PEOPLE’S National Party (PNP) Member Parliament Phillip Paulwell — one of two claimants in the suit which resulted in Friday’s ruling by the Constitutional Court truncating the tenure of the island’s chief prosecutor Paula Llewellyn, King’s Counsel — says the blame is to be laid squarely at the feet of the Government for disregarding the State’s own rule book.

Addressing journalists from the steps of the Supreme Court building in downtown Kingston Friday following the ruling, Paulwell said, “We have always said that this was not about Ms Llewellyn and more about our fundamental belief and respect for the constitution. It is also an important statement on governance. A lot of these things can be avoided if there is respect for the Opposition in Parliament. This matter could have been dealt with by a conversation between 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.”

The full court comprising justices Tricia Hutchinson Shelly, Simone Wolfe-Reece and Sonya Wint Blair held that while the amendment to the Act increasing the retirement age of the DPP from 60 to 65 is constitutional, a new provision introduced into the constitution via a second amendment, giving the DPP the right to elect to remain in office without any role by the prime minister or the Opposition is “not a valid section and is severed from the constitution because the process remains unchanged for extending the retirement age”. Consequently, the panel said the section is “unconstitutional, null, void, and of no legal effect”.

In outlining the reasons for its decisions the court said the “incumbent DPP has already reached the extended retirement age”, which means the application of the new section “cannot lead to another extension in office by way of an election on the part of the incumbent DPP as this is unlawful”.

“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 outlined in the previous Section 96 (1) of the constitution, which remains unchanged by the Act,” the full court stated.

It 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”.

Paulwell — in declaring that “the ruling was a good one” — when asked whether the Opposition would have acquiesced if it was consulted, would only say, “The way a country is run is by people recognising the roles and positions of each other and sometimes these matters are settled by the leaders in a room — and that is how a mature democracy operates. We shouldn’t have to be in Parliament upon being summoned to pass a law without the requisite respect and consultation being done.”

PAULWELL… a lot of these things can be avoided if there is respect for the Opposition in Parliament

On Friday, lead attorney representing the Opposition in the matter Michael Hylton, King’s Counsel, commenting on the ruling insisted that there was no personal vendetta against the veteran prosecutor.

“When we started our submissions in this case, the first thing that we said is that the case is not about Ms Llewellyn, it’s not about how she did or didn’t do, it’s not even really about the extension of tenure. The case is about the rule of law, about establishing a principle that the same laws apply to everybody and that the constitution is to be respected,” he stated.

“We are pleased with the ruling. What it is effectively saying is that the constitution requires that everybody is to be treated the same way,” Hylton said, noting that Llewellyn would have to “step away from office with immediate effect”.

In a stellar career marked by a series of firsts, Llewellyn, a career prosecutor, was appointed director of public prosecutions (DPP) in March 2008 — the first woman to hold the position. Unlike previous DPPs (who had been appointed simply on the recommendation of the prime minister) she had to apply through a competitive selection process administered by the Public Service Commission. She was the first woman to act in the position of director in 1999, and in 2003 became the first female to be appointed in the position of senior deputy director of public prosecutions.

On reaching 60 years of age Llewellyn requested an extension in January 2020. Prime Minister Andrew Holness initially proposed a five-year extension, however the governor general granted a three-year extension which expired September last year. The DPP sought another extension, which was declined by the Public Service Commission (PSC) on the grounds of constitutional limitations.

Following that decision by the PSC the Government, in July last year, through a majority vote of both Houses of Parliament, pushed through amendments to sections 96 (1) and 121 (1) of the constitution. The amendments, through a new section, 2 (1), increased the age of retirement of the DPP from 60 to 65 and added a new Section 2 (2) giving the right to the DPP to elect to remain in office despite the role of the prime minister and opposition leader assigned by the constitution regarding an extension of tenure.

The PNP, in the lawsuit, challenged the extension, arguing that the amendment was unconstitutional and should be struck down on the basis that the DPP had already received one extension in office and should not benefit from the Act which sought to grant a second extension. According to the PNP, through the claimants, Llewellyn would have benefited from “a de facto extension in a manner not contemplated by the constitution”. In addition, they contended that 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.