Golding (left) and Simpson Miller

Martin Henry, Contributor

Yes, let's take the matter to court. Portia Simpson Miller, in her capacity as Leader of the Opposition, filed an application in the Supreme Court last week seeking an injunction to restrain Prime Minister Bruce Golding from recommending to the Governor-General that the members of the Public Service Commission (PSC) be removed from office for misbehaviour.

Mrs. Simpson Miller wanted the injunction to remain in force until the members of the PSC were given a fair hearing by an independent and impartial tribunal into the prime ministerial claim of misbehaviour. The Opposition Leader is contending that the principles of natural justice were breached by the Prime Minister in his denial to give the PSC members a fair hearing before making the recommendation to remove them from office.

The 'dismissed' members of the commission have also served notice of intention to challenge in court the action of the Prime Minister.

Legal as well as informed and uniformed public opinion, is divided down the middle as to who has been misbehaving. It is hard to think of another constitutional issue which has had more public play than the impasse over the recommendation of Professor Stephen Vasciannie as Solicitor General by the PSC and the rejection of that recommendation and of the PSC itself by the executive arm of Government.

A judicial resolution of the matter would provide an important precedence case for the interpretation of the Constitution. A fundamental function of the Supreme Court is to settle constitutional disputes and in so doing, provide a living interpretation of a 'dead' Constitution.

This function has been little called upon in the years of Independence, very much unlike the situation in the United States, whose Supreme Court is kept busy providing interpretative rulings on their 218-year old Constitution established in 1789.

A fundamental function of the Constitution is the balancing of power among the various branches of Government and the limiting of the exercise of power to prevent the abuse of the rights and freedoms of citizens by the State itself.

Set of 'branches'

Government, in the widest sense, is an intricately coordinated and balanced set of 'branches' with defined responsibilities and powers, and which should not trespass upon the prerogatives of the others. The key branches of the system are: The Governor-General, the executive, the legislature divided into 'Government' side and Opposition side, the judicature, and the civil service.

The decisions and actions of the other branches can be reviewed by the judicature branch for adherence to the provisions of the Constitution through legal actions brought before it.

The structure and function of each branch of Government are spelled out in considerable detail, making up the bulk of the Jamaican Constitution. Controversies over meaning, especially as we get further and further away from the founding and the benefit of living memory, must be judicially resolved. And the body of rulings will constitute an invaluable legal trail back to the Constitution.

The present impasse involves the Governor-General, the Prime Minister/executive/government side of the legislature, and the civil service. The Leader of the Opposition is well within her constitutional role and is doing the nation, the rights and freedoms of whose citizens may be at some risk, a significant service in calling for a judicial settlement of the impasse.

There are several constitutional legal issues at stake from the impasse between the PSC and Prime Minister. "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 after consultation with the Leader of the Opposition, directs that he shall be removed from office for inability to discharge the functions thereof, for misbehaviour."

Case of misbehaviour

But 'misbehaviour' is left open. The Prime Minister has sought to establish a case of misbehaviour which fairly and properly should be tested in law. Hence, the importance of the legal action taken by the leader of that branch of the Government called the Opposition.

Other matters of legal concern are the status of the Solicitor General - a member of an 'independent' Civil Service - with respect to the executive of Government and its political appointee, the Attorney-General, a matter of considerable public debate over the weeks of the impasse.

I have long wanted to see the judicature arm of Government assume a more dynamic role in constitutional interpretation and in restraining any abuse of power and trespassing upon rights and freedoms. The system requires, however, that cases be brought by litigants. The Leader of the Opposition - whatever her political reasons might be - has performed an important service to the nation in placing the action of the Prime Minister for the dismissal of members of the PSC before the Supreme Court.

I have no stake in any particular outcome. It is the action itself which matters supremely.

Judicial review

The Prime Minister has since moved to pre-empt a judicial review of his action in dismissing the PSC. That may well be sheer political genius and within his rights. But, does it not beg the question, what does he have to hide - especially in light of the appeals to natural justice which both he and the Leader of the Opposition have made in declaring their respective positions on the issue and the speed with which the court was prepared to rule on the matter?

Only a few hours separated the rushed completion of the dismissal process and the scheduled court hearing. The Prime Minister's indecent haste raises a constitutional red flag on the ever-burning issue of the restraint of the exercise of power by branches and officers of the Government.

The court has granted leave to apply for a judicial review of the Prime Minister's decision, signalling a judicial assessment that the matter is worth pursuing in the national and constitutional interest.