Government will be pursuing an appeal
Dear Editor,
On July 31, 2023, Jamaica’s Parliament passed the Constitution [Amendment of Sections 96(1) and 121(1)] Act (the amending Act) to increase the age of retirement for two senior members of the public service; namely, the director of public prosecutions (DPP) and the auditor general (Au-G). By virtue of Sections 2(1) and 3 (1) of the amending Act, the retirement age of the DPP and the Au-G was increased to 65 years.
The amending Act also, by Section 2(2), conferred on the DPP, who had attained the age of 60 at the date of commencement of the amending Act, the right to retire by giving the governor general a memorandum in writing electing to retire at any time after attaining the age of 60 years. Section 2(2) preserved any accrued right of the holder of the office to retire at age 60. There is no provision in the amending Act giving an election to remain in office.
The claimants challenged the constitutionality of the amending Act and contended that it was enacted for an improper purpose, was in breach of the separation of powers doctrine, and circumvented the constitutionally mandated process for extending the tenure of the DPP.
By judgment issued today April 19, 2024, the Full Court found that the amendment to the constitution to extend the retirement age of the DPP from 60 to 65 is valid and constitutional. However, the court struck down Section 2(2) which conferred the option on the incumbent DPP, having attained the age of 60, to elect to retire before the age of 65.
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 court has confirmed that by Section 2(1) of the amending Act, the age of retirement has been increased from 60 to 65. 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.
Given the divergence of interpretation and given that judgment was given for the claimants, the Government will be pursuing an appeal with respect to the striking down of Section 2(2).
Attorney General’s Chambers
