'There is no right to early retirement'

Lawyers for the People National Party (PNP) yesterday rubbished the argument of the government and the Director of Public Prosecution (DPP) Paula Llewellyn that a provision in the amendment to the Constitution last July was to enable her to opt for early retirement while charging that such a right never existed.

“There is no right to early retirement. Neither the present 2017 Pensions Act nor the repealed Pensions Act gave a right to early retirement. What the 2017 legislation provided was to apply for early retirement,” attorney-at-law Kevin Powell argued.

He further pointed out that Section 14 of the Pensions Public Service Act dealt only with the normal retirement age but that pensionable officers could apply for early retirement under Section 15.

The Full Court in April ruled that an amendment to the Constitution raising the retirement age for the DPP and the auditor general to 65 was valid, but struck down a provision, (Section 2 (2) - that it says allowed Llewellyn to choose to continue, as “unconstitutional”.

Lawyers for the DPP and the Attorney General in an appeal brought by the State against the decision, have however argued the Full Court erred in its interpretation of the provision which they say was to preserve the DPP's right to early retirement.

They advanced that the DPP, specifically, was deprived of that right when the Pensions Act was amended in 2017 and the public servant retirement age was increased from 60-65.

According to them, the DPP and the auditor general were never covered, as their offices are governed by the Constitution, hence why Parliament had to step in with the amendments to resolve the issue.

But Powell argued before the three-judge panel hearing the appeal that both the DPP and the attorney general blundered in their interpretation of the section and that the Full Court was right to have struck it down.

He insisted that the right to early retirement never existed for any public servants, even under the Pensions Act.

Furthermore, he said the DPP was an existing public service officer whose right to apply for early retirement was maintained under the Pension Act and such she was “ not left out in the cold”.

Additionally, he said her rights were maintained in other legislation and as such it was not necessary for Section 2 (2) to preserve any right to early retirement.

But Justice Kissock Laing queried whether he was saying that the submissions by Leys about her age, date of birth, new retirement age and transitional period, were not applicable and that it was simply to look at the extended period.

“Where would the incumbent rely to state that position to say I am 65 and based on this act I may apply for early retirement. Where in the act could she point directly to,” he asked.

Powell answered that she had already reached 60 and could have applied for early retirement under the 2017 Pensions Act.

But Laing again repeatedly asked what specific section would she rely on.

Powell said Section 14 of the act and columns one and two of the first schedule as well as Section 3 (a) of the Public Service Regulation.

He further argued that the Full Court was correct to have struck down Section 2 (2) as it did not amend or purport to amend the Constitution.

Powell said the section began by saying you can disregard whatever section one says and then singled out the incumbent DPP and granted her a right which never existed in the Constitution.

Asked by Laing if that was a constitutional bar, Powell replied, "In and of itself it may not be a bar as there may be other reasons for it to be unconstitutional".

He further argued the section must be given a retrospective interpretation but Justice Jennifer Straw asked why the DPP should not have benefited from the extension given that she was still occupying the office.

Powell said she had already gotten an extension and was already retired.

However Laing said, “But she has the benefit of an extension and therefore she is validly in the position at that time, she is not now seeking a second extension, she is getting an extension by virtue of the amendment.”

Powell, however, said that raised the question of whether the legislators were seeking to grant a further extension by circumventing the constitutionally mandated process. Additionally, he said when legislation is passed, it should be “forward-looking” unless it says directly that it should be retrospective.

Laing and Straw both indicated that they did not understand why he was saying that it was retrospective but Powell said the act cannot change what happened in the past and there was nothing in the amendment which suggested that it should have that effect.

Meanwhile, lead lawyer for the PNP respondents, King's Counsel (KC) Michael Hylton urged the Court of Appeal to accept that the amendment was unconstitutional as it breached the separation of power principle and was enacted for an improper purpose.

“Certain principles are inherent in our Constitution. One is separation of powers. Another is proper purpose. Section 2 (1) of the Act breached those principles; therefore Section 2 (1) of the act is unconstitutional and void,” he argued

Additionally, he said, “The legislature circumvented, undermined or contradicted the constitutionally mandated process for the extension of tenure of a sitting DPP.”

Turning to one of the main issues to be resolved in the case, the purpose of the act, Hylton said all evidence must be considered contrary to the State's argument that the purpose was in the memorandum of objects and reason.

Noting that it was the attorney general’s lawyer who exhibited the correspondence between the DPP and the Public Service Commission as well as multiple documents to indicate that the purpose of the act was to align with the Pensions Act, he said, "The Appellant can’t have it both ways.”

Hylton will continue his submission today.

Hylton and Powell are representing Opposition Member of Parliament Philip Paulwell and Senator Peter Bunting who had challenged the amendment to the Constitution.

KC Allan Wood and Ransford Braham are representing the attorney general while Leys is representing the DPP.

tanesha.mundle@gleanerjm.com