Ken Jones, Contributor

In this February 2005 file photo, Dr. Stephen Vasciannie (second right), Deputy Solicitor General, is part of the Government's legal team which appeared before the United Kingdom-based Privy Council in the Caribbean Court of Justice case. Others (from left) are Michael Hylton, Solicitor General, Gladys Young and Simone Mayhew. Controversy surrounds the Public Service Commission's recent selection of Dr. Vasciannie as the new Solicitor General. - File

Once again a complicated Constitution is letting down the people of Jamaica. Instead of promoting unity and justice it has often created confusion and misunderstandings. Now, in this latest case of the appointment of a Solicitor General, it seems to be providing loopholes through which commonsense may fall, a formula for undermining good governance and an environment conducive to tension and political divisions in our society.

For those wishing to take the issue at face value, this controversial matter is simply an unseemly struggle between the newly elected Government of the people and an old Public Service Commission (PSC) appointed by the administration recently voted out of office. However, an in-depth examination might suggest the pattern of a plan to frustrate change and to perpetuate certain practices that flourished to the benefit of personalities rather than the Commonwealth.

The Constitution empowers the Prime Minister, in consultation with the Leader of the Opposition, to name the members of the Public Service Commission; and it gives to this body a five-year life, perhaps to coincide with the usual tenure of Parliament this may be terminated by the Governor-General under certain conditions, it is not clear whether the commission should retire and permit new appointments by a new Prime Minister. In my view, the present PSC has a moral obligation to demit office; and there may even be good grounds for termination of its services.

Unanswered questions

The commission's recent recommendation for a new Solicitor General lacks transparency and does not stand on a firm foundation. There are serious questions to answer, and if the integrity of the system is to be preserved the public should get an explanation of certain acts and utterances that have taken place leading up to the present impasse.

For instance, it is generally understood that the five lawfully appointed members of the commission were fully responsible for selecting Stephen Vasciannie as the choice for the post. In fact, this is not so. He was chosen by only three of the members along with two other persons who have no right to be influencing decisions of the commission.

Section 124 (3) of the Constitution clearly states that "No person shall be qualified to be appointed as a member of the Public Service Commission if he holds or is acting in any public office other than member of the Judicial Service Commission or member of the Police Service commission." This rule was subverted by the commission when it invited and allowed the Cabinet Secretary to play a significantly influential role in carrying out one of its primary duties, which is to advise the Governor-General concerning the appointment of public officers. The PSC went even further down an uneven road when, in addition, it took advice in this matter from the president of the Bar Association, who has no constitutional standing in this matter; and all these acts were carried out without the participation of two of the members named in accordance with the Constitution.

Breach of applicant's rights

Conflict of interest is a term and a concern currently on the agenda of our public affairs. It so happens that a few months ago the commission was chastised by the Supreme Court for its handling of a case involving the unjust retirement of a member of the Solicitor General's Department. In ruling for the offended public officer, the presiding Judge declared, " ... the Public Service Commission, in pursuing the premature retirement of the applicant, 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, null and void."

Before the matter went to court one officer of the department had strongly advised against the action being taken against his colleague. He had written officially that, "The procedure adopted by the Solicitor General and the Chief Personnel Officer and sanctioned by the PSC is, in my view, a radical departure from the spirit and intent of the Constitution and the Public Service Regulations. Indeed, if allowed to go unchecked, it has the potential to create a level of arbitrari-ness in relation to appointments to acting positions never before seen in the public service."

The position of the protesting officer was vindicated by the Supreme Court, and it is no secret that he attracted unfriendly responses for having triumphed. Since then he has not been looked upon with favourable eyes, yet his application for the job of Solicitor General was subjected to the scrutiny of those very eyes. The PSC judgement against him may have been fair, but in the circumstances, who would swear for that? It is also no secret that a member of the PSC has such an intimate relationship with one of the players in the game that suspicion of bias is understandable.

The question has arisen as to whether the present Attorney General is justified in opposing Mr. Vasciannie's appointment. Some say that this is political interference, but it is a tenuous argument that does not take into account the hard fact that the legal apparatus of the state will not function properly unless there is confidence and trust in the relationship between the Attorney General and the Solicitor General. No matter how wonderful the qualifications of the SG he will be ineffective if there is no accord with Government policy and direction.

A great concern

As an instance, it is important to note that the present administration is committed to a vigorous pursuit of the Trafigura matter. The previous government was not so inclined, and was encouraged by Vasciannie's advice to withhold cooperation with the Government of the Netherlands when it sought legal assistance, pursuant to the United Nations Convention against Transnational Organised Crime.

Both Jamaica and the Netherlands are parties to this U.N. Convention. However, Vasciannie satisfied himself, and so advised the Director of Public Prosecutions that "... you would not be authorised by Jamaican law - to give the assistance sought by the Dutch Government." He did not offer any suggestion that might have facilitated cooperation in the search for justice in this issue of great concern to the people of Jamaica.

The previous Government took Mr. Vasciannie's advice and accordingly kept the Dutch investigators out of Jamaica. Now comes a new administration and a new Attorney General wishing to facilitate the Dutch in their investigations; and the implication of the PSC's recommendation is that this Government should have this same person as its senior legal adviser. Regardless of how the Constitution may be interpreted, this, in my layman's view, makes nonsense of the realities.

Mr. Vasciannie's competence and honesty are not in question. His qualifications are under no challenge. What is at stake is that he and the people we hold accountable for our affairs may not be on the same wavelength.

Must stop it

Surely, the PSC must be aware of the entire situation as I have recorded it here. Yet, they have chosen to ignore the possibility of a constitutional crisis by asking the Governor-General to put his stamp on a controversial, potentially nation-splitting appointment. This does nothing to remove the dark doubts that have assailed the justice system of this country in recent years. Such actions must be brought to a halt; and then the immediate resignation en bloc of the present PSC would be a leap in the right direction. If they fail to do so then orderly arrangements must be made to remove all the members from office.

The Constitution is often ambiguous; and it is sometimes difficult to understand the direction charted by the framers of this document. However, it cannot be in the interest of justice and good governance that five citizens selected by the previous administration should be able to make the elected Government and its principal legal adviser impotent yet accountable for the weighty legal responsibilities placed upon them by the people of Jamaica.

Ken Jones is secretary of the Farquharson Institute of Public Affairs.