Gov’t argues Constitutional Court erred in striking down DPP’s extension

Counsel for the attorney general (AG) yesterday argued that the Constitutional Court erred when it found that the amendment to the Constitution increasing the age of retirement for the director of public prosecutions and the auditor general did not extend the director of public prosecution’s (DPP) tenure and merely set out the maximum retirement age.

The Government is challenging the Full Court’s ruling which had struck down Section 2 (2) of the amendment to the Constitution which gave DPP Paula Llewellyn the power to elect to remain on the job, declaring it “unconstitutional”.

The court found that Section 2 (1), which allowed for the constitutional change in July last year to raise the age of retirement for the DPP and the auditor general from 60 to 65, was valid.

The three-judge panel had ruled that “the incumbent DPP has already reached the extended retirement age, [which] means that the application of Section 2(2) cannot lead to another extension by way of an election on the part of the incumbent DPP as this is unlawful”.

The DPP reached retirement age in 2020 but got a three-year extension, which ended in September 2023.

The judges ruled that the only lawful way to extend Llewellyn’s tenure further was by agreement between the prime minister and the opposition leader.

However, attorney-at-law Allan Wood, who is representing the AG, argued yesterday in the Court of Appeal that the lower court judges had misinterpreted the section.

Pointing to the Full Court’s finding that Section 2 (2) of the amendment gave the DPP power to extend her term of office, the lawyer said that was never argued by the claimants.

However, he said the judges in their interpretation of the section resorted to the memorandum of objects and reasons in the bill which indicated that it was never intended to alter the extension mechanism currently provided in the Constitution

But while the mechanism was not altered, he said specifics of the mechanism which referred to the age limit were changed in accordance with the amendment to Section 2 (1).

He further argued that, even though there was no ambiguity or uncertainty in the language or conflict with the memorandum of objects, “the court misread the statement of objects and reasons by only having regard to the words that they highlighted in the judgment – ‘currently maintained the extension mechanism currently provided for in the Constitution in relation to those offices’ – and ignoring the words that followed –’but to increase the word to which those officers may continue in office after attaining the retirement age from 65-70’.”

He added, “They ignored the language of the amendment in relation to the extension, which has changed the possibility of the extension from 65 to 70 and they ignored or read out of context the first words of the memorandum.”

Wood submitted that the provision that extended the right of the DPP to hold the office to 65 was the amendment of Section 2 (1) and not the enactment of Section 2 (2).

The interpretation that “Section 2 (2) which increased the retirement age was drafted to increase the retirement age but that any increase in tenure would have to follow the process in section 96(1)” was a fundamental error, he stressed

According to him, the DPP’s tenure flowed from the amendment to Section 96 (1) that increased the age.

“She don’t have to apply for anything, she don’t have to request anything, it flowed by the amendment which is the amendment that gives tenure.

He said the words “shall hold office,” in Section 96 (1) of the Constitution conferred tenure.

“Without the amendment of Section 96 (1b) to change the age at which an extension could be allowed, a ‘conflict and absurdity’ would have occurred,” Wood argued.

Earlier in his submission, Wood maintained that the amendments were valid as they were carried out per the stipulations of the Constitution while noting further that the court had found that it was not done for an improper purpose.

“Quite simple what this case is about is that the respondents do not like the results,” he declared.

Further in his argument before the panel led by Justice Jennifer Straw, Wood sought to clear up what he found to be a misconception by the respondents.

He said that contrary to their written submission that the AG is contending that Parliament has absolute or uncontrolled power to amend the Constitution, the position of the AG is that control is governed by Section 49 of the Constitution.

The power of Parliament, he said therefore is not absolute but is controlled.

“We do submit that Section 49 is a clear and unambiguous provision that sets out a comprehensive scheme governing the alteration or amendment of the Constitution and there is no room as contended for by the respondents for the court to add further limitation or powers that are not within what is spelt out in Section 49,” Wood posited.

Opposition lawmakers Phillip Paulwell and Peter Bunting had initiated the challenge to the amendment to the Constitution, while the attorney general was the respondent in the matter.

Following the ruling, the claimants said the court’s decision meant that Llewellyn would have to leave office immediately while the AG had the opposite view.

The AG subsequently appealed, claiming there were errors in the judgment.

Attorney-at-law Michael Hylton, King’s Counsel, and Kevin Powell are representing the Opposition lawmakers. Attorney-at-law Douglas Leys is representing the DPP, who is an interested party in the appeal.

The appeal will continue today.

tanesha.mundle@gleanerjm.com