Stephen Vasciannie and the Impasse between the government of Jamaica and the Public Service Commission
by Hilaire Sobers
Stephen Vasciannie
Dear Jamaicans,
I am Hilaire Sobers, a Jamaican attorney-at-law.
I am writing with respect to the impasse between the Public Service Commission and the government regarding the PSC's recommendation of Prof. Stephen Vasciannie to be Solicitor General. The government is apparently opposed to Prof.Vasciannie's appointment because of a purported lack of litigation experience. According to media reports, the government prefers a candidate with a specialist litigation background. While Prof. Vasciannie may not be a specialist litigator, there are two things to take into account: firstly, Prof. Vasciannie does have litigation experience, not just at the domestic level, but at the international level. Secondly, the job of solicitor general requires not just legal skills, but managerial skills as well. For your information, I attach Prof. Vasciannie's resume so that you can judge the range of his experience and skills for yourself. While the government now appears to be attempting to charge the PSC with bias in selecting Prof. Vasciannie, his resume clearly demonstrates solid credentials for the post of Solicitor General. These credentials, I would suggest, would impress any impartial, unbiased tribunal responsible for making this selection.
More troubling is that the government's position appears to be in breach of the Constitution of Jamaica. Under the Constitution, neither the Prime Minister nor the Attorney General have any right to reject or oppose what is a civil service appointment. I do not know of any precedent for the government openly defying a recommendation of a the Public Service Commission or any other Service Commission established under the Constitution. With respect to the PSC, I set out sections 125, 126 (at the bottom of this email) which demonstrate the absence of any role for the PM or AG in determining this appointment. The government is now reportedly taking steps to remove the PSC members for 'misbehaviour', citing, among other things, the presence of John Leiba (president of the Jamaican Bar Association) and Carlton Davies (the Cabinet Secretary) during the PSC's deliberations on the candidates for Solicitor General. Section 135 of the Constitution makes it clear that the proceedings of the Commission are valid, even if a person not entitled not to participate in the proceedings did take part. In any event, section 20 of the Public Service Regulations (made pursuant to the Constitution) authorize the Commission to appoint a Selection Board to assist the PSC in selecting candidates. Section 135 of the Constitution and Section 20 of the Public Service Regulations are also set out at the bottom of this email.
Regardless of whether you personally favour Prof. Vasciannie or not, I urge you to publicly or otherwise demand that the government honours the PSC's recommendation without delay, in accordance with the constitution and the rule of law. Just as we would demand that the government or the JCF honour the recommendations of the Police Service Commisison for a new Commissioner, as a matter of principle, the government should not be allowed to defy a constitution it swore to uphold. Letters, emails, faxes or other communications might be sent to the press, to the Prime Minister, the Attorney General, Cabinet Ministers, Members of Parliament, Senators and others to express your concern.
If you have any queries, please feel free to get in touch with me.
Hilaire
CONSTITUTIONAL PROVISIONS
Section 125
“(1) 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.
(2) Before the Public Service Commission advises the appointment to any public office of any person holding or acting
in any office power to make appointments to which is vested by the Constitution in the Governor-General acting on the
advice of the Judicial Service Commission or the Police Service Commission, it shall consult with the Judicial Service
Commission or the Police Service Commission, as the case may be.
(3) Before the Governor-General acts in accordance with the advice of the Public Service Commission that any public
officer should be removed or that any penalty should be imposed on him by way of disciplinary control, he shall inform the
officer of that advice and if the officer then applies for the case to be referred to the Privy Council, the Governor-General
shall not act in accordance with the advice but shall refer the case to the Privy Council accordingly;
Provided that the Governor-General, acting on the advice of the Commission, may nevertheless suspend that officer from
the exercise of his office pending the determination of the reference to the Privy Council.
(4) Where a reference is made to the Privy Council under the provisions of subsection (3) of this section, the Privy
Council shall consider the case and shall advise the Governor-General what action should be taken in respect of the officer,
and the Governor-General shall then act in accordance with such advice.
(5) Except for the purpose of making appointments thereto or to act therein or of revoking an appointment to act therein,
the provisions of this section shall not apply in relation to the office of the Director of Public Prosecutions.
Section 126
(1) Subject to the provisions of subsection (2) of this section, power to make appointments to the office of Permanent
Secretary (other than appointments on transfer from another such office carrying the same salary) is hereby vested in the
Governor-General acting on the recommendation fo the Public Service Commission.
(2) Before the Governor-General acts in accordance with a recommendation of the Public Service Commission made
under subsection (1) of this section, he shall consult the Prime Minister who may once require that recommendation
(thereafter in this subsection called the “original recommendation”) to be referred back to the Public Service Commission
for reconsideration; and if, upon such reconsideration, the Public Service Commission submits a different recommendation,
the provisions of this subsection and of subsection (2) of section 32 of this Constitution shall apply thereto as they apply to
an original recommendation.
(3) Power to make appointments to any office of the Permanent Secretary on transfer from another such office carrying
the same salary is hereby vested in the Governor-General acting on the recommendation of the Prime Minister.
(4) For the purposes of this section the office of Financial Secretary shall be deemed to be the office of a Permanent
Secretary.
135.-(1) In relation to any Commission established by
this Constitution, the Governor-General, acting in accordance
with the advice of the Commission, may by regulation
or otherwise regulate its procedure and, subject to the
consent of the Prime Minister or such other Minister as
may be authorised in that behalf by the Prime Minister,
confer powers and impose duties on any public officer or
any authority of the Government of Jamaica for the purpose
of the discharge of the functions of the Commission.
(2) At any meeting of any Commission established
by this Constitution a quorum shall be constituted if three
members are present. If a quorum is present the Commission
shall not be disqualified for the transaction of business
by reason of any vacancy among its members and any
proceedings of the Commission shall be valid notwithstanding
that some person who was not entitled so to do took
part therein.
(3) Any question proposed for decision at any
meeting of any Commission established by this Constitution
shall be determined by a majority of the votes of the
members thereof present and voting, and if on any such
question the votes are equally divided the member presiding
shall have and exercise a casting vote.
136. The question whether-
(a) any Commission established by this Constitution
has validly performed any function vested in it
by or under this Constitution;
(b) any member of such a Commission or any other
person or authority has validly performed any
function delegated to such member, person or authority in pursuance of the provisions of section
113 or, as the case may be, of section 127 or of
section 131 of this Constitution; or
(c) any member of such a Commission or any other
person or authority has validly performed any
other function in relation to the work of the
Commission or in relation to any such function
as is referred to in paragraph (b) of this section,
shall not be enquired into in any court.
PROVISIONS FROM PUBLIC SERVICE REGULATIONS
10. The Commission in considering any matter or question may consult
with any such public officer or other person as the Commission
may consider proper and desirable and may require any public officer
to attend and give evidence before it and to produce any official
documents relating to such matter or question.
19 (1) The Commission shall be responsible for the form and
manner in which applications are to be made for appointment to
public offices within its purview and for the conduct of any examinations
for recruitment to such offices, and shall determine whether any
candidate has the necessary qualifications for appointment to such
offices.
(2) The Commission may interview candidates for appointment
and shall consider in respect of each candidate-
(a) his educational qualifications;
(b) his general fitness;
(c) any previous employment of his in the public service or
otherwise; and
(d) any reports for which the Commission may call from persons
such as the principal, headmaster or headmistress of a
candidate’s university, college or school or any referees named
by the candidate.
20 (1) The Commission may from time to time appoint one or
more than one Selection Board to assist in the selection of candidates
for appointment to the public service and the composition of any
such Board and the form in which its reports are to be submitted
shall be decided by the Commission.
(2) On the consideration of any report of a Selection Board, the
Commission may in its discretion summon for interview any of the
candidates recommended by such Board.
