DPP IN LIMBO

CONFUSION SHROUDS Paula Llewellyn’s status as director of public prosecutions (DPP) with the Government insisting that there is no order in place for her to demit office, while the Opposition contends that the post is vacant arising from yesterday’s Constitutional Court ruling.

The Full Court panel of three judges ruled that an amendment to the Constitution last July raising the retirement age to 65 was valid, but struck down a provision that allowed Llewellyn to choose to continue as “unconstitutional, null and void and of no legal effect”.

“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 for the incumbent,” the judgment said.

But the judges found that: “The provisions of Section 2(2) cannot be lawfully applied to lead to an extension in office by way of an election on the part of the incumbent.”

They said the “only lawful way to extend the tenure of the DPP is by way of an agreement with the prime minister and the opposition leader”.

The Opposition, in welcoming the judgment, interpreted it to mean that Llewellyn’s post became vacant in September 2023 when a three-year extension she received expired. She reached the original retirement age of 60 in 2020.

“Our position is that the DPP is no longer the DPP and has in fact not been the DPP since her 63rd birthday and now that the ruling has been made, she can no longer perform regular duties as the DPP.

“A new DPP should be appointed in accordance with the procedures that have been established for that and somebody needs to be appointed to act as DPP in the interim,” said Opposition Leader Mark Golding during a press briefing at the People’s National Party’s (PNP) headquarters in St Andrew.

Golding stressed that Llewellyn should walk away.

“It is highly undesirable that somebody should hold office as DPP in this country knowing that his or her tenure is a matter of grave concern to the Opposition of the country. It is not a good thing for the office of the DPP to be in any way politically contentious and I think in light of today’s ruling she should stand down and ought not to make an effort to hold that office,” he said.

Lead attorney Michael Hylton, KC, who represented PNP lawmakers Phillip Paulwell and Peter Bunting who brought the challenge against the widely condemned actions of the Andrew Holness administration, said Llewellyn would have to step down “as of today”, barring an appeal.

“The case is not about Ms Llewellyn... the case is about the rule of law ...and that the Constitution needs to be respected,” Hylton said.

However, the Government has taken a different position on the case which was decided by Justices Sonya Wint-Blair, Simone Wolfe Reece and Tricia Hutchinson Shelly.

Justice Minister Delroy Chuck said the Government does not agree with the decision to strike down the amendment and said it will be appealing.

He also indicated that the Government will be pursuing a stay of execution.

However, it is not clear if that will be done in light of a subsequent statement from the attorney general which made no mention of the stay.

“The claimants have interpreted the orders of the court as having the effect of removing the incumbent DPP from office. No order has been issued to that effect,” it said.

“By striking down Section 2(2), the court has removed the DPP’s option of electing to retire before sixty-five. The DPP attained the age of 63 in September 2023 and has made no election to retire,” the release said further.

Attorney-at-law Allan Wood, KC, also acknowledged the different interpretations of the ruling.

“They are reading all sorts of things that have not been ordered. I don’t see where it says that she must demit office immediately, that’s not my interpretation of the order.”

Asked whether the view from the judges that the DPP should not lawfully benefit from the extension, given that she had already received a previous extension, Wood said that it would not apply to the country’s chief prosecutor as she was not given an extension.

Instead, he said the amendment automatically increases her retirement age, which allows her to remain in office until she is 65.

The AG said given the divergence of interpretation and given that judgment was given for the claimants, the Government will be pursuing an appeal.

However, Hylton countered that “the judgment is clear”.

According to him, Llewellyn was given an extension of three years and is not entitled to benefit from the amendment having completed the extension.

Furthermore, Hylton noted an additional point in the judgment that there is a process that needed to be followed, which is consultation between the prime minister and the opposition leader, which was not done.

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

Paulwell and Bunting argued that Parliament had usurped the Executive arm of the Government by passing a bill to extend the DPP’s tenure, that the amendments were done for an improper purpose and that the Parliament, in passing the bill, had breached the separation of powers principle. They lost on the two latter grounds.

While the Government contended that the amendment did not affect the entrenched provision, neither did it affect the DPP’s role or power nor give the Parliament power to appoint or remove her.

In handling down the decision, Justice Wint Blair said,” A new provision introduced into the Constitution by Section 2(2) of the Act grants the DPP the option to remain in office after age 60 and this gives the DPP a level of authority not envisaged by the Constitution’s framers.”

For Golding, the judgment marked a significant day in the history of Jamaica in relation to matters of governance.

“We are living in times when we have a Government which likes to play fast and loose with the constitutional rights of our citizens and with the normal principles of good democratic governance in the country,” he said.

According to Golding, the ill-advised decision by the Government is the latest in a series of constitutional losses for the Holness administration.

It also resurrects the judicial hammering that Holness received in the senate letter saga a decade ago.

“This is not the first occasion that the PNP has to assiduously guard the Constitution against a government that is intent on violating it in various ways,” he said, pointing to the NIDS legislation which was rushed with undue haste and when challenged was found to be unconstitutional.

Meanwhile, Paulwell emphasised that the constitutional challenge was not a personal attack on the current DPP, but rather a fundamental legal point.

“I have been in Parliament for 29 years and there is a way for the democracy to work. If you are an opposition of 14 or 31 you are in opposition and respect is due and we have found that that has not been the case since 2020 where little or no respect is given to the Opposition,” he said.

The PNP’s spokesman on justice, Donna Scott-Mottley, for her part said, “This administration believes because they have been elected it is their sole duty to govern and they need not listen to anybody at all and that has been their shortcomings and failing and there are other matters pending aside from those that are behind us that will demonstrate the folly of their ways.”

Efforts were made to contact Llewellyn but calls to her phone went unanswered.

tanesha.mundle@gleanerjm.com