‘A GREAT RISK’
Llewellyn’s exercise of DPP’s powers after ruling could be dangerous, warn legal experts
Published:Sunday | April 21, 2024 | 12:09 AMLivern Barrett - Senior Staff Reporter
It is “dangerous” and “a great risk” for the country’s chief prosecutor to continue to exercise the powers of her office following a ruling by the Constitutional Court on Friday, a top legal expert has warned.
The Jamaican Constitution gives the Office of the Director of Public Prosecutions the sole legal authority to commence and discontinue criminal cases before the courts.
The office is also required, in some instances, to deliver a legal opinion – commonly referred to as a ruling – authorising the police to file criminal charges against accused persons.
A panel of three judges ruled on Friday that an amendment to the Constitution, led by the Andrew Holness administration last July, that raised the age of retirement for the DPP from 60 to 65 was valid.
However, a provision that allowed Llewellyn to choose to continue in the post beyond her 63rd birthday last September was declared “unconstitutional, null and void and of no legal effect”.
Dr Lloyd Barnett, a respected constitutional attorney, believes Llewellyn’s exercise of her powers to initiate a criminal prosecution via a voluntary bill of indictment or discontinue a case by way of a nolle prosequi could create a legal conundrum in light of the judgment.
According to him, the ruling by the Constitutional Court means that Llewellyn “is not legally in office, which is worse”.
Not [legally] in office
“If you are removed from office, it takes effect from the time of removal. But if you are not [legally] in office, it puts into question the validity of anything you did before the order was made,” Barnett explained.
“So, if the person who institutes the criminal proceeding is not holding a valid office, then it brings into question the commencement of those proceedings, … meaning that it’s too problematic for the country to be subjected to that risk,” he told The Sunday Gleaner yesterday.
Barnett added: “Unless there is some order of the court that permits it, at this juncture, it’s too dangerous and problematic for the director … to continue to exercise the powers of the office.”
Another top attorney, Peter Champagnie, KC, agreed that the DPP’s exercise of her constitutional powers to commence and end criminal cases “would most definitely be affected” by the judgment and urged caution.
Government’s intention
“Given what is before us now and given what the Government’s intention is, I think prudence would dictate that the DPP, which is the subject of this appeal, would not exercise any power that would be dramatic on any matter that is before the court,” Champagnie told The Sunday Gleaner.
“Until this matter is settled on appeal, great caution should be exercised.”
However, Justice Minister Delroy Chuck has a different view.
“An appeal would maintain the status quo until it is heard and determined,” he told The Sunday Gleaner, referring to the Government’s publicly stated intention to challenge the ruling before the Court of Appeal.
“As you will appreciate, an appeal is needed, even for clarification,” he insisted yesterday.
Llewellyn has not commented publicly on the judgment, which was handed down in a lawsuit filed by the parliamentary Opposition.
The Attorney General’s Chambers – the legal adviser to the Government – has publicly disagreed with the suggestion that the ruling ends Llewellyn’s tenure, pointing out that “no order has been issued to that effect”.
Champagnie also expressed concern that public discussion on the issue is heading in a direction that could cause serious damage to the “first-class reputation of an outstanding public servant”.
“By any measure, she has been an outstanding DPP, and I make bold to say the best the country has ever seen,” he said of Llewellyn, who was appointed in 2008 and is the first woman to hold the post.