Hall (left) and Golding (right)

The Editor, Sir:

I am compelled to respond to an article which you published in your edition of Wednesday, December 26, 2007, entitled 'Two bulls can't reign in the same pen' written by the Reverend Cyril C. Clarke.

The clergyman, in an attempt to educate your readers in what he describes as "The role and privilege of the Prime Minister and the power invested in him by the Constitution," committed the cardinal sin of misleading them either through ignorance or mischief.

The reverend gentleman was making reference to the constitutional roles played by the Prime Minister, the Governor-General and the Public Service Commission in the appointment of the Solicitor General.

Time and space fail to afford me the opportunity to quote all of the relevant sections of the Constitution or cite all of the leading cases and articles on the subject. I hope that one of my learned colleagues will soon be able to do so.

I must, however, correct some of the fallacies enumerated by Reverend Clarke.

It is untrue that "the Solicitor General is appointed on the acceptance, approval and recommendation of the Prime Minister". It is also incorrect to state that "if the Prime Minister does not approve and recommend the individual the Governor-General cannot act". If Reverend Clarke is correct, the Prime Minister would already have appointed a new Solicitor General since the resignation of the former occupant more than six weeks ago, and we would not now have the current imbroglio between the Prime Minister, the Leader of the Opposition, and the Members of the Public Service Commission. Section 125 (i) of the Constitution entitled "Appointment etc., of Public Officers" reads as follows: "Subject to the provision 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." It is, therefore, clear that the appointment of the Solicitor General is not the prerogative of the Prime Minister but of the Governor-General and the Public Service Commission.

The process outlined by Reverend Clarke for the appointment of the Solicitor General is fundamentally flawed. He is correct in stating that "the Public Service Commission receives and considers applications." Also, "that a selection (sic) is made and the successful applicant is referred to the Governor-General." He is, however, incorrect to state that "the Governor-General, in turn, refers the Public Service Selection (sic) to the Prime Minister for his approval." If this was correct, the role of the commission in making the recommendation and the role of the Governor-General in making the appointment under Section 125 (i) would be futile.

Within the PM's rights

I agree with Reverend Clarke that the Prime Minister is within his rights "if for good and justifiable reasons, he chooses not to accept the selection (sic) of the Public Service Commission but asks for reconsideration." I also agree that in this event, "such a request should not be frowned upon or lead to abuse of the Prime Minister." However, in my view, if the commission, after due consideration, reaffirms its nominee to the Governor-General over the objections of the Prime Minister, his only options are to accept the nominee or attempt to frustrate the process by dismissing the members of the commission - after consultation with the Leader of the Opposition - on the grounds of misbehaviour. The action by the Prime Minister in dismissing the commission has been challenged by the Leader of the Opposition in the court and it remains to be seen whether the Prime Minister will be able to justify his decision.

I would also agree this was not suggested by Reverend Clarke - that the Governor-General would be within his rights to request the commission to reconsider its recommendation before he makes the appointment. However, if after due reconsideration, the commission reaffirms its nominee, in my view, the Governor-General is obliged to appoint the nominee. It must, however, be conceded that others are of the view that in such an event, the Governor-General is not so obliged.

It is unclear as to who should appoint the Solicitor General if the Governor-General is unable or unwilling to do so. What is clear is that the Prime Minister cannot appoint, as Reverend Clarke believes. Neither can the Governor-General act outside of the recommendation of the Public Service Commission.

In the current scenario, I am informed that the commission submitted its recommendation to the Governor-General before it was dismissed by the Prime Minister. I am also informed that the Governor-General returned the recommendation to the commission for its consideration. Because there is now no commission to reconsider the recommendation and the court has barred the Prime Minister from appointing a new commission, the stage is now set for a constitutional impasse between the executive, legislative and judicial branches with unforeseen but predictable repercussions for the country.

I am, etc.,

CLAYTON MORGAN

Clayton Morgan and Company