1AFFIDAVIT OF DAISY COKE

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO.

IN THE MATTER OF THE CONSTITUTION OF JAMAICA

BETWEEN DAISY
COKE

1ST
CLAIMANT

AND MICHAEL FENNELL 2ND CLAIMANT

AND EDWIN JONES 3RD CLAIMANT

AND PAULINE FINDLAY 4TH CLAIMANT

AND
ORRETT
BRUCE GOLDING

1ST
DEFENDANT

AND
ATTORNEY
GENERAL OF
JAMAICA
2ND
DEFENDANT

I, DAISY COKE, being duly sworn make oath and say as follows:-
1. I reside at 13 Glenalmond Drive, Kingston 8 in the parish of St Andrew and I am a

consulting actuary qualified to practice from May 1970 and have been in private practice

from and since June 1972. I was first appointed a Public Service Commissioner on the

23rd December 1989, and have served as Chairman of the Commission continuously since

that date, having been reappointed to serve a number of three year terms.

I am a member of the Order of Jamaica, having been invested with this National Honour

for distinguished work as an actuary and for public service in the year 2002. I attach

herewith marked “A” a detailed outline of my qualifications and record of public and

other service.

2. By letter dated 28th June 2007 addressed to me in my capacity as Chairman of the Public

Service Commission (“the PSC”), the Hon. B. St. Michael Hylton tendered his

resignation as Solicitor General and from the public service which resignation was to take

effect 31st October 2007. Exhibited hereto marked “DC1" for identification is a copy of

the letter of resignation.

3. It is the usual practice of the PSC, upon receiving the resignation of a Head of

Department or other senior public servant, occupying a strategic position in the service,

or in anticipation of the imminent retirement of such a person, to invite that person to

meet with the PSC to discuss the organization of the relevant department, and to garner

the views of the incumbent regarding the key personnel within the department who might

possess the requisite aptitude and skills to assume his or her post. For example, the views
 of the Dr. Kenneth Rattray Q.C. were solicited by the PSC in its recruitment exercise

leading to the appointment of the Hon. Michael Hylton in 2001 as Solicitor General and

more recently Mr. Adrian Strachan, the Auditor General whose retirement is imminent -

was invited to meet with the PSC at its monthly meeting on the 20th September 2007, to

discuss the succession plans for his department.

4. Accordingly, the Hon. Michael Hylton was invited to the PSC’s meeting of the 19th July

2007, at which an in depth discussion took place between himself and the

Commissioners, during which he outlined the organization of the Attorney General’s

chambers, the role and function of each department within the chambers, the role of the

Solicitor General and the key skills required for the management of the administrative

and professional work of the chambers.

5. Further, at that meeting, the Solicitor General, at the request of the PSC, gave us the

benefit of his views regarding the strengths and weaknesses of each of the four Deputy

Solicitors General (three of whom were then serving and one who was on secondment to

the Caribbean Development Bank) against the background that the Commissioners

understood all of the deputies to be capable of assuming the duties of Solicitor General.

The following are some of the comments made to us by the incumbent:

Of Dr. Stephen Vasciannie - “ a teacher by inclination, administrative skills good, but not

outstanding. His stature would be an asset.”

Of Patrick Foster - “a very good court lawyer, good people person. Administrative and

paper management skills weak. Very strong in the training of juniors. Not strong in
 decision making in respect of administrative matters.”

Of Douglas Leys - “Has good all round ability, sound and all-round knowledge of the

public service. In all other areas would be weaker than the other two possible candidates.

People management skills weak.”

The incumbent further advised us that Miss Nicole Lambert, the fourth Deputy Solicitor

General, had indicated to him that she was not interested in applying for the post.

6. Applications for the post of Solicitor General were invited from the general public by

way of an advertisement in the print media which appeared in The Sunday Gleaner of

August 5, 2007, with an application deadline of 23 rd August 2007. I exhibit hereto marked

“DC2" for identification a copy of the advertisement.

7. Three applications were received by the Office of the Services Commissions from Dr.

Stephen Vasciannie, Messrs. Patrick Foster and Douglas Leys in response to the

advertisement abovementioned.

8. On Wednesday, 26th September 2007, the members of the PSC, with the exception of

Hon. Michael Fennell (who was away from the Island) paid a courtesy call upon the Hon.

Prime Minister for the purpose of formally introducing ourselves to him and of apprising

him generally of the current status of the work of the PSC: upcoming retirements and / or

contract expiry of a number of Permanent Secretaries, Heads of Departments and

Executive Agencies; upcoming vacancies that were advertised/or to be advertised as well

as progress on the Public Service Reform which is ongoing. The PSC at that meeting
 advised the Prime Minister of the imminent departure from office of the current Solicitor

General, and of the arrangements made to interview the applicants for the post in the

upcoming week. The PSC prepared an aide memoire for that meeting a copy of which

was left with the Prime Minister, and which is now exhibited hereto marked “DC3" for

identification. This meeting was extremely cordial with the Prime Minister expressing his

confidence in the members of the PSC and his satisfaction with the work being

undertaken by same. He even asked us to help to organise training for new members of

the Cabinet on the respective roles of the Executive and the Civil Service.

9. The Office of the Services Commissions arranged for interviews for the post of Solicitor

General to be conducted on the 2nd October 2007, and appointed an interviewing panel

comprising Commissioners Daisy Coke, Michael Fennell, Pauline Findlay, as well as the

Cabinet Secretary Hon. Carlton Davis and John Leiba, President of the Jamaican Bar

Association.

10. The interviewing panel was constructed to include persons outside of the membership of

the PSC in keeping with the PSC’s usual practice when recruiting senior level public

servants. The PSC has always sought to avail itself of the knowledge, views and

experience of persons who might add value to its deliberations, and this approach has

been used on numerous occasions. Hence, the Cabinet Secretary whose breadth of

experience of the public service has always been of great assistance to the PSC, was

requested to participate on that interview panel in his capacity as Cabinet Secretary, head

of the Civil Service, and Chairman of the Permanent Secretaries’ Board. So too as was
 John Leiba, President of the Jamaican Bar Association, whom the PSC felt would bring to

its deliberations the views of the private Bar. This practice is sanctioned in the Public

Service Regulations.

11. The interviews of the three applicants named at paragraph 7 above were scored by all

five members of the interviewing panel who also gave their written comments on the

candidates at the relevant section of the Interview Score Sheet.

The candidates were ranked by all five panelists in the same order, namely:

First Dr. Stephen Vasciannie;

SecondPatrick Foster; and

Third Douglas Leys.

The completed Score Sheets were handed over by the interviewing panel to the Chief

Personnel Officer Mrs. Jacqueline Hinkson for submission to the PSC which was to

consider the matter with a view to making a decision as to the appointment. The members

of the PSC were sent a round robin e-mail in which the Chief Personnel Officer

summarised the results of the interviews and asked each Commissioner to signify in

writing his or her agreement/disagreement with the results and his/her comments, if any.

All five Commissioners wrote to confirm their agreement that Dr. Vasciannie should be

recommended for the appointment.

12. At its meeting of the 18th October 2007, at which all the Commissioners were present, the

PSC considered the matter and the decision to recommend Dr. Vasciannie for

appointment to the post of Solicitor General was ratified. The PSC gave consideration to
 among other things, the recommendation of the interviewing panel and the views of the

outgoing Solicitor General in respect of each candidate, and unanimously decided to

recommend to His Excellency the Governor General the appointment of Dr. Stephen

Vasciannie to be Solicitor General of Jamaica.

13. Some time shortly after the interviews of the candidates but before the meeting of the

PSC on the 18th, I received a telephone call from the Hon. Dorothy Lightbourne, Minister

of Justice and Attorney General who indicated to me that she had learnt of the

recommendation of Dr. Stephen Vasciannie to the post of Solicitor General and that she

had no intention of working with him in that post. She said that she was prepared to work

only with Mr. Douglas Leys as Solicitor General as in her opinion of the three candidates

he possessed the best litigation skills. She stated that in her view litigation skills were

critical to the role and function of the office of the Solicitor General. She further opined

that if Dr. Stephen Vasciannie were selected the Chambers would be “limping”.

14. I explained to the Attorney General the role and function of the PSC as the body charged

with the responsibility in this matter, the selection process, and the matters to which the

PSC gave consideration in making its recommendation including the recommendations of

the interviewing panel and the incumbent, the impact of a leader with appropriate

management skills on staff morale and continuity. I sought to reassure the Attorney

General that the PSC had specifically asked the incumbent about the relevant importance

of litigation skills, and he advised the PSC that a range of legal skills was required for the

role and function of the Solicitor General, of which advocacy skill was not the most
 important. He further advised that although Dr. Stephen Vasciannie’s advocacy skill was

not his strongest point, his legal prowess in other critical areas required for the post of

Solicitor General was unmatched by the other Deputies. I told the Attorney General that

the incumbent further advised us that the Chambers had a strong litigation department

which would be available to support the Solicitor General.

15. At the PSC’s meeting of the 18th October 2007, I advised the other members of the PSC

of the objection of the Hon. Attorney General to the candidate selected. The PSC

reviewed the matter, and gave consideration to the Attorney General’s position, but

decided that it was unable to change its recommendation even after taking account of the

issue she mentioned. The PSC asked me to meet with the Hon. Attorney General to give

her details of the principles which guided the selection process and why the PSC had

decided to recommend Dr. Stephen Vasciannie and the reasons we had concluded that

even after review, we could not change our original position that of the three applicants

he most of all possessed the academic and professional qualifications, managerial skills

and legal experience needed to lead and inspire the team in the Chambers for the good of

the internal and external stakeholders.

16. I accordingly spoke with the Hon. Attorney General on the telephone and met with her at

her Chambers on the 24th October 2007. There was no meeting of minds at that meeting

as the Hon. Attorney General remained resolute in her objection to the recommendation

of the PSC and in her conclusion that she would not work with any other of the candidate

but Douglas Leys. Our discussion on this matter ended with her telling me that she would
 have to report the difference between our positions to the Prime Minister and I replied

that the PSC would have to report to the Governor General.

17. On Monday the 29th October 2007 I wrote to the Hon. Prime Minister, on behalf of the

PSC, advising him of the PSC’s recommendation and the Attorney General’s position.

This was copied to the Attorney General. I exhibit hereto marked “DC4" a copy of the

letter. The recommendation of the PSC for the post of Solicitor General was forwarded to

the Governor General on the 30th October 2007.

18. On the morning of Wednesday, 31st October 2007, the PSC was requested to meet as a

matter of urgency with the Hon. Prime Minister and all members duly attended his office

at noon on that day. In attendance too were the Cabinet Secretary, the Permanent

Secretary of the Office of the Prime Minister and the Chief Personnel Officer. The Prime

Minister at that meeting expressed to the Commissioners his extreme disapproval of our

recommendation to the Governor General of the appointment of Dr. Stephen Vasciannie

to the post of Solicitor General. He told us that the Hon. Attorney General had stated to

him her refusal to work with Dr. Vasciannie, and he chided the PSC for not alerting him

to the deadlock between the PSC and the Hon. Attorney General in advance of sending

our recommendation to the Governor General and for causing him to have a

constitutional crisis on his hands.

19. At that meeting, the Hon. Prime Minister expressly advised the Commissioners that he

had no difficulty personally with the recommendation of Dr. Vasciannie, that Dr.
 Vasciannie had co-founded the National Democratic Movement (NDM) with him and had

expressed harsh criticism of him some years before when he returned to the Jamaica

Labour Party (JLP), but that Dr. Vasciannie “had said nothing worse about him than some

of his own Cabinet Ministers.” The Hon. Prime Minister further expressed himself to be

in a difficult situation with his Attorney General and said that had he been advised earlier

of the impasse, he would have been in a better position to counsel his Attorney General

with a view to brokering an agreement.

20. The Commissioners then encouraged the Hon. Prime Minister to give consideration to the

position that it was not too late at that juncture to counsel his Attorney General, and

sought to fully ventilate with the Hon. Prime Minister the reasons that the PSC felt itself

unable to withdraw its recommendation and to make a different recommendation in

keeping with the stated wishes of the Hon. Attorney General.

21. The Hon. Prime Minister then raised a number of issues with the Commissioners

including the nominee’s lack of advocacy skills, the matter of the ruling against the PSC

in claim No. 81 of 2002 and HCV 0612 of 2003 brought by Lackston Robinson against

the Commissioners, charging that it could be said that the PSC was biased against

Douglas Leys, due to his support of the applicant Lackston Robinson in that suit against

the Commissioners.

22. The Commissioners sought to address each concern, that is, the PSC’s research into the

relative importance of advocacy skills to the post of Solicitor General, the structure of the
 Chambers and how the staff worked together and the PSC’s position in respect of the

Lackston Robinson suit, but were met by escalating rage on the Hon. Prime Minister’s

part which culminated in his declaring that the PSC appeared to wish to “shove Dr.

Vasciannie down his throat and to mash up the Government”, that in his view each

Commissioner had acted irresponsibly because we all knew that he could not fire us. The

meeting ended at 1:20 p.m. with the matter being unresolved.

23. The Commissioners at that juncture agreed to meet on another day to discuss the matter,

and the utterances of the Hon. Prime Minister. We consulted by telephone and e-mail and

decided to ask his Excellency the Governor General to hold the making of the

appointment of Dr. Vacciannie, and to recommend the acting appointment of the fourth

Deputy Solicitor General, who was not an applicant for the post, and thus ensure that the

senior post was not vacant and give us some time to allow the necessary healing and

reconsideration of the issues. This plan I communicated to the Prime Minister by

telephone on Friday 2nd November, 2007. He replied that he would consider this proposal

and get back to me. This he did on the afternoon of Monday 5 th November when he

indicated that he would prefer if Patrick Foster were put to act. I confirmed that I would

so advise my colleague Commissioners and have the Chief Personnel Officer send that

recommendation to the Governor General. This was to my knowledge effected the next

day and Patrick Foster has been the acting Solicitor General.

24. At its meeting of the 15th November 2007, the PSC further discussed the objections raised

by the Hon. Prime Minister and the Hon. Attorney General to the candidate
 recommended by the PSC, reviewed carefully the entire process leading to its decision

and unanimously decided that its recommendation would not be altered but that we

would seek audience with the Governor General on the matter.

25. The PSC then met with His Excellency the Governor General on the 16 th November 2007

to apprise him of the position of the PSC. We advised him that the PSC would seek

audience, through myself as Chairman, with the Hon. Prime Minister to make another

effort to peacefully resolve this matter, and that the PSC would return to the Governor

General the file with the recommendation for the appointment of Dr. Stephen Vasciannie.

The file would be returned one week from that day as the PSC was advised that the Prime

Minister would be leaving the Island, and did not wish to return the file during his

absence from the Island.

26. On the afternoon of the 16th November 2007, I was advised that the Hon. Prime Minister

was working late at Vale Royal that day and that in response to my telephone request

through his Personal Assistant he would see me if I called on him there. I went to Vale

Royal after 6:00 p.m. and the Prime Minister met with me. At that meeting I mentioned

that the PSC had considered the matter the previous day and had that morning also met

with the Governor General. He replied that he had spoken to the Governor General prior

to our morning meeting at Kings House. In answer to my question as to whether the

period of healing (during which an acting Solicitor General was in place) had been in any

way effective, he advised me that the PSC by maintaining its position had left him no

option but to act to avert a crisis. He stated that he had that day issued a letter “to
 terminate the PSC en bloc”. I responded by assuring him that in the circumstances all that

was left for me to do was to re-affirm that as a body the PSC was in all the particular

circumstances acting in the public interest.

27. Before I withdrew he asked me if I did not think that the PSC’s action was flawed by

having on the panel which made the decision two persons who were not Commissioners,

and who were given equal weight as Commissioners. I replied that the interviewing panel

reported to the PSC which itself unanimously decided to recommend Dr. Vasciannie. He

also asked if I did not think that one Commissioner should have recused herself from the

PSC’s meeting with the incumbent (mentioned at paragraph 4 above) given her

relationship with him. I was so astonished by this statement from the Hon. Prime Minister

which I regarded as entirely improper, that I was unable to utter a response.

28. During the ensuing week the Commissioners heard nothing further from either the Hon.

Prime Minister or the Governor General in respect of the matter. Accordingly, in keeping

with our previous advice to the Governor General we re-submitted our recommendation

for the appointment of Dr. Vasciannie to His Excellency on Monday 26th November 2007

after a special meeting of the full Commission called to discuss the matter again on that

date. This action was unanimously decided. The PSC was satisfied that it had carried out

its constitutional duty and employed due process in identifying Dr. Vacciannie as the

most suitable candidate for the position of Solicitor General.

29. There was no communication to the PSC from His Excellency the Governor General
 from and since 26th November 2007 until the 13th December 2007 when under cover of a

letter dated 12th December 2007, each Commissioner received a proclamation under

broad seal that his/her appointment was revoked, effective 12th December 2007, for

misbehaviour.

30. There has been no communication to us from the Hon. Prime Minister either orally or in

writing concerning the alleged misbehaviour of the Commissioners to warrant our

removal, apart from the questions asked of me by the Hon. Prime Minister on the 16th

November 2007 referred to at paragraph 27 above.

31. The details of the alleged misbehaviour first came to the attention of the Commissioners

when excerpts of the Hon. Prime Minister’s letter of 16th November 2007 written to the

Leader of the Opposition were published in The Gleaner of 13th December 2007. The full

content of the Hon. Prime Minister’s letter dated 16th November 2007 written to the Leader

of the Opposition, the most Honourable Mrs. Portia Simpson Miller, the response of the

Leader of the Opposition to the Prime Minister dated 23rd November 2007 and letter of the

29th November 2007 from His Excellency the Governor General to Mrs. Simpson Miller

came to the attention of the Claimants when a copy of the Affidavit of Portia Simpson Miller

filed in Suit 2007 HCV 5050 was obtained by us from the Supreme Court on Friday 14 th

December 2007. These three letters are now exhibited hereto marked “DC5” for

identification.

32. The claimants have to my knowledge read the letters mentioned at paragraph 31 above.
 The former Solicitor General Hon. Michael Hylton, Q.C. assumed office on the 2 nd

January 2001, after the Hon. Dr. Kenneth Rattray Q.C. demitted office in December

2000. At the time Mr. Hylton assumed office, Mr. Lackston Robinson was acting as

Deputy Solicitor General vice Mr. Patrick Robinson who was on pre-retirement leave.

This acting appointment commenced 1st October 2000.

33.. By letter dated 19th October 2001, Mr. Hylton wrote to the Chief Personnel

Officer to advise that he thought it appropriate for other persons to be allowed an

opportunity to act in the capacity of Deputy Solicitor General before a decision was made

as to whom should be recommended in due course for appointment. He further

recommended that Mr. Hugh Salmon act in that post for six (6) months commencing 1 st

December 2001, and that Mr. Robinson revert to his substantive post as Senior Assistant

Attorney General as of that date.

34. The then acting Chief Personnel Officer consulted with the PSC on the matter, who

agreed that the recommendation of the Solicitor General should be accepted, and Mr.

Robinson was so advised. Mr. Lackston Robinson objected to this proposed course of

action and sued the Claimants and George Phillip (now deceased), then members of the

Public Service Commission, as well as the Attorney General by way of Originating

Summons dated 9th April 2002 claiming among other things that it was the duty of the

Solicitor General to recommend the most senior officer in the department to act as

Deputy Solicitor General and that he was entitled to continue to occupy the post of acting
 Deputy Solicitor General from 1st December 2001, until a proper determination of the

suitability of his appointment to the post be made.

35. The Plaintiff Lackston Robinson was supported in this suit by Douglas Leys, Deputy

Solicitor General who by way of an affidavit sworn on the 10th June 2002 advised the

Court that upon learning of the Solicitor General’s intention to recommend that the

Plaintiff be reverted to his substantive post of Senior Assistant Attorney General he had

advised the Solicitor General that he could not proceed in this manner, that same was a

breach of natural justice, and in particular of the legitimate expectations of the Plaintiff.

36. This Originating Summons (“the 1st Robinson Suit”) was heard between September 2002

and January 24, 2003 when it was dismissed. Mr. Robinson appealed and the Court of

Appeal unanimously dismissed his appeal on November 8, 2006. Mr. Robinson sought

and obtained conditional leave to appeal to the Privy Council.

37. While the 1st Robinson Suit was pending, the Permanent Secretary in the Ministry

of Justice by letter dated the 25th April 2002 directed Mr. Robinson to proceed on

vacation leave with effect 1st May 2002, until further orders, a decision with which the

PSC agreed, as it felt that it would not be in the interest of the Chambers for Mr.

Robinson to remain in office while proceedings instituted by him against the PSC and the

very office of the Attorney General were pending.

38. Mr. Robinson filed another suit in the Supreme Court on the 23rd July 2002 (“the

2nd Robinson Suit”) challenging the Permanent Secretary’s decision that he proceed on

vacation leave.

39. Shortly after the decision of the Supreme Court in January 2003, the then Solicitor

General advised the PSC that it was his very strong view that it would not be in the

interest of the Attorney General’s Department or in the public interest for Mr. Robinson

to return to the Department in any capacity. He made it clear to the PSC that he had grave

concerns about Mr. Robinson’s competence, attitude and cooperativeness and that he was

unable to have trust and confidence in him.

40. The PSC at its regular monthly meeting of February 3, 2003 considered the

request of the Solicitor General and decided to recommend to the Governor General that

steps be taken to retire Mr. Robinson from the Public Service in accordance with

Regulation 24 of the Public Service Regulations 1961.

41. Although the only recommendation of the then Solicitor General at that time was

that Mr. Robinson should not return to the Attorney General’s chambers, the PSC decided

to recommend his retirement. Reassignment to another government department was an

option open to the PSC under the Public Service Regulations, but at that time there was

no senior legal positions available in the public service at the level occupied by Mr.

Robinson. In view of this, and mindful of the concerns expressed by the Solicitor
General, the PSC made its recommendation to the Governor General that Mr. Robinson

be retired.

42. The Governor General accepted the recommendation of the PSC and accordingly

the Chief Personnel Officer wrote to Mr. Robinson on the 6th March 2003 advising him of

the PSC’s recommendation. This letter enclosed a statement stating the grounds upon

which the recommendation was contemplated and the report of the Solicitor General

dated the 19th October 2001, requested by the PSC when Mr. Robinson was to be

reverted. Further, he was invited to submit any representation in response to his proposed

retirement in fourteen (14) days of the date of that letter.

43. Under cover of a letter dated 30th April 2003 Mr. Robinson submitted to the PSC a

document entitled “Limited Response to Allegations.”

44. At the PSC’s meeting of the 15th May 2003, the PSC considered Mr.

Robinson’s response, concluded that he had not shown sufficient cause why he should not

be retired and recommended his retirement to the Governor General on the basis that

same would be in the best interest of the Public Service.

45. By letter dated 19th May 2003 the Governor General’s Secretary informed Mr.

Robinson of the PSC’s advice that he be retired in accordance with Regulation 24 of the

Public Service Regulation 1961 and further advised him that before the Governor General
acts on the advice he may apply for his case to be referred to the Privy Council for its

consideration and a recommendation to the Governor General.

46. Mr. Robinson did not request referral to the Privy Council, and accordingly by

letter dated 19th January 2004, he was advised of his retirement from the Public Service.

47. Mr. Robinson filed another suit against the members of the PSC on the 23rd April

2003 (“the 3rd Robinson Suit”) challenging the PSC’s decision to prematurely retire him.

48. That matter was consolidated with Mr. Robinson’s claim in respect of being sent

on vacation leave by the Permanent Secretary, and both matters were heard together.

49. On July 31, 2007 Mr. Justice Jones ruled in Mr. Robinson’s favour in the 2nd and 3rd

Robinson Suits. In relation to the 3rd Robinson Suit, it is my understanding that the Judge

held that the PSC erred in seeking to prematurely retire Mr. Robinson, as the request of

the Solicitor General was a necessary precondition to such a decision. Justice Jones held

that the PSC was wrong to rely on the Solicitor General’s memorandum of 19th October

2001, which was only a request that Mr. Robinson not return to the department not

necessarily a request that he be retired.

50. It is also my understanding that the Court further ruled that the PSC erred in

making the recommendation to the Governor General before inviting Mr. Robinson to

submit any representations he might wish to make regarding his proposed retirement.
51. The PSC was advised of the outcome of the 3rd Robinson Suit by the attorneys

having conduct of the matter in the Attorney General’s Chambers, who gave detailed

advice to the PSC regarding the judgment of the Court and advised that the judgment

should not be appealed. The PSC carefully reviewed the judgment and the advice of the

Attorney General’s department and unanimously agreed to accept the advice Not to

appeal and to abide by the ruling of the court.

52. The PSC was advised by its attorneys and understood the Court’s order to mean

that Mr. Robinson should be immediately reinstated to the Public Service at no less a

status as at the date of his retirement, and so took immediate action to so reinstate Mr.

Robinson.

53. Mr. Robinson occupied the post of Divisional Director LO5 in the Attorney

General’s Chambers at the time of his retirement in 2003. Another officer had been

appointed to that at post following his retirement and as of September 2007, all of the

LO5 posts in the chambers were occupied.

54. There being no available post at the Attorney General=s Chambers in order to

accommodate Mr. Robinson at the Chambers a “supernumerary post” would have to be

created by the Establishment Division of the Ministry of Finance upon its satisfaction that

same was required due to the needs of the organization. The Chief Personnel Officer

advised the Commission that it was her understanding that there was no such need.
55. I am advised by the Chief Personnel Officer that she met with Mr. Robinson in

early September 2007 and advised him of the abovementioned state of affairs and

discussed with him his assignment to the Tax Administration Department where there

was a need for a legal officer at the LO5 level. Mr. Robinson requested that the proposed

assignment be put to him in writing which was done by letter dated 6th September 2007.

56. The Chief Personnel Officer received a letter dated 13th September 2007 from Mr.

Robinson’s attorneys which indicated that he did not wish to be assigned to the Tax

Administration Department but that in accordance with their interpretation of the order of

the Court he should be reinstated to his substantive post of Divisional Director LO5 in the

Attorney General’s Chambers.

57. In light of the disagreement between the Attorney General’s Chambers and Mr.

Robinson’s attorneys, as to the effect of the judgment, the PSC asked the Chief Personnel

Officer to seek legal advice of the Attorney General’s Chambers whether this aspect of

the ruling could be clarified by the Court.

58. It is my understanding that Mr. Robinson has filed another suit against the former

Commissioners (“the 4th Robinson Suit”) seeking among other things, a declaration that

he is entitled to be reinstated to his “substantive post” in the Attorney General’s

Chambers.
59. Further, it is my understanding that in a press release from the Office of the Prime

Minister, excerpts of which were published in the Daily Observer of the 14th December

2007, the action by the PSC regarding the assignment of Mr. Robinson at the same level

in a department other than the Attorney General’s Chambers has been characterized as

“persistent misconduct and unlawful behaviour” on the part of the PSC, and that “the

Commission has persisted in its vindictiveness by contriving to circumvent and frustrate

the decision of the Court.” I exhibit hereto marked “DC6” for identification a copy of the

abovementioned press release.

60. I refer to the statement in the Prime Minister’s letter dated November 16, 2007

that a member of the PSC should have recused herself “given the fact that she is the

mother of Mr. Hylton’s child”. When the retirement of the Hon.Dr. Kenneth Rattray, Q.C.

in 2000 was pending, Michael Hylton was one of the applicants for the post. In

accordance with the settled procedure followed in these matters by the PSC, interviews of

the various applicants were scheduled. In advance of those interviews, Commissioner

Pauline Findlay advised me that some years before she had had a relationship with Mr.

Hylton and had borne a child for him, and that in the circumstances she wished to recuse

herself. I agreed. Miss Findlay therefore took no part in the selection process which led to

the recommendation and appointment of Mr. Hylton to the post of Solicitor General.

61. When arrangements were being made to interview applicants for the post in 2007,

I did not think that that prior relationship was in any way relevant as Mr. Hylton was not

one of the applicants and as far as I was aware, had no personal interest in the outcome of
the process. There was therefore no need in my view, for Miss Findlay to recuse herself. I

remain of that view. I also note the statement in that letter that Mr. Leys had issued an

affidavit in the 3rd Robinson Suit which was harshly critical of Mr. Hylton’s conduct and

decisions and that the PSC was presumably wrong to place any reliance on Mr. Hylton’s

evaluation of the applicants. To the best of my knowledge and belief, the only affidavit

filed by Mr. Leys which could be characterized as harshly critical of the conduct of the

former Solicitor General was his affidavit sworn on the 10th June 2002, in the 1st

Robinson Suit. The Supreme Court and the Court of Appeal have both ruled in favour of

the PSC and the Attorney General in that matter stating definitively that the then Solicitor

General’s actions in respect of Mr. Robinson’s reversion were perfectly in order.

62. Further, to the best of my knowledge and belief Mr. Leys filed one affidavit in the

3rd Robinson Suit (which related to the PSC’s recommendation that Mr. Robinson be

prematurely retired). That affidavit was sworn on the 20th March 2007, and sets out on a

case by case basis, a number of legal matters handled by Mr. Robinson during Mr. Leys

tenure in the department and Mr. Leys opinion that these matters were competently

handled, and asserting generally his views, which he expressed to be diametrically

opposed to those of the former Solicitor General, that Mr. Robinson was a competent and

hardworking member of the department.

63. I know of no “less than harmonious relationship” existing between the former

Solicitor General and Mr. Douglas Leys. I did not regard Mr. Leys’ contrary views of the

legal position regarding Mr. Robinson’s reversion, however strongly expressed, as

 evidence of a “less than harmonious relationship’ with the former Solicitor General nor

did I so regard his differing opinion as to Mr. Robinson’s level of competence.

64. More importantly, Mr. Hylton was in my view a professional person of integrity

who in the view of the Commission had discharged his duties as Solicitor General with

great distinction during his six year tenure. In those circumstances the Commission felt

certain that he was capable of giving an unbiased view of all the applicants including Mr.

Douglas Leys.

65. I therefore felt that the PSC was fully entitled to treat the views of the incumbent

Solicitor General, as Head of Department, as one of the factors to be considered in

making its recommendation for the post of Solicitor General.

66. In all the circumstances, I deny that I am in any way guilty of misbehaviour as has

been alleged by the Honourable Prime Minister.

SWORN to at )
in the parish of ) ____________________________
this day of 2008 ) DAISY COKE
before me: )

............................................................
JUSTICE OF THE PEACE
for the Parish of:
Filed by DunnCox, Attorneys-at-Law for and on behalf of the Claimants herein whose address
for service is 48 Duke Street, Kingston, telephone: 922-1500, Fax: 922-9002