This week’s featured overall development as Newsmaker of the Week is the decision by Director of Public Prosecution (DPP), Paula Llewellyn range of reactions to Friday’s ruling of the Full Court of the Supreme Court that the Government’s amendment of the Jamaican Constitution to extend the tenure of Director of Public Prosecutions, Paula Llewellyn, was unconstitutional.
The decision by the panel of three judges – Justice Sonya Wint-Blair, Justice Simone Wolfe-Reece, and Justice Tricia Hutchinson Shelly – has been described as a bombshell in some quarters, with questions being subsequently raised about the implications of Friday’s judgment.
Up to the beginning of the weekend, the future of Llewellyn remained uncertain, as lawyers representing the Opposition People’s National Party (PNP) and other legal luminaries maintained that the court has decided that Llewellyn could not benefit from the amended constitutional legislation to continue as DPP until age 65 because she already received a three-year extension before the law was amended.
However, the Attorney General’s Chambers, Justice Minister Delroy Chuck, and other attorneys representing the Government, expressed the belief that those interpretations of the judgment were wrong because the court made no such order for Llewellyn to demit office.
They were initially of the view that Llewellyn should remain the DPP, and could stay in that position until age 65, because the Full Court ruled that moving the age of retirement for a DPP from 60 to 65 was lawful.
There has been no public comment from Llewellyn or the Office of the Director of Public Prosecutions (ODPP) since the delivery of the judgment, before a statement came second-hand on Sunday evening. She was reportedly in meetings with prosecutors at her office after the court ruling, and some media reports were indicating that “a wait-and-see approach” appeared to have been taken by her office.
On Friday, the proceedings at several Circuit Courts across the island were reportedly disrupted, because some prosecutors who were acting on behalf of the DPP in criminal matters, were unclear of how they would proceed going forward, given the developments surrounding Llewellyn.
In fact, attorney Oswest Senior Smith, in a television interview, said he was in the middle of a bail hearing in the St Ann Circuit Court when presiding High Court Judge, Justice Andrea Pettigrew-Collins, informed him that the prosecutors could not continue arguing the case with the status of the DPP now in limbo.
Delroy Chuck
With Circuit Courts set to reopen on Monday, Justice Minister Delroy Chuck said the Government will be appealing the court’s decision, but will be hoping to get an immediate stay of the orders that was made by the Full Court, which is also referred to as the Constitutional Court.
But some attorneys have expressed the view that there cannot be a stay of execution of a decision that is declaratory.
In delivering the judgment, Wint-Blair said the issue that the court had to decide was whether Sections 96 (1) and 121 (1) of the Constitution of Jamaica were validly amended by the constitution amendment of Section 96 (1) and 121 (1), Act, 2023.
The court said the change in the Constitution in July 2023, to raise the age of retirement for the DPP and the auditor general from 60 to 65, was valid.
But it said the amendment allowing Llewellyn to choose to remain, was wrong.
That section is “unconstitutional, null, void and of no legal effect,” declared Wint-Blair in giving the oral ruling of the court, which was broadcasted on the Judiciary of Jamaica’s YouTube channel.
“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,” Wint-Blair said.
Further, she said the incumbent DPP, Llewellyn, has already reached the extended retirement age.
“… This means that the application of section 2 (2) cannot lead to another extension in office by way of an election on the part of the incumbent DPP, as this is unlawful,” said Wint-Blair.
She added that, “The only lawful method to extend the DPP’s tenure remains by way of an agreement between the Prime Minister and the Opposition Leader.”
In the final analysis, the judge said Sections 2 (2) of the Act is an “invalid constitutional amendment”.
Therefore, it is ordered to be “severed from the Act, struck down, and declared as unconstitutional, null, void, and of no legal effect.”
But in a press release on Friday, the Justice Ministry said: “The Government of Jamaica does not agree with this part of the ruling of the Constitutional Court, and will instruct its attorneys to ask for a stay of execution and immediately appeal the ruling.”
The claimants for the People’s National Party (PNP) — Leader of Opposition Business in the Senate and Leader of Opposition Business in the House of Representatives, Peter Bunting and Phillip Paulwell, respectively — had asked the Supreme Court to strike down the constitutional amendments that were passed by simple majorities in both Houses of Parliament as being null and void.
The Opposition, in its claim, argued that the Government hurriedly pushed the Bill to amend the Constitution through Parliament, and maintained that it was not consulted on the matter.
Opposition Leader Mark Golding
The Government maintained that its decision was lawful and in line with the Constitution.
In reacting to the decision outside the Supreme Court building in downtown Kingston, veteran attorney Michael Hylton, who represented Bunting and Paulwell, said Llewellyn will have to step down “as of today (Friday)” as DPP, barring an appeal from the Government.
But the Attorney General’s (AG) Chambers, in a press statement late Friday, said the court made no such orders relative to Llewellyn.
“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,” the AG’s Chambers said.
Continuing, it said: “The court has confirmed that by Section 2 (1) of the amending Act, the age of retirement has been increased from 60 to 65 (years).
“Further, by striking down Section 2 (2), the court has removed the DPP’s option of electing to retire before 65. The DPP attained the age of 63 in September 2023, and has made no election to retire.”
The AG’s Chambers said given the divergence of interpretation, and given that judgment was given for the claimants, the Government will be pursuing an appeal.
But by Sunday there was a pivotal move from the DPP herself, which the AG’s Chambers related in a second release on the matter.
“Due to the ambiguity and the consequent uncertainty arising from the Full Court’s judgment in Paulwell and Bunting v the Attorney General SU 223 CV 02499, the Director of Public Prosecutions, (DPP), has advised that she is unable to carry out the functions of her office at this time.
“In accordance with section 96 (3) of the Constitution, the Public Service Commission will be invited to appoint a qualified person to act in the role of Director of Public Prosecutions for the time being.
“After careful consideration of the judgment and in the public interest, the Attorney General will be appealing the Full Court’s decision immediately, to have the issues resolved and determined by the Court of Appeal.”
Notably, despite the seeming uncertainly about the matter, the written judgment of the Full Court’s decision actually dealt with the issue of whether the amendment properly applies to the incumbent office holder (Llewellyn).
“Having found that the Act was passed using the proper procedure laid down in the Constitution, can its provisions be applied to the incumbent DPP?
“The incumbent had already attained the (pre-amendment) age of retirement and at the time of the amendment was nearing the completion of the period of extension.
“The provisions of Section 2 (2) cannot be lawfully applied to lead to a further extension in office by way of an election on the part of the incumbent,” the Full Court of the Supreme Court stated.
In relation to the Government’s intention to get a stay of the Full Court’s orders, attorney Michael Hylton, a former solicitor general, opined that, “You cannot get a stay of a declaration when the court says the law is bad.”
On the overall ruling, Hylton said “the case is not about Ms Llewellyn”, but rather “the rule of law… and the Constitution needs to be respected.”
For his part, Paulwell told reporters outside the Supreme Court building on Friday that the judgment is an important statement on governance.
“A lot of these things can be avoided enuh, if there is respect for the Opposition in Parliament, and this matter could have been dealt with by a conversation with the prime minister and the leader of Opposition, which is what the Constitution requires,” said Paulwell.
“… And if that were done, and respect was given, then we wouldn’t have this unfortunate situation now where a public servant is being embarrassed. I regret that aspect of it for sure,” Paulwell indicated.
Phillip Paulwell
At a press conference hosted by the Opposition PNP shortly after the court ruling, PNP President and Opposition Leader, Mark Golding, interpreted the judgment to mean that Llewellyn’s post became vacant in September of 2023 when her three-year extension expired.
“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,” Golding opined.
“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,” he suggested.
He further urged Llewellyn to walk away from the post, as it would be “undesirable” if she stays in the position.
Golding also advised that his party is prepared to continue the legal battle all the way to Jamaica’s final appellate court, the United Kingdom (UK) Privy Council.
On the matter of cases handled by the DPP after September of 2023 up to Friday, April 19, senior attorney Bert Samuels said a provision in the Constitution states that acts done by the DPP are valid even after the holder of the office is subsequently declared not the occupier of such an office.
Section 96 (2) of the Constitution states that “nothing done by the Director of Public Prosecutions shall be invalid by reason only that he has attained the age at which he is required by this section to vacate his office.”
Other attorneys have, however, expressed the view that based on the UK Privy Council’s judgment in a previous case involving Paul Chen Young that dealt with the issue of retired judges handing down rulings after retirement, it could perhaps be interpreted that that mean Section 96 (2) would not save the cases handled by the DPP after September 2023.
Meanwhile, in reacting directly to the ruling, Samuels said: “There are times when the old guard should step aside graciously.”
As the country awaits a decision on what will now happen at the ODPP, Jamaicans on social media have been reacting to Friday’s judgment of the Full Court of the Supreme Court.
“A major blow for politicians and elites. A major victory for justice and the Jamaica people,” wrote a man on Facebook relative to the court ruling.
“It seems that the constitutional scholars have had their say, and the outcome is damning for her (Llewellyn),” another man stated.
Opined another man: “It’s kinda tedious, however. The Opposition can make good sense prevail and agree with the PM (prime minister) to make her (Llewellyn’s) last term complete.
“The change of years for retirement is valid, it’s just the same person to continue in the post was the concern that can be fixed with the PM and the Opposition leader,” the male Facebook user said.
Shared a woman: “I disagree with the court and Miss Llewellyn should keep her job because she is the best ever DPP, and should continue.”
Added another woman: “The DPP should remain firm and grounded in her role as lead prosecutor for the country… Shame on PNP for doing this.”
Meanwhile, another Facebook user dubbed the overall developments as “a constitutional crisis”.
Said the user: “The Government has created this constitutional crisis, in that prosecutors now don’t know how to proceed, and the attorney general, who knows better, a give… advice, and the judges seem to have another view.
“Jamaica needs help. Ms Llewellyn, just walk away and save us the embarrassment, please,” the user stated.
