Pressure mounts over DPP

A constitutional claim could be filed as early as this week ahead of the enactment of recent controversial legislative amendments to increase the age of retirement for holders of the offices of director of public prosecutions and auditor general from 60 to 65.

At the centre of the debate is the post of the present DPP, Paula Llewellyn, who was given a three-year extension in 2020 that will end in September when she turns 63.

That extension was in February challenged by double-murder convict Mervin Cameron, who filed a suit questioning the legality of the DPP’s extension and contending that she has been acting in the post illegally for the past three years.

A ruling into that matter is to be handed down today by a Full Court panel of judges, comprised of Justices Lorna Shelly-Williams, Simone Wolfe-Reece and Andrea Pettigrew-Collins, who heard submissions in the Supreme Court earlier this month.

While there is yet to be an outcome in that matter, the legislative amendment to the retirement age would immediately provide Llewellyn with the benefit of an additional two-year extension to her time in office.

Former Solicitor General Michael Hylton, of the law firm Hylton Powell and who is one of the leading legal experts in the island, wrote to Governor General Sir Patrick Allen and Attorney General Dr Derrick McKoy on Friday, outlining that if the bill was passed as it was, he had instructions to mount the constitutional claim in court. A day later the Jamaican Bar Association (JAMBAR), joined legal experts, and the People’s National Party in contending that the amendment was not done in accordance with the Constitution as it was rushed through the House of Representatives and Senate with no prior consultation with the Opposition last week.

In a statement Saturday, JAMBAR urged the Government to not apply the amendments to the incumbent DPP, “in the light of the gravity of the issues that arise and the fact that they all point to an approach that is inimical to sound constitutional practice”.

In the statement, above the name of JAMBAR President John Bassie, the association said that if it were to accede to the association’s request, the Government “would have taken a step toward dispelling the notion that this general amendment was truly intended to extend the time for the incumbent to continue in office. This will no doubt allay at least one, but a hugely important, concern that has arisen as a result of these unfortunate developments”.

JAMBAR added, “Should the Government reject this eminently reasonable request, it risks widespread public distrust of both offices of the DPP and AuG. That is a risk no responsible Government should seek to assume.

“Extensions such as that obviously being contemplated, and the creation of avenues to freely implement them without any credible rationale and lawful process, weaken the authority and independence of these offices as intended by the framers of the Constitution. It is critical, for good governance and the transparency that is so central to Jamaica’s democracy, that these two offices are seen to be independent and uninfluenced by political or other factors.”

Questioned yesterday as to when the claim would be filed in the Supreme Court, Hylton said that “it is possible it will be this week”.

Hylton said in the letter that his firm was acting for “the leaders of opposition business in the House of Representatives and in the Senate, Mr Phillip Paulwell, MP, and Senator Bunting, respectively”.

The letter had sought a halt to the bill, which was debated on Friday and states further that once the claim is filed, the proposed amendment in relation to the DPP should not come into operation until the issue has been determined by the court.

“There are serious issues surrounding the provisions of the bill which seek to extend the retirement age for the director of public prosecutions. In fact, it is our view, and we have so advised our clients, that if the legislation is enacted in the present terms, it would breach the provisions of the Constitution in various respects, including because it would be an attempt to circumvent the constitutionally prescribed procedure for the extension of the tenure of the sitting director of public prosecutions, and worse, the exercise of a constitutional power for an improper purpose. We have instructions to file a constitutional claim if the bill is enacted in the present terms,” the letter stated.

“If the legislation is brought into force and implemented pending the determination of that claim, there would likely be considerable uncertainty within the Office of the Director of Public Prosecutions in the period during which the intended amendment would be in force. In particular, officers who would have been anticipating promotion will potentially face up to seven more years of the incumbent remaining in office but with no certainty as to the outcome. This may be expected to result in heightened instability and attrition from what is a critical part of the criminal justice system. Given the significant systemic importance of the Office of the Director of Public Prosecutions, you would agree that this would be very undesirable,” Hylton outlined.

In the circumstances, Hylton’s clients have made a special call inviting the governor general and the Government “ to undertake to not assent to or bring into operation the proposed constitutional amendment with respect to the director of public prosecutions until the determination of the impending litigation”.

“There is precedent for such an undertaking to be given in these circumstances. The Government did so pending the constitutional challenges to the legislation seeking to replace the Privy Council with the Caribbean Court of Justice. We enclose for your reference a copy of the Privy Council’s decision in Independent Jamaica Council for Human Rights (1998) Ltd and others Marshall-Burnett and others (2005) 2AC and direct your attention to Paragraph 2 of the decision delivered by Lord Bingham of Cornhill,” the letter stated.

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