Misbehaviour, the PSC and the Chief Servant
By Hilaire Sobers
Sunday, December 30, 2007
December 16, 2007:
The result of last Monday's election has reinforced the need for a new paradigm, a new approach to governance that converts the energy generated by competitive politics into nation-building power.
While we take pride in the remarkable capacity of our democracy to effect change and facilitate the peaceful and orderly transfer of power, we must enrich the value of that democracy by seizing this opportunity to bring our people back together. We must, by word and deed, actualise the ideal that we are one nation under God, with one government serving one people. We must ensure that those who may think that they did not win are reassured that they have not lost. We must retire the culture where one set of Jamaicans speaks of "the government dem" as if it were a hostile, alien force. I want to see a new order in which all the people will regard the government, no matter which party forms it, as "our government".
I can scarcely believe that these inspiring words were uttered by Bruce Golding only three months ago at his inauguration as Jamaica's eighth prime minister. Prior to his elevation, the self-described Chief Servant had spent many years in the political wilderness, championing the cause of constitutional reform as a means of transcending Jamaica's deeply entrenched culture of political tribalism.
The Chief Servant had previously proclaimed that this tribalism was fed by an over-concentration of power in the hands of the prime minister, something the Chief Servant previously considered loathsome to his constitutional sensibilities.
The Chief Servant's proclaimed mission of political regeneration has not prevented him from firing the PSC for their audacious insistence on complying with the constitution of Jamaica instead of the Chief Servant's arbitrary dictates. Despite the clear constitutional role of the Public Service Commission as a check and balance on prime ministerial power, the Chief Servant has summarily fired the PSC for "misbehaviour", without first according them the right to be heard in their own defence.
According to the Chief Servant, the dismissal of the PSC was warranted because of "persistent misconduct and unlawful behaviour" in discharging its functions. Among the counts of misbehaviour cited by the prime minister are:
(a) "blatant disregard for procedural fairness and natural justice";
(b) the PSC's supposed failure to comply with a judgment of Mr Justice Jones; and
(c) participation by one or more PSC members in decisions in which their input might have been tainted by bias. It has also been reported that the Chief Servant charges the PSC with misbehaviour for including non-PSC members in their decision-making process leading to the recommendation of Stephen Vasciannie as Jamaica's next solicitor general.
In his wisdom, our prime ministerial champion of constitutional probity has accused the PSC of failing to observe "procedural fairness and natural justice", while simultaneously failing to accord them the same procedural fairness and natural justice before firing them.
The nature of the PSC's constitutional functions inherently places it in tension with the political directorate, as indeed are other independent constitutional functionaries like the auditor general and the chief justice. Naturally, the PSC's recommendations will not always find favour with the political directorate. It takes little imagination to see the danger of allowing a political directorate to ascribe misbehaviour to the PSC where the PSC's recommendations 'offend' the political directorate.
To put it bluntly, the prime minister's allegations of misbehaviour on the part of the PSC do not stand up to scrutiny.
Firstly, in the absence of any hearing afforded to the PSC members, the prime minister appears to have relied entirely on his own subjective view of what constitutes misbehaviour. As already mentioned, it is trite law that persons facing an adverse decision, such as dismissal, are entitled to be heard in their own defence before such a decision is taken or executed.
Had the PM given the PSC the opportunity to be heard, it might have been possible for them to not only defend themselves against the allegations of misbehaviour, but perhaps take remedial action (other than resignation), if the allegations of misbehaviour were established. Surely, this would have been preferable to publicly assailing the reputations of the PSC members, four of whom happen to be members of the Order of Jamaica.
According to the PM, the misbehaviour of the PSC included a "blatant disregard for procedural fairness and natural justice". This particular misbehaviour, according to the PM, was the subject of 'scathing comments' by the Supreme Court when it quashed a decision of the PSC to retire Lackston Robinson in the public interest.
For the PM, following this decision, "it would have been the honourable thing for members of the Commission to have tendered their resignations en bloc". The PM then went on to accuse the PSC of persisting "in its vindictiveness by contriving to circumvent and frustrate the decision of the Court".
First of all, the ruling of the Supreme Court was delivered in August 2007 at a time when Mr Golding was still leader of the opposition. I have found no record of any objections expressed by Mr Golding to the behaviour of the PSC, or indeed any call for their resignations. What is more, if Mr Golding felt so strongly about the conduct of the PSC members, why didn't he ask for their resignations upon becoming prime minister?
Further, if Mr Golding lacked such confidence in the PSC members, how is it they were allowed to process the applications for solicitor-general without prime ministerial impediment? Initially, when the PSC selected Stephen Vasciannie, the principal objection raised was not impropriety on the part of the PSC, but Professor Vasciannie's supposed lack of litigation experience. It is only when the PSC declined to reconsider its recommendation, that the allegations of misbehaviour began to surface.
Finally, in respect of the PSC supposedly contriving to circumvent and frustrate the decision of the Supreme Court, the prime minister has given no particulars of this behaviour from which the public could assess for itself whether the PSC did behave in this manner as alleged. It is quite conceivable that the PSC's conduct following the Supreme Court ruling was in keeping with legal advice that it received from the Attorney General's Chambers. This would be a responsible approach to take, and would hardly constitute misbehaviour.
The prime minister's complaint about the inclusion of non-PSC members in the decision-making process of the PSC is hopelessly without merit. The Public Service Regulations clearly prescribe a role for the input of non-PSC members in the PSC's consideration and selection of candidates for posts like the solicitor general. Surely, constitutional misbehaviour cannot possibly include conduct that is authorised by law.
In this disgraceful episode of Jamaica's constitutional history, I can think of no better exemplar of misbehaviour than the Chief Servant himself. In one fell swoop, the Chief Servant has mutilated the rule of law, undermined the autonomy of the PSC, and inflicted serious damage on the office of solicitor general.
In being a conduit for prime ministerial tyranny, the dignity of the office of the governor general has also not escaped untarnished. The behaviour of the Chief Servant represents a betrayal of the vision he articulated on September 11, 2007. I fear that this betrayal will haunt Jamaica for generations to come.
By Hilaire Sobers
Sunday, December 30, 2007
December 16, 2007:
The result of last Monday's election has reinforced the need for a new paradigm, a new approach to governance that converts the energy generated by competitive politics into nation-building power.
While we take pride in the remarkable capacity of our democracy to effect change and facilitate the peaceful and orderly transfer of power, we must enrich the value of that democracy by seizing this opportunity to bring our people back together. We must, by word and deed, actualise the ideal that we are one nation under God, with one government serving one people. We must ensure that those who may think that they did not win are reassured that they have not lost. We must retire the culture where one set of Jamaicans speaks of "the government dem" as if it were a hostile, alien force. I want to see a new order in which all the people will regard the government, no matter which party forms it, as "our government".
I can scarcely believe that these inspiring words were uttered by Bruce Golding only three months ago at his inauguration as Jamaica's eighth prime minister. Prior to his elevation, the self-described Chief Servant had spent many years in the political wilderness, championing the cause of constitutional reform as a means of transcending Jamaica's deeply entrenched culture of political tribalism.
The Chief Servant had previously proclaimed that this tribalism was fed by an over-concentration of power in the hands of the prime minister, something the Chief Servant previously considered loathsome to his constitutional sensibilities.
The Chief Servant's proclaimed mission of political regeneration has not prevented him from firing the PSC for their audacious insistence on complying with the constitution of Jamaica instead of the Chief Servant's arbitrary dictates. Despite the clear constitutional role of the Public Service Commission as a check and balance on prime ministerial power, the Chief Servant has summarily fired the PSC for "misbehaviour", without first according them the right to be heard in their own defence.
According to the Chief Servant, the dismissal of the PSC was warranted because of "persistent misconduct and unlawful behaviour" in discharging its functions. Among the counts of misbehaviour cited by the prime minister are:
(a) "blatant disregard for procedural fairness and natural justice";
(b) the PSC's supposed failure to comply with a judgment of Mr Justice Jones; and
(c) participation by one or more PSC members in decisions in which their input might have been tainted by bias. It has also been reported that the Chief Servant charges the PSC with misbehaviour for including non-PSC members in their decision-making process leading to the recommendation of Stephen Vasciannie as Jamaica's next solicitor general.
In his wisdom, our prime ministerial champion of constitutional probity has accused the PSC of failing to observe "procedural fairness and natural justice", while simultaneously failing to accord them the same procedural fairness and natural justice before firing them.
The nature of the PSC's constitutional functions inherently places it in tension with the political directorate, as indeed are other independent constitutional functionaries like the auditor general and the chief justice. Naturally, the PSC's recommendations will not always find favour with the political directorate. It takes little imagination to see the danger of allowing a political directorate to ascribe misbehaviour to the PSC where the PSC's recommendations 'offend' the political directorate.
To put it bluntly, the prime minister's allegations of misbehaviour on the part of the PSC do not stand up to scrutiny.
Firstly, in the absence of any hearing afforded to the PSC members, the prime minister appears to have relied entirely on his own subjective view of what constitutes misbehaviour. As already mentioned, it is trite law that persons facing an adverse decision, such as dismissal, are entitled to be heard in their own defence before such a decision is taken or executed.
Had the PM given the PSC the opportunity to be heard, it might have been possible for them to not only defend themselves against the allegations of misbehaviour, but perhaps take remedial action (other than resignation), if the allegations of misbehaviour were established. Surely, this would have been preferable to publicly assailing the reputations of the PSC members, four of whom happen to be members of the Order of Jamaica.
According to the PM, the misbehaviour of the PSC included a "blatant disregard for procedural fairness and natural justice". This particular misbehaviour, according to the PM, was the subject of 'scathing comments' by the Supreme Court when it quashed a decision of the PSC to retire Lackston Robinson in the public interest.
For the PM, following this decision, "it would have been the honourable thing for members of the Commission to have tendered their resignations en bloc". The PM then went on to accuse the PSC of persisting "in its vindictiveness by contriving to circumvent and frustrate the decision of the Court".
First of all, the ruling of the Supreme Court was delivered in August 2007 at a time when Mr Golding was still leader of the opposition. I have found no record of any objections expressed by Mr Golding to the behaviour of the PSC, or indeed any call for their resignations. What is more, if Mr Golding felt so strongly about the conduct of the PSC members, why didn't he ask for their resignations upon becoming prime minister?
Further, if Mr Golding lacked such confidence in the PSC members, how is it they were allowed to process the applications for solicitor-general without prime ministerial impediment? Initially, when the PSC selected Stephen Vasciannie, the principal objection raised was not impropriety on the part of the PSC, but Professor Vasciannie's supposed lack of litigation experience. It is only when the PSC declined to reconsider its recommendation, that the allegations of misbehaviour began to surface.
Finally, in respect of the PSC supposedly contriving to circumvent and frustrate the decision of the Supreme Court, the prime minister has given no particulars of this behaviour from which the public could assess for itself whether the PSC did behave in this manner as alleged. It is quite conceivable that the PSC's conduct following the Supreme Court ruling was in keeping with legal advice that it received from the Attorney General's Chambers. This would be a responsible approach to take, and would hardly constitute misbehaviour.
The prime minister's complaint about the inclusion of non-PSC members in the decision-making process of the PSC is hopelessly without merit. The Public Service Regulations clearly prescribe a role for the input of non-PSC members in the PSC's consideration and selection of candidates for posts like the solicitor general. Surely, constitutional misbehaviour cannot possibly include conduct that is authorised by law.
In this disgraceful episode of Jamaica's constitutional history, I can think of no better exemplar of misbehaviour than the Chief Servant himself. In one fell swoop, the Chief Servant has mutilated the rule of law, undermined the autonomy of the PSC, and inflicted serious damage on the office of solicitor general.
In being a conduit for prime ministerial tyranny, the dignity of the office of the governor general has also not escaped untarnished. The behaviour of the Chief Servant represents a betrayal of the vision he articulated on September 11, 2007. I fear that this betrayal will haunt Jamaica for generations to come.
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