Executive usurped by extension of DPP’s tenure, Hylton claims in court

The People’s National Party (PNP) says Parliament had usurped the executive arm of the government by passing a bill to extend the tenure of Director of Public Prosecutions (DPP) Paula Llewellyn.

“What has happened in this case is a parliamentary usurpation of the executive’s power. This usurpation is inconsistent with the principle of separation of powers,” King’s Counsel Michael Hylton argued yesterday during his reply to arguments from the defendants.

Hylton leads a team of lawyers comprising Duane Allen, Kevin Powell, and Timera Mason, who are representing the claimants, Member of Parliament Phillip Paulwell and Senator Peter Bunting.

In July, the Constitution was amended to move the retirement ages of the DPP and the auditor general from 60 to 65.

Llewellyn, whose tenure would have ended in September, as a result, was given two extra years to remain in office.

However, the PNP, through two members of its executive, has challenged the amendment via a claim which was heard in the Full Court.

The claimants are contending that the amendments were done for an improper purpose and that the Parliament, in passing the bill, had breached the separation of powers principle and they are seeking a number of declarations, including that Section 2 of the Constitution (Amendment of sections 96(1) and 121(1) Act 2023 was enacted for an improper purpose and is therefore inconsistent with the Constitution, null and void.

Misinterpreted authorities

Hylton, during his reply yesterday, argued that the lawyers for the defendant, the Attorney General, have misinterpreted some of the authorities which they are relying on to dismiss the claimant’s argument about the separation of power principle.

Citing the Eastern Caribbean case of Astaphan vs Comptroller of Customs, King’s Counsel Allan Wood, who is representing the Attorney General, had argued that the delegation of transfer of legislative power by the legislature to the executive is not inconsistent with the principle of separation of power.

However, Hylton countered that the case at hand differs as there is no evidence of Parliament transferring any of its legislative power to the executive.

“Similarly, nothing in the facts of this case suggests that the executive transferred or delegated its power to extend the tenure of the DPP to the Parliament,” he added.

Hylton, however, cautioned that while the court should be careful not to trespass on the functions of the Parliament, it is empowered and has a duty to ensure that Parliament does not trespass on any other branch of government.

With that in mind, he added that the court has a duty to assess the government’s action to determine whether it had breached the Constitution.

Earlier, King’s Counsel Ranford Braham, who is also representing the Attorney General, while emphasising the separation of power to the proper interpretation of the Constitution, rejected the argument that Parliament had usurped the executive.

He maintained that the amendment did not affect the entrenched provision, while adding that neither did it affect the DPP’s role or power nor give the Parliament power to appoint or remove her.

“The nature, extent and ambit of the application of the separation of power principle is to be determined by the interpretation of the Constitution and, that being the case, action taken against the legislature may not be defeated simply by applying the separation of power principle,” he said.

Braham further argued that, if the Constitution modifies the separation of power principle, the court will not be in a position to act otherwise than to enforce the action, even if the principle is “touched in the general sense” as the Constitution permits it.

Arguing that the claimant’s submissions must be dismissed, Braham asked the judges to find that there was nothing unconstitutional about the amendments.

In the meanwhile, the three-judge panel of justices Sonya Wint-Blair, Simone Wolfe Reece and Tricia Hutchinson Shelly yesterday reserved judgment in the case.

Wint-Blair however indicated that she and her colleagues are aware that the case is a matter of priority.

Attorneys-at-law Neco Pagan and Kathryn Williams also represented the Government.

tanesha.mundle@gleanerjm.com