The legal team for the Opposition People’s National Party’s Phillip Paulwell and Peter Bunting — the respondents in the State’s challenge to the Constitutional Court ruling which struck down a second extension of the tenure of Director of Public Prosecutions (DPP) Paula Llewellyn, King’s Counsel (KC) — in final arguments on Friday urged the Appeal Court to find that the 2023 amendment by Parliament was an overreach of its powers under the constitution.

Constitutional scholar and attorney Michael Hylton, KC, in highlighting two of four cases used by the appellants to argue that Parliament has supremacy in making amendments, said the State’s attorneys had failed to point out one critical difference.

“We say that at first blush these cases appear to support the appellants’ position about the wide, almost unfettered powers Parliament allegedly has. However, the appellants did not point out that those cases have something else in common; they dealt with constitutions that did not have a supremacy law clause. The outcome of those cases… was because they didn’t have an equivalent to our [constitutional supremacy clause],” Hylton told Appeal Court justices Jennifer Straw, Vivene Harris, and Kissock Laing.

“Our Parliament, miladies and milord, is not the master of its own household; its power to make laws is subject to the supremacy of the constitution; the constitution, not the Parliament, is sovereign,” Hylton insisted.

Hylton’s argument is counter to those made by attorney Allan Wood, KC last Monday, day one of the five-day hearing.

Wood, who appeared for the Office of the Attorney General, in addressing the finding of the Full Court which said that the amending Act was “passed for a proper purpose” and was consistent, argued that “The Full Court did find that the amending Act did not alter or impact any of those entrenched provisions, particularly the provisions preserving the independence of the director and insulating her office”.

In 2023 the Government, 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.

On Monday Wood, in noting that Section 96 (1) was “not amended by ordinary legislation”, told the appeal panel, “It was passed as constitutional amendment in accordance with the procedure set out in Section 49 and that, with respect, should be the end of the matter. I should be able to sit down; it is either validly passed or it is not. How can you test what was amended by what was there before? With all respect, it’s an absurdity.”

However, according to Hylton, that reasoning was flawed.

“This entire line of cases which takes us back to mi friend Wood’s day one submission about Parliament and Section 49, that once Parliament follows the steps in Section 49, the court had no role, they are all connected and they are all wrong,” he told the judges.

“We submit that on this issue of the powers of Parliament and the powers of the court, the constitution is supreme, the court does have the power to intervene and strike down. Not only for non-compliance with the strict requirements of Section 49, but also for breach of any of the principles which are part of the constitution, such as separation of powers, and as we have submitted proper purpose reasons,” Hylton declared.

The constitution lays down the procedure for its own amendment (sections 49 and 50). Section 49 of the constitution allows for alteration by act of Parliament passed by both Houses and states sections which may be altered and procedures to be adopted for alterations.

Section 50 provides for special acts of Parliament, that is, acts which may be inconsistent with the Bill of Rights but are not void for inconsistency as they are not literal amendments to the constitution.

The broad view in the debate relating to the supremacy of the constitution versus parliamentary supremacy is that there is no constitutional limitation on the legislative supremacy of Parliament as though the constitution is supreme, it is not immutable and does provide for future alteration. However, Section 48 of the constitution gives Parliament wide powers to make laws for the peace, order and good government of Jamaica. These powers are still subject to the provisions of the constitution.

The 2023 amendment to the constitution to increase the age at which the DPP and the auditor general should proceed on retirement, from 60 to 65, followed on a previous three-year extension in 2020 when Llewellyn turned 60, which would have ended in September last year. But the People’s National Party, 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 a second.

In April, the Full Court — comprising justices Tricia Hutchinson Shelly, Simone Wolfe-Reece, and Sonya Wint Blair — ruled that while the amendment to the Act increasing the retirement age of the DPP from 60 to 65 is constitutional, the second amendment 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”.

Following the Full Court ruling, which sparked a firestorm in legal circles, Llewellyn indicated that she could not carry out her duties for the time being, leading to the appointment of an acting DPP in the person of former Senior Deputy Director Claudette Thompson. That appointment is in force for six months.

On Friday, Justice Straw, in adjourning the marathon hearing, said given the sensitivity of the matter and the urgency, a ruling will be handed down “as early as possible in the new term”.

“We will now have to sit back and consider all the authorities [case law] and submissions to arrive at our judgment in this matter. We understand that it is a sensitive matter and there’s some urgency that is associated with it, so what we intend to do is to say to you, as early as possible in the new term (Michaelmas – September to December). Our registrar will make contact with you as soon as we are able to hand down the judgment,” she said.

“Gentlemen, keep safe, be at peace; peace, order and good government is important,” Justice Straw quipped.