JAMAICA | Gov't will appeal Constitutional Court Decision says Chuck

KINGSTON,  Jamaica, April 19, 2024 - Justice Minister Delroy Chuck says the government will appeal today’s monumental Constitutional Court decision that a second extension of Director of Public Prosecutions Paula Llewellyn's tenure is unconstitutional.

It is yet to be determined whether there will be a stay of the judgment while the government’s appeal is being considered as a determination has to be made as to how the Court’s decision will affect the Office of the DPP.

In a  ruling handed down Friday morning by the Full Constitutional Court, which included Justices Sonya Wint-Blair, Simone Wolfe-Reece and Tricia Hutchinson-Shelly, Justice Wint-Blair read  the court's ruling, noting that "the only lawful method to extend the DPP's tenure remains by way of an agreement between the Prime Minister and the the Opposition Leader."

'Background to the Issue'

In July 2023, the Constitution (Amendment of Sections 96(1) and 121(1)) Act, 2023 was passed after a majority vote in both Houses of Parliament.

The Act now contains section 2(1) which increases the age of retirement of the DPP, and section 2(2) is a new section which gives a right to the DPP to elect to remain in office despite the role of the Prime Minister and Opposition Leader regarding an extension of tenure.

This right applies to a DPP who is sixty years of age. The incumbent Director of Public Prosecutions (“DPP”) was born in 1960 and had reached the retirement age of sixty under section 96(1) of the Constitution. In January 2020, the DPP requested an extension of tenure.

The Prime Minister initially proposed a five-year extension, and the Governor General approved a three-year extension, which expired in September 2023.

In February 2023, the DPP sought another extension, which was declined by the Public Service Commission (“PSC”) in May 2023, citing constitutional limitations on the grant of a second extension as well as the refusal of the Prime Minister to grant the extension.

Following the PSC's decision, the Act was passed. In response, the DPP submitted a letter to the PSC, electing to continue in office until the age of 65. The PSC approved a two-year extension from September 21, 2023, and recommended that the Governor General appoint the DPP. His Excellency made the appointment based on the PSC's recommendation.

A lawsuit was filed by the opposition People's National Party, by  claimants Phillip Paulwell, MP and Senator Peter Bunting, seeking a declaration that Ms. Llewellyn should not have been allowed to remain in office beyond September last year, when a three-year extension granted to her in 2020 had ended.

The claimants contend that the amendment is unconstitutional and should be struck down on the basis that the current Director of Public Prosecutions (DPP) has already received one extension in office and should not benefit from the Act which seeks to grant a second extension. 

 In addition, the claimants contend, the Act bypassed the legal process for extending the DPP's retirement age effectively usurping the powers vested in the Governor-General and the Opposition Leader. In support of their position, the claimants exhibited evidence of the debates in Parliament.

They had asked the court to rule on the constitutionality of the amendments to Sections 96(1) and 121(1) of the Constitution.

The opposition argued that the government hurriedly pushed the Bill through Parliament and maintained that it was not consulted on the matter.  

The amendments facilitated the change in retirement age for the DPP and Auditor General from 60 to 65 years.

The Bill, which was piloted by Justice Minister Delroy Chuck, was introduced on July 25 last year, then debated and passed in the House of Representatives on the same day. It was approved in the Senate three days later.

The amendment meant Ms. Llewellyn, who was 63 at the time, could continue in office for at least another two years.

 THE DECISION OF THE FULL COURT:
The court held that:

1. that section 2(1) of the Act is constitutional;
2. section 2(1) of the Act has amended the Constitution as regards the retirement age of the DPP;
3. 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. Section 2(2) of the Act is not a valid section, and is severed from the Constitution because the process remains unchanged for extending the retirement age;
4. Section (2)(2) is unconstitutional, null, void and of no legal effect.
5. On a proper interpretation, section 11 of the Senate and House of Representatives (Powers and Privileges) Act did not prohibit the claimants from exhibiting the proceedings in Parliament.

THE COURT DECLARES AS FOLLOWS:

1. Section 2(1) of the Act is a valid constitutional amendment.
2. Section 2(2) of the Act is an invalid constitutional amendment
3. Section 2(2) is severed from the Act and is struck down and declared as unconstitutional, null, void and of no legal effect.

'Respect the Constitution'

Reacting to the ruling, First Claimant and Leader of Opposition Business Phillip Paulwell on Friday insisted that  the case was not an attack on DPP Llewellyn's tenure as head prosecutor.

Mr. Paulwell said the ruling represents the importance of respecting the Constitution as well as the arguments laid on the table by the parliamentary opposition.

"This matter could have been dealt with by a conversation with the Prime Minister and the Leader of the Opposition, which is what the Constitution requires. And if that were done and respect is given, then we wouldn't have this unfortunate situation where a public servant is being embarrassed. 

So I regret that aspect. We shouldn't have to be in Parliament one day summoned to pass a law without the requisite respect and consultation being done, and I think this is fundamentally a commentary on that," he asserted.

The opposition remains steadfast on protecting the sovereignty and integrity of the Constitution, Mr. Paulwell said.

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