The move by the Government to amend the Constitution to extend the tenure of Director of Public Prosecutions Paula Llewellyn is unconstitutional.
The decision was handed down on Friday by the Full Court of the Supreme Court, which comprised three judges — Justice Sonya Wint-Blair, Justice Simone Wolfe-Reece, and Justice Tricia Hutchinson Shelly.
In an immediate reaction, Justice Minister Delroy Chuck said the Government will appeal the judgment.
The Full Court said the only lawful way to extend the current tenure of Llewellyn is by agreement between the Prime Minister of Jamaica and the Leader of Opposition.
In July 2023, the Constitution was amended to move the retirement ages of the DPP and the auditor general from 60 to 65.
The Opposition People’s National Party (PNP) challenged the legality of the constitutional amendments.
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 facts, in brief, are that in July 2023, the Act was passed after a majority vote in both Houses of Parliament.
The Act now contains Sections 2 (1), which increases the age of retirement of the DPP to 65, and section 2 (2) is a new section which gives the right of the DPP to elect to remain in office, despite the role of the prime minister and Opposition leader regarding an extension of tenure.
The DPP was first granted an extension in September of 2020 when she reached the age of 60, after requesting an extension in January of 2020.
A second extension was sought by her in February of 2023, according to Wint-Blair, but it was initially declined by the Public Service Commission (PSC) in May of 2023.
The PSC then cited constitutional limitations on the grant of a second extension, as well as “the refusal of the Prime Minister (Andrew Holness) to grant the extension.”
Said Wint-Blair: “Following the PSC’s decision, the Act was passed.”
In response, Llewellyn 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,” the judge said, adding that the governor-general made the appointment on the recommendation of the PSC.
Wint-Blair said Sections 2 (1) of the Act is constitutional. It amended the Constitution of Jamaica relative to “the retirement age” of the DPP.
“A new provision to introduce into the Constitution by Sections 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,” said Wint-Blair.
“Sections 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,” said Wint-Blair.
Therefore, the section, as ruled by the Full Court, is “unconstitutional, null, void, and of no legal effect”.
In elaborating on the Full Court’s decision, the judge said the current 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 the way of an election on the part of the incumbent DPP, as this is unlawful,” said Wint-Blair.
She said Section 2 (1) of the Act, as currently formulated, has raised the retirement age without addressing the extension of tenure in office.
“Consequently, any extension of the DPP’s tenure under this section must adhere to the same process as previously outlined in the same Section 96 (1) of the Constitution, which remains unchanged by the Act,” Wint-Blair stated.
She added: “The only lawful method to extend the DPP’s tenure remains by way of an agreement between the Prime Minister and the Opposition Leader.
“Given these considerations, there is no necessity to delve into the application of Section 2 (1), nor does it require reading down,” the judge said.
Section 2 (2) of the Act, according to Wint-Blair, is the “offending provision”, and she said the court holds that it is “incompatible with the Supremacy Clause”.
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.”
The claimants for the PNP—Leader of Opposition Business in the Senate and Leader of Opposition current 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.
They further argue that the amendments were done in breach of the separation of powers principle.
The Opposition was represented by King’s Counsel and noted constitutional lawyer, Michael Hyton, and attorney Mikhail Williams.
The attorney general, who was named as the defendant in the case, was represented by the following attorneys: Senator Ransford Braham, KC; Allan Wood, KC; Neco Pagon, and Kathryn Williams.
Since the amendments were passed in late July last year, Government officials have questioned the difficulty the PNP had with allowing the retirement age of the DPP to be increased.
In fact, two Cabinet ministers—Robert Morgan and Delroy Chuck—had repeatedly questioned the motive behind the PNP’s constitutional motion, arguing that it references only the DPP, when the amendments also increased the retirement age of the auditor general to 65 years.
The Andrew Holness Administration maintained that it acted lawfully in amending the Constitution to facilitate the increase of the retirement age for both public servants.
