AFFIDAVIT OF PORTIA SIMPSON MILLER IN SUPPORT OF APPLICATION

FOR JUDICIAL REVIEW/ADMINISTRATIVE ORDERS

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2007 HCV 05050

IN THE MATTER OF THE CONSTITUTION OF

JAMAICA

BETWEEN PORTIA SIMPSON MILLER CLAIMANT

AND ORRETT BRUCE GOLDING 1ST DEFENDANT

AND THE ATTORNEY GENERAL

OF JAMAICA 2ND DEFENDANT

I, THE MOST HONOURABLE PORTIA SIMPSON-MILLER O.N., M.P., being duly

sworn make oath and say as follows:

1. That I am the Leader of the Opposition and the President of the Peoples

National Party and my address for the purposes of this action is 89 Old Hope

Road, Kingston 10 in the parish of Saint Andrew.

2. That in respect of my position as Leader of the Opposition I am an appointee

of the Governor General of Jamaica, I am the member of the House of

Representatives who is best able to command the support of the majority of

those members of the House who do not support the Government. That

those members as so described total twenty eight (28) out of sixty (60).
3. That the Peoples National Party is the oldest active political party in Jamaica

and has thousands of members spread across the fourteen (14) parishes of the

Island.

4. That as the Leader of the Opposition, a member of Parliament, President of

the Peoples National Party and a citizen of Jamaica, I am charged with the

responsibility of defending the Constitution of Jamaica.

5. That in my capacity as Prime Minister of Jamaica I had direct responsibility

for making recommendations to his Excellency the Governor General, after

consultation with the Leader of the Opposition, for appointments to the

public service pursuant to the Constitution. I cite as examples the fact that I

did so in relation to appointments to the posts of Chief Justice of Jamaica and

the President of the Court of Appeal and in so doing garnered a level of

experience and expertise in the subject matter of this claim.

6. That in all the circumstances, I have sufficient interest in the matter of this

application within the meaning of Part 56.2 of the Civil Procedure Rules 2002.

7. That the First Defendant is the Honourable Orrett Bruce Golding and is the

Prime Minister of Jamaica appointed by the Governor General. That to the

best of my knowledge his address for the purposes of these proceedings is

Jamaica House, 1 Devon Road, Kingston 5 in the parish of Kingston.

8. That the Second Defendant, the Attorney General of Jamaica, is joined in this

action by virtue of the Crown Proceedings Act and whose address for the
 purposes of these proceedings is NCB Towers, North Tower, 2 Oxford Road,

Kingston 5 in the parish of Saint Andrew.

9. That the facts on which this application lies are as follows:

(1) That on November 19, 2007 I received a letter from the

First Defendant indicating his intention to recommend to

the Governor General, the removal of the members of the

Public Service Commission (hereinafter called “the PSC”).

Said letter purported to satisfy the requirements of section

32.5 of the Constitution with respect to consultation with

me in my capacity as Leader of the Opposition. That I

attach hereto marked “PSM1” a copy of the letter of the

said 1st Defendant to me dated November 16, 2007

(2) That the PSC is set up under and by virtue of Section 124.1

of the Constitution of Jamaica. That Section 124.5 states

how and under what circumstances the office of a member

of the public service can become vacant and is as follows:

(a) At the expiration of five years from the date of his appointment or such

earlier time as may be specified in the instrument by which he was

appointment;

(b) If he resigns his office;

(c) If he is appointed to any public office other than the office of member
of the Judicial Service Commission or member of the Police Service

Commission; or
 (d) If the Governor-General, acting on the recommendation of the Prime

Minister after consultation with the Leader of the Opposition, directs

that he shall be removed from office for inability to discharge the

functions thereof (whether arising from infirmity of body or mind or

any other cause or for misbehaviour.

10. That in his letter November 16, 2007 to me the First Defendant stated that he

proposed to recommend to His Excellency the Governor General, pursuant to

Section 124 (5)(d), of the Constitution the removal of members of the PSC

from office for reasons of misbehaviour.

11. That the circumstances giving rise to this proposed recommendation by the

First Defendant arises from the recommendation of the PSC to the Governor

General for the appointment of Professor Stephen Vascianne as Solicitor

General.

12. That the First Defendant’s letter gave the following reasons for proposing the

recommendation to the Governor General:

(a) In the action brought by Mr. Lackston Robinson a former Deputy

Solicitor General (acting) against the Public Service Commission the

Supreme Court found against the Public Service Commission

“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 unlawful, null and avoid.”

(b) That the recommendation of the Public Service Commission for the

appointment of a Solicitor General is procedurally flawed and open to

challenge on the grounds of bias and conflict of interest and the

following was given ostensibly as the particulars,

- In the case referred to above, Mr. Douglas

Leys, one of the applicants for the post of

Solicitor General, had issued an affidavit

in support of Mr. Robinson’s claim in

which he was harshly critical of the

conduct and decisions of the former

Solicitor General, Mr. Michael Hylton, and

the Commission. Yet the Commission, in

its assessment of the applicants for the

post, relied in part on the evaluation

provided by Mr. Hylton, although it was

well aware of the less than harmonious

relationship that has existed between Mr.

Hylton and Mr. Leys.

- One member of the Commission who

participated in the interview process

failed to recuse herself knowing the

relationship between Mr. Hylton and Mr.

 Leys, which, I contend, she should have

done, given the fact that she is the mother

of Mr. Hylton’s child. The other members

of the Commission, being aware of this,

appear not to have considered it to be of

any relevance.

- In interviewing the applicants on 2nd

October 2007, the Commission established

an interviewing panel which included two

persons who are not members of the

Commission. These persons participated

in the interviews and their scores were

included in the overall score on which the

Commission has based its

recommendation. These persons were

ostensibly performing the functions of

members of the Commission without

holding membership of the Commission.

It is unfortunate that the Cabinet Secretary

was one of these participants – a clear

breach of the intention, if not the letter of

Section 124 (3) of the Constitution which

 bars holders of public office from serving

as members of the Commission. Surely,

the members of the Commission must

have known that this procedure was

wrong”.

13. That by letter dated November 23, 2007 I replied to the Prime Minister stating

inter alia “I am in total disagreement with your proposed recommendation to

the Governor General. The reasons you have put forward cannot possibly

excuse action which would amount to a subversion of both the spirit and the

letter of the Constitution”. I attach hereto and mark “PSM2” a copy of my

letter of November 23, 2007 to the First Defendant

14. That my said letter of November 23, 2007 sets out my reasons for my

disagreement with the proposed recommendation of the First Defendant to

His Excellency the Governor General.

15. That despite my said letter to him the First Defendant, to which I expected to

receive a reply to the issues raised by me or at all, has proceeded to

recommend to His Excellency the Governor General that the members of the

PSC be removed from office for reasons of misbehaviour. That I attach hereto

marked “PSM3” a copy of a letter from His Excellency The Governor General

dated November 29, 2007 to this effect.

16. That the proposed recommendations by the First Defendant based on the

alleged misbehaviour on the part of the members of the PSC - and whose
 integrity, character and reputation are being impugned by such allegations -

were, I am informed by the said PSC and verily believe, made without a

hearing to determine whether there is any substance to them and displays on

the First Defendant’s part, “a cavalier attitude to justice and due process”

and has breached the rights of the members of the PSC “to procedural

fairness and natural justice”.

17. That the actions of the First Defendant breached the rights of the members of

the PSC to a fair hearing and thereby to their entitlement to the protection of

natural justice before adverse steps are taken against them.

18. That further the Government, through the Attorney General in the Senate on

Friday November 30, 2007, was critical of advice given by Professor Stephen

Vascianne to the former Attorney General lending credence to the view that

the First Defendant and his Cabinet’s sole purpose in making the proposed

recommendation to His Excellency the Governor General for the removal of

the members of the PSC was to thwart the recommendation of said PSC to

His Excellency the Governor General for the appointment of Professor

Stephen Vascianne as the Solicitor General.

19. That it is clear from the Constitution that the appointment and tenure of

office of public servants is safeguarded and intentionally kept separate from

the Executive. That the First Defendant, being a member of the Executive

Arm of Government, has clearly and contrary to the Constitution, interfered,

intervened and usurped the PSC’s decision making process and its eventual
 recommendation in respect of the post of Solicitor General as it relates to

Professor Stephen Vascianne.

20. That I am informed and do verily believe that the First Defendant summoned

members of the PSC to a meeting and therein informed them of his

dissatisfaction that Professor Vascianne was their choice to be appointed to

the vacant post of Solicitor General.

21. That I humbly pray for the following Orders:-

(1) An Order of Certiorari quashing the recommendation of

the First Defendant to His Excellency the Governor

General that the members of the Public Service

Commission be removed from office for reasons of

misbehaviour.

(2) A Declaration that the 1st Defendant acted

unconstitutionally, unlawfully and/or contrary to the

principles of natural justice when he recommended to

the Governor General that the members of the Public

Service Commission be removed from the office for

misbehaviour.

(3) An injunction restraining the First Defendant from

recommending to the Governor General that the members

of the Public Service Commission be removed from office

 for misbehaviour until the members of the Public Service

Commission are afforded a fair hearing by an independent

and impartial Tribunal into the allegations of

misbehaviour.

(4) Such further and/or other relief as this Honourable Court

deems just.

22. That the grounds on which I make this application are inter alia as follows:-

(a) The First Defendant has breached the rules of natural justice in

relation to all the members of the Public Service Commission and has

breached his duty to act fairly to the said members of the Public

Service Commission. The members of the Public Service Commission

have been denied the right to a fair hearing to determine whether

there is any misbehaviour on their part

(b) The First Defendant has been guilty of procedural unfairness in that

he has failed to give prior notice of his finding of misbehaviour to the

members of the PSC, and he has failed to give them an opportunity to

be heard before coming to his “finding” of misbehaviour.

(c) The First Defendant is guilty of the unreasonable exercise of power in

that for the reasons already set out herein he has acted in bad faith

and/or has acted unconstitutionally by interfering with the Public

Service Commission in respect of its exercise of powers in relation to

 the recommendation of Professor Stephen Vascianne to the post of

Solicitor General.

(d) The First Defendant has denied the members of the Public Service

Commission their legitimate expectation to a fair hearing by an

independent and impartial tribunal into the allegations of

misbehaviour against them.

23. That the facts contained herein as far as they are within my personal

knowledge are true and so far as they are not within my own personal

knowledge are true to the best of my information and belief.

Sworn to by the said :

HONOURABLE PORTIA
SIMPSON MILLER : …………………………………
This day of : HON.PORTIA SIMPSON
MILLER
At :

Before me:

……………………………………………….
JUSTICE OF THE PEACE

FILED by LINTON WALTERS & COMPANY of No. 2 Duke Street, Kingston,

Attorney-at-Law for and on behalf of the Claimant herein and whose address for
service is that of her said attorneys-at-law.