Ken Jones, Contributor

Vasciannie

When you sift the verbiage and carefully remove the garbage you will find this fundamental difference between my position and that of my opponents: I believe that the Public Service Commission (PSC) should be an advisory body to the administration. They seem to believe that the PSC should have dictatorial powers and be able to defy the Government and deny its wishes even in such a vital case as the appointment of its main legal adviser.

I do not recall any of these opponents of mine raising a murmur when in April 2002 Prime Minister Patterson signed an order by which the PSC was deprived of the right to hire and fire personnel in the public service. That was part of the reform he thought necessary and it was to end a practice that existed from colonial times. I am unable to say if and when that order was withdrawn. Hence, I will continue the discussion on the basis that the power was restored.

My opponents believe that the Constitution supports their position in this matter; and that regardless of any negative consequence, it should be enforced in accordance with their views. I have stated my opinion that the Constitution is subject to another interpretation. Further, I think that actions, past and current by the present PSC, have contributed to serious contention and disharmony, and that there is sufficient reason for it to demit office and allow for a possible change.

Infirmity of body or mind

Jones

Although hanging on to the words of the Constitution, my opponents refuse to concede the Prime Minister's constitutional right to ask for the resignation or removal of the present PSC. This authority is given in Section 124 (5d), which in essence states: "The office of a member of the Public Service Commission shall become vacant if the Governor-General, acting on the recommendation of the Prime Minister, 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."

Short of a judicial ruling to the contrary, I maintain that the proper interpretation of the Constitution is that members of the PSC should be appointed by the existing Governor-General on the recommendation of the existing Prime Minister. In the present case, neither this Governor-General nor this Prime Minister had anything to do with this PSC's appointment. My reading tells me that the Constitution did not say 'a Prime Minister'; it says 'the Prime Minister' - and this cannot mean former Prime Minister or former Governor-General. Nor could the framers of the Constitution have intended to have the hands of an elected Prime Minister tied for five years by a former P.M.

Regarding misbehaviour, the Supreme Court recently ruled that this PSC grossly overstepped its power and provided 'a striking example of abuse of power' in retiring a senior employee in the solicitor-general's office. It wrongfully and willfully retired this officer and accordingly misled the then Governor-General who trusted the action and put his signature to it. On top of that, even as I write, it refuses to heed judicial indications, including a Privy Council ruling, to reinstate him and repair the breach it caused in his professional career. Is this good behaviour or misbehaviour?

Public officers bared

In considering applications for the important post of solicitor-general, the PSC took no advice from two of its appointed members. Instead it used the judgment of two persons, including a public officer, drawn from outside of the constituted body. For obvious reasons, the Constitution bars public officers from membership of the PSC, which is to adjudicate on important matters related to public officers. This part of the Constitution seemed not to have impressed the PSC's triumvir; so they did as they pleased. Was that misbehaviour?

Among the applicants was a senior officer who had successfully submitted an affidavit against the PSC when it illegally retired his colleague. This applicant who had been a close understudy of the late respected solicitor-general, Hon. Kenneth Rattray, received the lowest marks and was the only candidate described as being unfit for the post. Was this bias? Was conflict of interest involved? Was this misbehaviour? With the lack of transparency we cannot tell for sure.

I hold that it is reasonable to say that, however academically and otherwise qualified the person recommended may be, it makes no sense to foist his services upon an attorney-general and Prime Minister who have clearly indicated that they would have great difficulty working with him. This country cannot afford to waste talent such as Professor Vasciannie's. He is a brilliant Jamaican and I am sure that there are other areas of life, private or public sector, where he can give outstanding service. Great pity it is that this PSC has caused him to be the centre of fruitless and unnecessary controversy.

The question that arises naturally is: Why does the PSC so strongly insist on the acceptance of its choice? Why is it deliberately seeking to frustrate the very administration it is supposed to serve?

Easier understanding

My final statement on the subject is that the Constitution needs to be clarified, not only to allow easier understanding by the people, but also to serve us better. The present controversy emphasises the need for Jamaicans to question the fact that our country is one of the very few in the world where the Prime Minister does not have the right to appoint the solicitor general. When Gordon Brown became Prime Minister of England he exercised that right; and most of the people's government in the Commonwealth, in the United States and in Europe act accordingly. However, mental slavery would suggest that Jamaicans cannot be trusted and should meekly accept, without thought of change, any rule or regulation imposed upon us when we were unaccustomed to self- determination. In my book democracy means nothing if a tiny group seemingly accountable to nobody can hold the elected government to ransom.

Ken Jones is a veteran journalist and general secretary of the Farquharson Institute of Public Affairs.