King’s Counsel Douglas Leys submitted on Tuesday that the Full Court of the Supreme Court “fell into error” with its ruling that resulted in then Director of Public Public Prosecutions Paula Llewellyn being booted from the post.
Leys’ submission was made in the Court of Appeal where efforts are being made by the attorney general and Llewellyn to overturn the April 19, 2024 ruling.
The case that saw Llewellyn’s extension as director of public prosecutions being struck down in the Full Court was brought by Phillip Paulwell and Peter Bunting, who are senior members of the Opposition People’s National Party.
Leys also delved into the Pensions Act 2017, and its predecessor the Pensions Act 1947, which he described as key components of Llewellyn’s submissions, that the DPP is a public officer, as defined in the Constitution of Jamaica, and like any other public officers on the Civil Service Establishment Act she is entitled to a pension and the benefits of early retirement as set out in the Pensions Act 1947.
“The submissions are made against the backdrop that the Full Court found that Section 2 (2) of the Amendment of Sections 96(1) and 121(1) Act was unconstitutional, null and void. The intervenor [Llewellyn] will contend that the clear aim of the Act was to maintain the present mechanism in the Constitution save and except that of increasing the tenure in office of the DPP and the auditor general and making provision for the early retirement of these public officers, having regard to the fact that the age for retirement was now increased to 60,” Leys said.
He said this is clear from the Memorandum of Objects and Reasons, which stated that the purpose of the Act was to maintain the present mechanism in the Constitution in relation to the DPP and the auditor general, who are public officers and who were required under the Constitution to retire at age 60.
“It is the submission of the intervenor [Llewellyn] that the object and purpose of the Act was to align the retirement benefits of these two public officers with similar rights to those public officers who enjoyed, the right to early retirement, as a result of the increase in retirement age for public officers under the Pensions (Public Service) Act 2017 (the Pensions Act).
Leys explained that the Pensions Act came into force on October 23, 2017, and its primary purpose was to establish a contributory pension scheme for pensionable officers as defined in that Act.
He said that Section 3 of the Act declared that from October 23, 2017 (the date the Act came into force), all offices in the public service were designated as pensionable offices.
He added: “The Pensions Act, also by virtue of section 14(1) increased the existing retirement age for “new public officers” from 60 years of age to 65 years. There was also an adjustment to the pension entitlements of existing public officers, especially the rights to early retirement and new retirement ages, as set out in the transitional provisions of that Act (page 26).”
He told the court that this was a major hurdle for Parliament as these transitional provisions granting public officers the right to early retirement, could not apply to the DPP and the auditor general whose offices were created and established by the Constitution.
“It could not apply because in the case of the DPP, if it did, it would put her normal retirement age to 62 years and six months, well pass the 60 years proscribed in the Constitution,” Leys said, adding that this is also against the backdrop that “these officers” were entitled to elect for early retirement under the repealed Pensions Act.
He said that the benefit of early retirement required protection in order that there would be consistency with Section 95 of the Constitution, which expressly states that the terms and conditions of service, cannot be altered to the detriment of the DPP.
Leys said it was, therefore, incumbent on Parliament to “protect and honour” the existing rights for this public officer.
“Thus, Parliament having increased the retirement ages of the DPP and the auditor general from 60 to 65 years of age, could not leave the right to early retirement of these public officers unattended. It had to address this issue to be consistent with constitutional mandate in Section 95. If it did not, the DPP conditions of service as well as the auditor general, that is her right to early retirement, would have been uncertain and would put her at a disadvantage when compared to other public officers under the Pensions Act,” Leys argued.
The senior attorney said that this latter category of public officers had their early retirement ages adjusted, consequent on the increase in retirement age for the public officers under that Act.
He added: “Parliament was at liberty to do this because these were offices created by the Civil Service Establishment Act which empowers the minister to create and abolish offices as he sees fit.
“Such an approach could not be accommodated under the Civil Service Establishment Act as these were offices created and established under the Constitution. Section 2(2) of the Amendment Act was enacted to ensure compliance with the fact that these were offices created and established under the Constitution and that it is the Constitution that would have to be amended to deal with these issues.”
Leys is to continue making submissions before the Court of Appeal on Wednesday.
