Editorial | Avoiding crises

What the Government did last night should have happened immediately after Friday’s ruling by the Constitutional Court that last year’s extension of Paula Llewellyn’s tenure as director of public prosecutions (DPP) was unconstitutional.

If Ms Llewellyn herself did not herself resign, or otherwise step aside, she should have been prevailed upon to do so and an interim or acting DPP appointed while the government pursued its appeal. Which is what the Government says it will do today.

By stringing-out the decision to announce that a stand-in DPP will be appointed, and the justice minister and attorney general declaring that the court’s decision did not affect the substance of Ms Llewellyn’s position, they created unnecessary debate and uncertainty, with potential damage to the justice system. Happily, a likely constitutional crisis has been avoided.

Whoever is appointed as the acting DPP will have the immediate task of rebuilding trust in the office, and critically, reviewing everything that was done in Ms Llewellyn name over the past six months – and the laws and constitutional provisions relevant thereto – to determine whether the can survive the Constitutional Court’s ruling.

But there are also other very critical lessons from this matter – which this newspaper has raised in the past and are worthy of repeating – that should not only be taken on board, but deeply internalised by those who hold power.

First, as we observed last July – when the Government, in a single afternoon, tabled, debated and approved the constitutional amendments to increase the retirement age of the DPP and the auditor general – the Constitution is a hallowed document that ought not to be trifled with.

TUNNELLED HASTE

The stealth and tunnelled haste with which the bill was pushed through, robbed the administration of any opportunity for thoughtful reflection, which might have avoided the embarrassment of last Friday’s ruling and the constitutional crisis that could flow therefrom.

Hopefully, this is the last time that this approach is used for an amendment, of whatever kind, to the Constitution. Issues ought to be fully ventilated before enactment.

Second, this development adds even greater urgency to the need for reform to bring transparency and predictability to appointments to certain high offices, for which the holders need not only be competent, but enjoy public trust. The DPP is one of these.

Prior to last year’s constitutional amendment, the DPP, like the auditor general (AuG), was required to retire at age 60. However, the governor general, acting on the advice of the prime minister, who has to consult with the leader of the Opposition, could allow the DPP to stay in office until 65.

In 2020, when Ms Llewellyn was about to turn 60, she requested a five-year extension. That request was vehemently opposed by the Opposition. She was eventually granted an extension of three years.

Last year, five months before the additional period ended, Ms Llewellyn applied for a further extension, but was told that Prime Minister Andrew Holness, having taken legal advice, had declined.

Then, in late July, the Government brought a constitutional amendment to extend the retirement ages of the DPP and the AuG, which it said was in keeping with a broad move to raise the retirement ages of public servants to 65, with the possibility of an extension to 70.

However, in the case of the DPP, the amendment said that the person (Ms Llewellyn) in the post “at the date of commencement of this act may … elect to retire anytime after attaining the age of 60 years”.

WENT TO COURT

The political Opposition went to court on the grounds that the amendment was for an improper purpose; that changing the provision should follow the procedures for amending deeply entrenched clauses; and that the Government did not follow the constitutionally prescribed scheme for extending the tenure of a DPP who had reached the retirement age.

The court – Justices Sonya Wint-Blair, Simone Wolfe-Reece, Tricia Hutchinson-Shelly – held that the amendment to extend the retirement age of the DPP and the AuG was constitutional done, but held that the arrangement by which Ms Llewellyn was allowed to continue in office was unconstitutional.

Essentially, the court held that Ms Llewellyn benefited from a second extension. In the event, given that that arrangement had not changed, a DPP staying on after retirement age was subject to an approval scheme that involved the prime minister, the Opposition leader and the governor general.

The justices said that the DPP electing to stay on, added a procedural step to the retirement process, and – but for Ms Llewellyn’s unique position – was superfluous to increasing the retirement age to 65.

“Parliament has legislated for the retirement of the DPP in a way that lends itself to the interpretation that it has permitted a second extension to the incumbent,” the judges said.

They added: “The court finds that the powers conferred on the governor general, the prime minister and the leader of the Opposition have not been relegated to the election of the DPP, as the act has not usurped their functions.”

This issue brings back the question of insulating public officials in sensitive offices from the presumption or perception of political control, and ensuring the best candidates view for the job.

In the UK, while the DPP is appointed by the attorney general, that is after the job is advertised and the shortlisted candidates are interviewed by a high-powered panel of stakeholders.

In Canada, the attorney general can refer up to 10 candidates for the post of DPP to a broad-committee of ministers, the law federation and recognised political parties. That committee whittles down the list to three, from which the AG makes a choice. The name of the preferred candidate is then approved by the appropriate parliamentary committee before the choice is formalised by the governor general.

There are templates that Jamaica might follow.