Thursday evening on their next steps, while lawyers for the People's National Party Opposition say they will challenge the latest developments which came as the PNP had apparently won a victory in the Supreme Court which would have blocked the governor general from taking action.
Further, Thursday's developments in and out of court have introduced a political dimension to a case that up to Wednesday was finely balanced on constitutional construct. This will certainly make it harder to reach bi-partisan consensus needed to tackle pressing problems of murder, an underperforming economy and social drift in key areas of public life.
At the time of writing (Thursday) the prime minister was reportedly moving to replace the commission with new appointees.
The hope, it appeared, was that a new commission would act quickly to quash the controversial recommendation that Professor Stephen Vasciannie be appointed solicitor general and that Douglas Leys, reportedly the prime minister's preferred candidate, be named instead.
In his letter revoking the instruments of their appointment, governor general Professor Sir Kenneth Hall said he was acting on a letter from the prime minister that they be "removed from office for misbehaviour".
The letters dated December 12 were delivered after seven on the morning of December 13, just hours before the Supreme Court was scheduled to hear an action brought by Opposition Leader Portia Simpson Miller seeking to restrain the prime minister from directing the governor general to fire the commission.
She also sought an injunction that would remain in force until the members of the PSC are afforded a fair hearing by an independent and impartial tribunal into the allegations of misbehaviour.
Hours before the court gave the PNP a writ of certiorari and granted a stay of all proceedings until January 10, the letters were delivered in what was clearly intended to be a pre-emptive strike to nullify any action taken by the courts.
The Government and the PSC have been in a constitutional skirmish since October when the prime minister made it clear to the commission that he would not accept their recommendation to appoint Mr Vasciannie as the new solicitor general.
The commission re-considered the request and declined to change their recommendation. In fact it was re-submitted to the governor general. The prime minister then wrote the governor general, requesting that he remove the commissioners on grounds of 'misbehaviour'.
Mrs Simpson Miller, in documents filed in Court, revealed that Mr Golding wrote her November 16 setting out his case for 'misbehaviour'.
One concern related to an action brought by Mr Lackston Robinson, a former deputy solicitor general (acting) against the Public Service Commission.
In that matter, the Supreme Court found, inter alia, that the Public Service Commission "displayed a cavalier attitude to justice and due process and has breached the applicant's rights to procedural fairness and natural justice. This constitutes a breach of Section 13 of the Constitution of Jamaica and is, therefore unlawful, null and void.
Further, he argued, the recommendation of the PSC for the appointment of a solicitor general was "procedurally flawed and open to challenge on the grounds of bias and conflict of interest".
The prime minister offered as particulars of possible bias the fact that the commission, in assessing the applicants for the job, "relied in part on the evaluation" provided by former Solicitor General Michael Hylton who had a "less than harmonious relationship" with Mr Leys, one of the applicants. Mr Leys had given evidence on behalf of Mr Robinson.
Another example of 'misbehaviour', according to Mr Golding, has do with the inclusion of the Cabinet Secretary and the president of the Bar Association of Jamaica on the interviewing panel that selected the solicitor general.
The last issue has been widely discredited because the constitutional arrangements allow for the inclusion of persons other than commissioners on the selection panel as long as at least three commission members are present and voting. That happened.
Questions about perception of bias and the commission's handling of the Robinson matter are issues on which honest people can genuinely disagree, and that is why that matter is still working its way through the judicial process all the way to the Privy Council. That's as it should be.
The fact that a court finds against an administrative body, a court or a judge does not, on the face of it, render that body incapable of holding office. Courts of Appeal make rulings against Supreme Court judges all the time, but the judges are not required to resign as a consequence.
I have previously expressed disagreement with the prime minister's course of action in this matter because I believed that Mr Vasciannie was properly selected by the only body authorised under the constitution to do so. I remain of that view.
For me, what is at issue is that the determination as to whether the allegations made by the prime minister constitute misbehaviour warranting the removal from office of constitutional appointees is a very serious matter and cannot be made by the prime minister's personal interpretation.
It can only be settled through a judicial process where allegations must be subject to the rule of law. Natural justice demands no less.
Removing five men and women who have earned public reputations over many years without affording them the basics of natural justice cannot be right.
PSC members, Mrs Daisy Coke, Professor Edwin Jones, (nominee of the Jamaica Civil Service Association) Dr Alfred Sangster, Mr Mike Fennell and Attorney Ms Pauline Findlay will obviously have to take their own counsel.
Actions at variance with good governance
Another concern is that the handling of the matter seems at variance with Mr Golding's stated commitment to a new process of governance and his pledge to reduce the 'awesome power' of the office of prime minister. I still believe those are his intentions.
His insistence on apologies from two of his ministers for statements advocating political victimisation in the allocation of state resources is an example of performance matching intention.
So too is his acceptance of the resignation of Gassan Azan, head of the MegaMart stores, who stepped down as chairman of Jamaica Trade and Invest in the wake of revelations that electricity bypass equipment, which interrupts the recording of the consumption of electricity supplied by the Jamaica Public Service (JPS), was found at two of Azan's stores.
Section 1.7 of the JLP manifesto, 'Appointment to sensitive posts' states that a JLP Government would, "Require that appointment to sensitive posts that are critical to the delivery of good governance to be approved by a two-thirds (2/3) majority in each House of Parliament thereby requiring consensus between the Government and the opposition.
"These include Chief Justice, President of the Court of Appeal, Director of Public Prosecutions, Public Defender, Contractor General, Judicial Services Commission, Police Services Commission, Public Services Commission, Governor of the Bank of Jamaica".
These are good ideas. In time, we will know whether the prime minister delivers on these promises. But for now, the removal of the PSC smacks of the old politics.
It is interesting that the reasons offered by the prime minister's staunchest backers for not accepting the Vasciannie recommendation has been changing over the past two months, from lack of trial experience to the latest being that Michael Manley in 1976 and Edward Seaga in 1980 set a precedent by getting new Public Service Commissions.
Fact is that such so-called precedent cannot change the constitutional position regarding the appointment and removal of the PSC.
Second, if the prime minister was acting on the basis of precedent he would have asked for the resignations right after September 3 when he took office and argued that it was a consequence on the change of Government.
It was only after the PSC made a selection that was politically unacceptable that the commission became unacceptable
for 'misbehaving'.
I find it hard to shake a feeling that this is more than Prof Vasciannie. The fact is that the PNP had been in power for over 18 years and many of the people and bureaucratic structures that the JLP has now inherited will have PNP tendencies and leanings.
It is only natural that the JLP leaders will want to have in place some key people, whom they know, trust and are comfortable with. A PSC of the prime minister's choosing will go a long way to reaching that comfort zone.
The reality, though, is that the original framers of our constitution had the good sense to write a complicated constitution that may be a humbug sometimes. But it is all we have to restrain the use of power and to protect public officers and bodies from arbitrary and unjustified removal from office.
kcr@cwjamaica.com
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