'My Dear Mukulu'
Martin Henry, Columnist
Out of office Public Defender Ear Witter, QC, has decided not to ride off into the retirement sunset quietly. He has kicked up a whole heap of dust in his letter to the youth who now temporarily heads the office, Matondo Mukulu.
The dust has tarnished Mr Witter's reputation far more than it has done any harm to the rising star Mukulu, who has captured the public imagination and earned a great deal of goodwill in the months that he has run the office since April last year along very different lines from the lumbering Witter era.
I opened up deliberately describing Mr Witter as the "out of office" Public Defender. He signed his letter to Matondo Mukulu as "Public Defender retired" and talks about "my retirement notwithstanding", but the tenor of his missive is that of an officer on leave who still retains authority over the position.
Early in his long diatribe, Mr Witter seeks to justify his action by saying "before going further, I want you to know that in writing to you, I am not the interloper you will no doubt think that I am. I do have something of a leg to stand on. For these contents are warranted, if not indeed validated, by the provisions of S. 5 (2) of the act."
Section 5 (2) of the Public Defender [Interim] Act, and I have gone through the document to be properly informed about the law for this column, says: "Nothing done by the Public Defender shall be invalid by reason only that he has attained the age at which he is required by this section to vacate his office." The law seems clearly to mean that if someone, for any reason, lingers in the office over the mandatory retirement age of 70, then any action he takes as Public Defender would not be invalid simply because he is over 70. But if Mr Witter has retired, he has, in fact, vacated the office, surrendered all authority and has absolutely no jurisdiction over its operations.
Mukulu, in his feisty but much shorter measured response, advised Mr. Witter: "I think if you have an issue with your own misunderstanding of the law, you should perhaps seek advice from a person who is sufficiently competent to advise you".
Mr Witter was writing, he said, to correct two errors which he claimed to have made, errors which seriously call into question his own judgement and competence in office. The sort of thing it would be better to keep very quiet about and hope not to be discovered. He had appointed Mukulu as deputy Public Defender in open-ended fashion without stipulating the three-month probationary period. And in light of his retirement, he had then appointed the deputy Public Defender to act as Public Defender, "subject to the approval of the Commission constituted by the Public Defender (Interim) Act".
Under Section 11 (1) of the act, the Public Defender is authorised to appoint staff: "The Public Defender may appoint and employ for the purposes of this Act, at such remuneration and on such terms and conditions as may be approved by the Commission constituted under subsection (2), such officers and agents as may be considered necessary to assist him in the proper performance of his functions under this Act."
The Public Defender may, by the provision of Section 5 (3) of the act, appoint someone to act for up to two months for reasons of illness, absence or incapacity. For acting longer than that "the Governor General, after consultation with the Prime Minister and the Leader of the Opposition may appoint such person as he thinks fit to perform those functions". It is the prerogative of the Governor General to appoint the Public Defender. "The Public Defender shall be appointed by the Governor General by instrument under the Board Seal after consultation with the Prime Minister and the Leader of the Opposition," [Section 4 (2)].
It does not appear that the law intends that an outgoing Public Defender should appoint his successor (acting) for any period of time even for under two months. The officer packs his bags and go, as is the case in other institutions of the public and private sector, and leave the authorised person to appoint his replacement. This is not a leave of absence. It is vacating the post.
Someone other than Witter has dropped the ball and Witter's assertion in his letter to Mukulu is correct but for the wrong reason, "your appointment to act as Public Defender", Witter wrote, "was ultra vires, null and void, ab initio, it being open-ended and purporting to have been for a period exceeding the two months mandated by ss. (3)". That appointment was never Witter's call as retiring Public Defender. Nor is rescinding the appointment his call at all.
Earl Witter as private citizen has no business and no leg to stand on writing to Mukulu and directing that his letter be affixed to Mukulu's personnel file: "But now, placing all such reliance as I may, upon the provisions of s. 5 (2), I put you formally on notice that you should forthwith cease and desist from operating under the colour, guise or pretence of 'acting' Public Defender. Moreover, promptly, publicly and henceforward, do announce your substantive position to be that of probationary Deputy Public Defender and, confine yourself strictly to the relevant job description. The period commencing at the expiry of the probation envisaged by this appointment is, perforce, a de facto extension of your probation."
The Office of Public Defender, replacing the older ombudsman arrangement, is far too important to play around with. The Public Defender [Interim] Act is called "interim" because it is intended "to continue in force until provision is made in the Constitution of Jamaica for the establishment of a Public Defender". The Public Defender was established as a Commission of Parliament "for the purpose of protecting and enforcing the rights of citizens".
Under the law, "the Public Defender shall investigate any action taken where he is of the opinion that any person or body of persons -
(i) has sustained injustice as a result of any action taken by an authority or an officer or member of such authority, in the exercise of the administrative functions of that authority;
(ii) has suffered, is suffering or is likely to suffer an infringement of his constitutional rights as a result of any action taken by an authority or an officer or member of that authority."
We are now in the process of regularising Mr Witter's replacement as Public Defender. The media has previously announced Arlene Harrison Henry in and Matondo Mukulu out, which may very well be the case, but there has been no official statement. In the face of media speculation, the Office of the Services Commission, which is the secretariat of the Public Service Commission (PSC) in a very professional news release not only outlined the role which was delegated to the PSC by the governor general and the procedures followed in facilitating the selection of the next Public Defender, but has indicated that the governor general had not yet completed the process.
The PSC said that while working, it had been unaware of Mr Witter's letter to Matondo Mukulu copied to His Excellency and the Speaker of the House, who is the Chairman of the Public Defender Commission in the Parliament. The PSC said it only became aware of the letters via the media after its report had been submitted to the governor general.
A firestorm broke out in media over Mr Mukulu's (lack of) age as a factor in the selection process. The PSC says age is not a criterion used to guide its selection decisions as this is discriminatory.
Having appointed Mukulu, whom he had recruited to be his deputy and whose work he had supervised, to act as Public Defender (albeit ultra vires) Mr Witter, splattering his own reputation with more than dust, writes that "it would likely require the most weighty and cogent reasons for investing someone so youthful, with such lack of experience both in law and in life, as are you, with the protection of security of tenure laid down by S.5 (4) of the act, et seq, - not for what would be a whole generation".
The ultra-security of tenure of the Public Defender to age 70 and the elaborate procedure for dislodgement under the law is something worth reviewing. While the office must be protected from interference, Parliament needs a better handle on seeing to its effectiveness. A long-term contract with the possibility of rollover, as is the case for the contractor general heading another Commission of Parliament on a seven-year contract, seems a better way to go.
Witter's dust storm, kicked up from the ranks of private citizens, made for media excitement and damaged nothing but his own reputation. Let's now get down to the serious business of post-Witter rebranding of the Public Defender as an aggressive and effective protector of the rights of citizens.