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Lead Stories The PSC/Vasciannie imbroglio
News published: Tuesday | December 4, 2007
Business
Sport
Commentary Vasciannie

Letters
Ken Jones' misrepresentation
Entertainment
The Star The Editor, Sir:
E-Financial
Gleaner Despite Mr. Ken Jones' claim of being a 'trained and experienced journalist', he
continues to misrepresent the letter of advice to the DPP prepared by Prof. Stephen
Overseas News
Vasciannie on the request for legal assistance from the Nether-lands authorities to
The Voice investigate the Trafigura affair. It is either that letter of advice is beyond Mr. Jones'
Communities comprehension or he is deliberately misinterpreting it.
Hospitality Jamaica
In his letter to The Gleaner on November 18, Mr. Jones maintained that (a) the
previous government was not inclined to allow an investigation by the Netherlands,
and was encouraged by Prof. Vasciannie's advice to "withhold cooperation"; (b)
Prof. Vasciannie's advised the DPP that he "would not be authorised by Jamaican
law to give the assistance sought by the Dutch (sic) Government"; (c) that Prof.
Web Vasciannie offered no "suggestion that might have facilitated cooperation in the
search for justice in the this issue of great concern to the people of Jamaica". In his
Jamaica-
letter, the trained and experienced journalist, Mr. Jones, completely neglected to
gleaner.com point out that most essential part of the advice: that a ministerial order was required
Search under the Mutual Assistance (Criminal Matters) Act before any request from the
Netherlands authorities could be entertained by the Jamaican government. Without
such an order, the DPP would not be legally authorised to give the assistance
Archives
sought. It is only in his letter of December 02 that Mr. Jones is finally
1998 - Now acknowledging that Prof. Vasciannie had correctly advised that "Jamaica had not up
(HTML) to then taken the legal steps necessary to facilitate the requested assistance".
1834 - Now (PDF)
Services Convenient loophole
Find a Jamaican It is this glaring omission from Mr. Jones' letter of November 18 that prompted my
Careers initial response. Unlike Mr. Jones, my training tells me that selective excerpts from
Library a document without placing them in proper context, do not reflect the highest
Power 106FM standards of either journalism or legal analysis.
Weather The trained and experienced Mr. Jones now speciously claims that Prof. Vasciannie
Subscriptions essentially provided the Government with a "convenient loophole to avoid being
News by E-mail investigated" by advising the DPP that "Jamaica would have a full defence in
Newsletter international law in response to any Dutch claim to the effect that the country is not
giving full effect to the terms of the convention". This reflects not only a failure to
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understand the import of this limb of Prof. Vasciannie's advice, but ignorance of the
Interactive nature of international law and how it interacts with domestic law.
Chat
Dating & Love In summary, Prof. Vasciannie's advice did nothing more than to advise the DPP on
the international and domestic law governing the request by the Netherlands
Free Email
government regarding the Trafigura matter. The advice clearly articulated the
Guestbook domestic legal requirements for acceding to the request; and whether failure to fulfil
ScreenSavers those domestic legal requirement would place Jamaica in breach of its obligations
Submit a Letter under international law. Indeed, it appears that the current government has now
WebCam availed itself of Prof.
Weekly Poll Vasciannie's advice to issue a ministerial order to accommodate the request of the
About Us Netherlands Government.
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Gleaner Company I am, etc.,
Contact Us O. HILAIRE SOBERS
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Stabroek News The law is clear and straight
The Editor, Sir:

Section 125 (1) of the Constitution states that: "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".

So, the plain words of the Constitution indicate that if the Public Service
Commission recommends someone for the post of Solicitor General, the Governor-
General is obliged to appoint that person, for that is how he would act on its advice.
Clear and straight.

Wrong person

I also notice that Section 126 on the appointment of Permanent Secretaries

specifies that before the Governor-General appoints a Permanent Secretary, he
should consult with the Prime Minister who may once require that the
recommendation be referred back to the Public Service Commission for
reconsideration. This process of consultation is said to be applicable to the
Financial Secretary as well. But it is not applicable to the appointment of the
Solicitor General.

Finally, it would be highly irregular, and unconstitutional, for the Prime Minister or
anyone else to try to dismiss members of the Public Service Commission on the
basis that the commission had selected the wrong person for a public office.
Section 124(5) states the circumstances in which individual members of the
commission may be dismissed. None of the grounds for dismissal is applicable in
this case.

I am, etc.,

ALECIA SYLVESTER

Coral Springs, Florida

Jones

Bad journalism

The Editor, Sir:

Ken Jones' letter 'Sobers missed the point' published on Sunday is so correct to
say that counsel should be well briefed before he/she makes an utterance on behalf
of his client. However, this advice cannot be applied to Mr. Sobers, as certainly in
commenting on the current issue (PSC vs Golding), I would love to think that Mr.
Sobers was merely exercising his democratic right. Hence, the analogy used by
Jones was not required.

But we turn to the substance of Jones's latest piece. Though a journalist with years
of experience, he has demonstrated a deliberate ignorance of the basic principles
on which we have chosen to organise our constitutional affairs. In that, any first year
student of constitutional law or politics can tell him that as Mr. Golding is a member
of the Executive, he ought not to interfere with the selection made by the Public
Service Commission (PSC), as to do so would be to rob the institution of its required
independence and consequently rip our Constitution into shreds.

In seeking to support the lynch mob (who want to get rid of the PSC), Jones
asserts that the PSC should not frustrate the objectives of the Government duly
elected by the people. This is an assertion that is wrong in law. It is wrong in law
because the Constitution (and basic constitutional principles) makes it very clear
that the role of the PSC (in the Vasciannie issue) is that of making a
recommendation to the head of state (the G-G). It does not give the PM a role in
the appointment or rejection of this person. Further, the PM should not seek to
influence the process of ensuring an independent civil service with threats. These
principles of independence and the separation of roles are there to check the
unbridle despotic tendencies of any person.

Legally sound advice

Ken is a journalist but he writes with a level suggestive of carelessness, which

seriously misrepresents his experience. How could he assert, having not seen the
instructions given to the Solicitor General's Department, that advice given by
counsel went beyond that which was requested. This is bad journalism. Further, I
would challenge anyone to tell me what was wrong with what counsel advised the
 Government.

Counsel's advice was legally sound, as it recognised a salient principle of

international law: some jurisdictions are dualist and some are monist. In the latter
states, international treaties once signed by governments auto-matically become
part of state law, while in the former states (Jamaica an example) international legal
instruments require state legislature to take steps to incorporate an international
legislation into local law. Certainly, it would be careless even negligent of counsel if
he had not advised his client (the Government of Jamaica, not Bruce Golding) of
this very important point.

Destruction

In discussing this issue, we should take a firm grip of our senses, as these are very
important matters. Not only are we dealing with serious constitutional questions, if
not one of the most important ones faced by us to date, but in having the Attorney-
General (under the cover of parliamentary privilege) disclose the name of counsel
giving the advice, we are witnessing the sudden destruction of a convention (near
rule) that such things are never done for logical and sensible reasons. Ken does not
address this point, but instead he goes off into one about other matters unrelated to
the points raised by Sobers. Those things raised might be important, but they are
unrelated to the issue at hand.

I am, etc.,

MATONDO MUKULU

Barrister (Mitre Chambers)

mukulumatondo@yahoo.co.ukddr1

London

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