The legal team for the People’s National Party (PNP) members who are trying to keep Paula Llewellyn, KC, out of the post of director of public prosecutions, continued to hammer home their point Thursday that the extension of her tenure by the the Government was improper.
King’s Counsel Michael Hylton, arguing before the Court of Appeal, said that the dominant driving purpose for the July 25, 2023 Bill that was introduced to parliament was to give Llewellyn a second extension of her tenure as DPP.
“If the court concludes that this was indeed the purpose, then we submit, it would clearly be an improper purpose…,” Hylton told the court comprising of Justices of Appeal Jennifer Straw, Vivene Harris and Kissock Laing.
Hylton, who appears before the appellate court for Phillip Paulwell and Peter Bunting, contended that the introduction of Section 2 (2) of the Constitution to extend Llewellyn’s tenure in office was an attempt by parliament to circumvent the process after the Public Service Commission (PSC) refused in February 2023 to grant Llewellyn a second extension.
He said the PSC had informed Llewellyn that the second extension couldn’t be granted because the prime minister had sought legal advice on the matter and was told that an additional term would be unconstitutional.
Hylton said there are provisions within the Constitution that deal with extension of tenure and that the court will have to consider whether the move by parliament to introduce Section 2 (2) affects any other provisions.
The Full Court of the Supreme Court had struck down Section 2 (2) in April of this year on the ground that it was unconstitutional.
The appeal was brought by the Attorney General of Jamaica who is seeking to overturn the decision of the Full Court.
In his reply to Hylton’s submission, King’s Counsel Ransford Braham sought mainly to counter the point of improper purpose.
“In this case, the amendment made is in accordance with the Constitution,” Braham said, citing case law from the Privy Council.
Braham told the court that the improper purpose principle should be eliminated as it has “no place before court today”. He further bolstered his point by noting that the Constitution does not outline what improper purpose is, which makes the principle shaky ground to stand on.
Citing case law, Braham argued that the fact that a law is passed for a specific purpose isn’t necessarily wrong.
“Even if it was the purpose and intent to secure the extension of the incumbent DPP, that is not an improper purpose — no it’s not,” Braham said.
He said that bills have been passed for decades to benefit private entities so long as those bills did not breach the Constitution.
“…the fact that there is a benefit to a person in and of itself doesn’t constitute an improper purpose,” Braham pointed out.
King’s Counsel Douglas Leys, in his response on behalf of Llewellyn, said that the action by the Government is constitutional “on the face of it”.
He pointed out that parliament acted “admirably” in that it ensured the retirement age of the DPP and auditor general was aligned with the rest of the public service.
The case continues in the Court of Appeal on Friday.
