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PUBLIC AFFAIRS: Face that large green elephant

Published:Sunday | April 18, 2010 | 4:00 AM
Robinson
Solicitor General Douglas Leys.
Samuda ... why is he point man in this issue?
Why vilify Harold Brady?
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Gordon Robinson, Contributor

In Jamaica, our esteemed 'journalists' have an awkward habit of frequently dropping dollies.

Take, for example, the 'hot topic' of the alleged contract between the Government of Jamaica (GOJ) and Manatt, Phelps, Phillips & Co (MPP). The local coverage, preferring, as always, hype and personal attack to substance, has been an affront to logic. If analysis rather than sensation by obfuscation is the objective, we must begin by picking an allegation. The blinkered media have been considering only two menu items. There is a third.

The media are focused on whether or not the GOJ had a contract with MPP. But, we must begin by looking at the undisputed facts through a clear lens. They are:

(1)The solicitor general's (SG's) admissions that:


(a) he was frequently lobbied by Harold Brady to use the services of MPP in the GOJ's treaty problems with the USA - (there is only one that we know);


(b) as a direct result of Brady's lobby, he met with MPP with a view to formally retaining that firm but did not do so;


(c) in that context, he is at least guilty of the most incredible diplomatic naivety, in that he invited MPP to a meeting of state between nations. It matters not who initiated this international faux pas, MPP could not have attended without the SG's express invitation and introduction;


(d) he reported to the attorney general at every step of the way.


(2) MPP's Web postings under United States statute which assert that:


(a) the Government of Jamaica was MPP's client;


(b) MPP was engaged by way of a formal written contract (specifically the famous Brady & Co letter which in fact contains no contract with the GOJ);


(c) it has been paid a part of its retainer;


(d) it has attended meetings with US officials on "treaty matters" pursuant to the engagement; and


(e) the "contract" was terminated as of February 8.


MPP made a specific disclosure, under United States law, to the Department of State and will have to prove that assertion to that office (may already have been made to do so) if it is disputed. It is clear that MPP was labouring under the impression that when Harold Brady signed that notorious letter, a contract was completed with the GOJ, and it then proceeded to produce deliverables and spend time on its tasks. The subsequent actions of the SG, after he was lobbied to retain that firm by Brady, are the actions of an SG who has either contracted informally with MPP, and/or accepted that Brady and MPP's 'arrangement' was good enough for him to act upon and use their services - either or both with the full approval of his attorney general; or is an incorrigible nitwit. Take your pick.

The letter upon which MPP relies for its engagement to the GOJ is dated October 1, 2009, which is less than two months after the 'Dudus' extradition request arrived. Previously, there did not seem to be any 'treaty issues' requiring high-powered US lobbyists. Any court looking at these facts would be highly likely to conclude that the GOJ did in fact avail itself of MPP's services, and that MPP did in fact work on the GOJ's behalf.

Mark you, these days we do not use courts to resolve disputes like this. We prefer to vilify Harold Brady; ask the attorney general to decide, based on the SG's opinion, whether evidence was illegally obtained despite the unavailability of most of the relevant facts; then, under pressure from influential national bodies, instruct the attorney general to ask the court to second-guess the SG and render a free second opinion (not to proceed with the extradition request and have the court resolve any dispute in that regard); then ask the SG to pronounce on Brady's conduct despite the obvious conflict arising from the SG's own involvement.

MPP's services

So, we can conclude, without having to crucify Harold Brady and without having to decide whether or not a 'contract' with the GOJ existed, that the GOJ did use MPP's services. But, without specifics, so what? All over the world, members of governing parties lobby government officials to do things that Cabinet members cannot order them to do. It is up to the officials to resist this lobbying, if inappropriate, which this SG apparently did not do or could not do.

All over the world, influential lobbyists are retained by this politically obfuscatory method all the time. This JLP government will not be the first where the right hand did not know what the left was doing (or, to be more precise, the brain did not know what both hands were doing). One thing cannot be denied: if a political party in government, faced with this kind of political hot potato, decided to retain American lobbyists to try to convince the US government to withdraw the Dudus extradition request, this is exactly how it would be done, and very few in the top echelons of that government would have a clue, for the express purpose of protecting them from the consequences and retaining deniability.

The 'preckeh' comes about when it is so clumsily done that the foreign lobbyist declares publicly that its client is the GOJ, and where the Government's solicitor general, either through active collusion or excessive ineptitude, allows himself to be a contributing factor to this declaration.

So, what has Harold Brady done so far to attract the sort of burning at the stake proposed by the witch-hunters (and huntresses) out there? The letter he signed does not in fact contain any contract with anybody but his firm. The footnote is self-descriptive only (resume puff at its highest): "Consultant to the Government of Jamaica authorised on behalf of the GOJ to approve of the engagement of MPP as set forth in this letter ..." as nothing "set forth in this letter" purports to be a contract on behalf of the GOJ. His initial public statement was simply factual:

The letter did not refer to any specific treaty (fact);

He did not want (an expression of personal desire that cannot be refuted) the letter to be drawn into the current hot topic (fact); and,

Nationwide 'ought not' to do so (fact; based purely on the contents of the letter);

The footnote to the letter was an error which was subsequently "corrected" (begging the unasked follow-up question by the ball-fumbling host, "What specifically was the error? Was it the job description itself or its disclosure the error?").

So, let us stop the pusillanimous, parochial scandal-mongering and face the large green elephant in the room. The real question is: Did the Government intend to use MPP to lobby generally on behalf of the GOJ, or was MPP to be used specifically to lobby the US government to withdraw its extradition request for Dudus? The former would be OK; the latter not so kosher. The GOJ's panic reaction strongly suggests that it is the latter, regardless of who within the Government is aware of the fullness of the engagement.

Ladies and gentlemen of the Jamaican media, this is where you should be focused. Why did the GOJ (through the actions of the SG) use MPP? Was it specifically for Dudus' benefit? If so, who is footing the bill? Are the taxpayers of Jamaica paying, either directly, from the Consolidated Fund, or indirectly, through sham GOJ contracts to the notorious 'contractor'?

Research

In this regard, journalists looking to cop one of the Domino Awards at the end of this year should do some research and realise that discussions between attorneys and clients are privileged but the identity of their client is not; read the provisions of the Access to Information Act carefully; and recall that the document, regarding essential matters of a public nature, was prepared by Brady & Co (a "body or organisation") and not by Harold Brady personally.

Why, in the context of MPP having worked for governments and specifically the Jamaican Government before, is the GOJ anxious for there to be no contractual inference drawn? Why is Karl Samuda the new point man, specifically in his capacity as JLP general secretary? Is the JLP Brady & Co's 'private' client? Why is the SG, who himself interacted directly with MPP, being asked to give opinions on Harold Brady's conduct and to join the finger-pointing brigade? Now, here is nationally beneficial grist for the mill of a formal enquiry.

Government's latest strategy of proposed correspondence to MPP is more political misdirection since Brady never purported to have contracted on behalf of the GOJ and did not in fact do so. Based on the facts (not hyperbole), it is reasonable to conclude that Brady's client made MPP's services available to the GOJ and, through the solicitor general, the GOJ most definitely made use of those services. Any possible governmental abuse is to be inferred from the actions of the SG and, if I am correct in my own view that at least an informal contract exists, it would have been entered into on behalf of the GOJ by the SG (influenced, perhaps, by Brady's lobby) not by Harold Brady.

Writing to MPP to protest Brady's lack of authority months after MPP's involvement was permitted by the Government's own SG only makes this government appear more inept than ever and in danger of becoming an international laughing stock. As has been said, it would be daft.

Readers should know that I first met Harold Brady in 1974 when we both entered the Faculty of Law. We both graduated from the law school in 1979. He is the "friend of a friend who occasionally doubles as one of my instructing attorneys ... " about whom I wrote some weeks ago. I say this because, in Jamaica, whenever truth becomes inconvenient, we enjoy searching for motives and we relish abusing the messenger and ignoring the message. So, rather than putting you to the trouble of scrambling around searching for ammunition to avoid the many truths herein, I prefer handing it to you on a silver platter. Have fun with it.

Peace and love.

Gordon Robinson is an attorney at law. Feedback may be sent to columns@gleanerjm.com.