Editorial | Constitution kerfuffle

No one, on the face of it, would reasonably be opposed to bringing the retirement age of the director of public prosecutions (DPP) and the auditor general (AuG) in line with that of other employees in the public sector.

There is good reason, however, to be offended if this is accomplished with a Nicodemus-style amendment of the constitution, the country’s fundamental law, which ought to be treated with a respect bordering on sacredness. The constitution oughtn’t to be trifled with.

It is understandable in the circumstances that some people, including this newspaper, are discomfited by the government’s approach to making the changes with respect to the DPP and the AuG. Form, at times, is as critical as substance.

This issue arises from the Holness administration’s dizzying dash in the House of Representatives on Tuesday to amend sections 96 and 121 of Jamaica’s Constitution, which deal with the age at which DPP and the auditor general are required to demit office unless they receive special dispensations. That age is currently 60.

The incumbent DPP, Paula Llewellyn, will be 63 in September. In keeping with the constitutional provisions, she was in 2021 allowed a three-year contract to continue beyond her mandatory retirement age. Given the existing regime, the auditor general, Pamela Monroe Ellis, could continue in office for another decade or more.

CONSTITUTIONAL POSITIONS

Both offices are entrenched constitutional positions. They can’t be removed, or the powers conferred on them can’t be changed, unless the bills to amend the respective clauses – 94 and 120 – sit on the table of the House for three months before debate, and another three months after the debate before being voted upon. Further, the bills would have to be passed by two-third majorities in both chambers of Parliament, which, given the configuration of the Senate, would mean attracting the vote of at least one member of the Opposition if ballots were cast along party lines.

The same constraint doesn’t affect sections 96 and 121. They can be amended by majority vote of all members of either house.

Generally, people got wind of the proposed amendments on Monday. The bills were brought to Parliament on Tuesday, hurried through all their stages and passed on the same afternoon. The same thing is expected to happen in the Senate today.

The justice minister, Delroy Chuck, explained that amendments were in keeping with the new pension law that came into force in 2017. It gradually raised the retirement age of public sector employees from 60 to 65, although in the case of the DPP and the AG, they, under special arrangements, be allowed to go on to age 70.

“It was the intention of the government to amend the constitution to give effect to the change in the age of retirement for officers, so as to extend the increase in retirement age to both the auditor general and the director of public prosecutions,” Mr Chuck said.

That, on its face, is not an unreasonable position. But the speed with which this issue was handled is far from this newspaper’s preference for dealing with a constitutional matter, especially in the absence of extreme urgency.

The political Opposition perceives in the amendments a scheme to further extend the tenure of the incumbent DPP, which they oppose.

UNFORTUNATE

It is unfortunate that discussion of the merit, or otherwise, of the amendment is now being coloured by names and personalities. For there are other issues and serious principles around the reform of both offices that are worthy of debate, including, of course, the tenure of the office-holders.

Both offices are exceedingly powerful, especially Ms Llewellyn’s, who has the authority not only to undertake criminal prosecutions, but to take over any begun by another body, as well as to discontinue any criminal matter before a court “at any stage before judgment is delivered”.

Additionally, the powers conferred on the DPP “shall not be subject to the direction or control of any other person or authority”.

There is a logic to these extensive powers. The framers aimed to insulate the DPP (and to a lesser extent the AuG) against encroachment by the Executive. Indeed, these powers are found, to varying degrees, in corresponding offices in other jurisdictions.

There is an emerging trend, however, of limited tenure, rather than occupancy of such posts. There is also a move to greater transparency.

In England and Wales, for example, the DPP’s tenure is five years, but is renewable. The office also has an advisory board and is also subject to the oversight of an inspectorate that reviews citizens’ complaints. In Australia the appointment of the DPP at the federal level is for seven years. In New Zealand the term of the auditor general is the same duration.

It would have been good if this week’s amendments were in the context of the work of the existing constitutional review committee. The committee, it appears, was in formal ignorance of the development. Clearly, there is much to fix in the constitutional reform process.