The attorney representing Director of Public Prosecutions (DPP) Paula Llewellyn, King’s Counsel in the State’s appeal of the Constitutional Court’s ruling on the extension of her tenure on Tuesday argued that the Full Court “fell into error” through “a fatal omission” in aspects of its decision in April this year.

Leveraging his arguments against the 2017 introduction of the Pensions (Public Service) Act
— extending the retirement age of public officers from 60 to 65 which was followed by the Constitution (Amendment of sections 96 (1) and 121 (1)) Act 2023, to adjust the retirement ages for the DPP and the auditor general
— King’s Counsel Douglas Leys argued that “there is no provision under this Act for the DPP or the auditor general” because they are constitutional officers and as such their benefits had to be treated differently from that of ordinary civil servants.

“So, we have the vast majority of public servants sheltered by the provisions of the new Act and out in the cold are these two public officers created and established by the Constitution and especially the DPP, who is pre-eminent amongst all public servants, there is no benefit for her. So, we submit that this was a major hurdle for Parliament, a kind of roadblock in how do we provide the continued right of these two public officers to enjoy their early retirement benefit,” Leys stated.

According to Leys, that the Full Court did not consider the clear implications of the Pensions Act and the impact on the DPP was “mystifying”.

“It was hidden in plain sight, and it is really mystifying how the Full Court missed the opportunity, given the exhaustive analysis they went into, in taking down the legislation because certainly, if you are going strike it down then it has to be factored in the equation. There is a fatal omission there by the court and it is really mystifying. It leaves one to wonder what were they thinking?” Leys said, adding that his arguments were to “telescope the issues” as viewed by the legal team for the court’s consideration.

According to Leys, “there is nothing unconstitutional” about the amendment dismissed by the court.

“If in fact what it was doing was synchronising these provisions, it was perfect symmetry,” he declared.

Earlier Allan Wood, KC, the attorney appearing for the Office of the Attorney General, for the second time argued that there is no legal requirement for “agreement” between the prime minister and the leader of the opposition to extend the tenure of the DPP, contrary to the declarations of the Constitutional Court.

The Full Court had held that a new provision introduced into the constitution, via a second amendment, giving the DPP the right to elect to remain in office is “not a valid section and is severed from the constitution because the process remains unchanged for extending the retirement age”.

According to the Full Court, the section is “unconstitutional, null, void and of no legal effect”. It further said “the only lawful method to extend the DPP’s tenure remains by way of an agreement between the prime minister and the opposition leader”.

Taking to the floor on the second day of the appeal
— which is being heard by justices Christine Straw, Vivene Harris, and Kissock Laing
— Wood insisted that, “in the scheme for consultation [set out in the law] there is no requirement for the prime minister and the leader of the opposition to come to agreement”.

The consultation process is set out at Section 32 (5) of the 2023 Act which amended sections 96 (1) and 121 (1) of the Jamaican Constitution, giving the right to the incumbent DPP to be able to extend her term of office beyond the retirement age of 60 to 65 says, “where the governor general is directed to exercise any function on the recommendation of the prime minister after consultation with the leader of the opposition, the following steps shall be taken:

a) the prime minister shall consult the leader of the opposition and thereafter tender his recommendation to the governor general.

b) The governor general shall then inform the leader of the opposition of his recommendation and if the leader of the opposition confirms, the governor general shall act in accordance with such recommendation.

c) If the leader of the opposition does not confer with the recommendation the governor general shall so inform the prime minister.

d) The prime minister shall then advise the governor general and the governor general shall act in accordance with that advice.

Said Wood, “So, in the scheme for consultation that is set out in Section 32 (5) there is no requirement for the prime minister and the leader of the opposition to come to agreement. So, the question arises as to whether section 96 (1) b was altering that process to require agreement in that peculiar circumstance”.

“I return to the point that section 96 (1) b is ambiguous as to who is being referred to when it says ‘agreed between them’ and one could therefore construe that section to conform with subsection 5 so that the agreement that is being referred to there is not the agreement with the prime minister and the leader of the opposition but that agreement of the DPP and the prime minister who is making the recommendation for continuation in office,” the veteran attorney contended.

In the meantime, addressing correspondence that passed from the DPP to the Public Services Commission (PSC) following the enactment of the amendment Wood insisted that Llewellyn “was not seeking an extension”.

“She clearly understood that her tenure had been extended by the amendment and that was clear from the opening paragraph of her letter. The PSC in their letter of response appeared to have been treating her letter as a request; they said ‘I am to advise further to the amendment of Section 96 (1) effective 31 July, the PSC reviewed your letter and agreed your request to continue’,” the attorney contended.

Continuing he said, “She made no such request, she clearly understood that she had the right to continue by virtue of Section 96 (1), where she says ‘in light of the new arrangement and my previous expression of interest to continue to contribute to the highest level, I hereby elect to remain in the post of DPP’.”

Asked by Justice Laing whether “the bigger point” wasn’t that regardless of how the effect of the amendment was construed by the DPP, a mere reading of the letter and the response, it could be seen ‘how there might have been some confusion’ Wood said, “Yes, I agree with you; the bigger picture is that her tenure was extended by the amendment”.

Llewellyn, who began her tenure in 2008, on reaching 60 years of age 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 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 Opposition People’s National Party challenged the second extension in a lawsuit.

The matter resumes today at 9:30 when Leys will continue his arguments.