‘Never felt targeted’

Director of Public Prosecutions (DPP) Paula Llewellyn has declared she never felt targeted by the parliamentary opposition, which challenged her continuation in office. Instead, she asserted that her 40-year career has been shaped by challenges from “every political colour”.

“I’ve never felt targeted by anybody because I know the position that I hold is a highly exposed one as a public officer and it must be undergirded by humility; but you have to be resilient,” she told The Gleaner yesterday, hours after the Court of Appeal overturned a lower court’s ruling that had thrown her tenure into uncertainty.

The decision clears the way for Llewellyn to resume duties as the country’s chief prosecutor.

“I have been doing this for 40 years and I’ve had to deal with headwinds and challenges from every source and from every political colour. It matters not, because at the end of the day, you have a code of conduct by which you live and you have a duty,” she told The Gleaner, in reaction to the highly anticipated decision of the country’s second-highest court.

She added: “I have never in my entire career considered myself to be a victim to anything or anybody. Roll with the punches. Because if you don’t have these characteristics, you cannot do this job. And at the end of the day, you are obligated to continue to be fair.”

Llewellyn, Jamaica’s first female DPP and the longest serving, acknowledged that the legal challenge brought by two lawmakers from the Opposition People’s National Party (PNP) was a “major headwind”, particularly for her staff, whom she said were left “discombobulated at my withdrawal and the way it came about”.

She said she will be retiring in September 2025.

OPPOSITION OBJECTED

Llewellyn, who reached the original retirement age of 60 in 2020, had received a three-year extension, which was due to expire on her 63rd birthday in September 2023. In May 2023, Prime Minister Andrew Holness, saying he was acting on legal advice, rejected Llewellyn’s request for a second extension, according to court documents.

However, two months later, in July 2023, the Government rushed through a constitutional amendment in Parliament that raised the retirement age for the DPP and auditor general from 60 to 65. The changes took effect before Llewellyn’s first extension expired.

The lack of public consultation and the timing of the changes drew criticism, with Opposition parliamentarians Phillip Paulwell and Peter Bunting challenging the amendment in court. They alleged that the amendment was designed specifically to retain Llewellyn in office, breaching constitutional principles and bypassing the mandated consultation process. The opposition party did not support Llewellyn’s extension in 2020.

The Government rejected the lawmakers’ arguments, adding that it was a settled policy since 2017 to harmonise the retirement ages for the two officeholders with the general public service.

There were two key parts to the constitutional amendment – Section 2 (1), which raised the age of retirement for the DPP and auditor general from 60 to 65 and Section 2(2) which allowed the incumbent Llewellyn to elect to retire.

While the Constitutional Court upheld the validity of Section 2(1) in April, it struck down Section 2(2), creating ambiguity over Llewellyn’s status as the PNP lawmakers insisted that it meant Llewellyn was to leave immediately. The Government disagreed and appealed. The situation also prompted Llewellyn to temporarily step aside, with Senior Deputy DPP Claudette Thompson acting in her role.

That court, comprising Justices Sonya Wint-Blair, Simone Wolfe-Reece, and Justice Tricia Hutchinson Shelly, argued that Section 2(1) did not apply to Llewellyn and that Section 2(2) was “unconstitutional” because it gave Llewellyn powers she did not have by giving her the choice of staying and that she had already benefited from an extension.

The Court of Appeal agreed that Section 2(1) was a valid amendment of the Constitution. But it said the three judges were wrong to conclude that Section 2(2) was unlawful and should be struck down and that the test used to make that determination was “problematic” and “appeared to be a misunderstanding of the law”.

“Section 2 (2) is a transitional provision concerning the incumbent DPP and the words ‘elect to retire ‘ should be construed to mean to elect to apply for early retirement. That is, before attaining the new retirement age of 65 years,” read Justice Straw, one of the Appeal Court’s most senior judges.

“Upon promulgation of the amending Act, the incumbent DPP automatically benefited from the increased retirement age by virtue of Section 2 (1). Section 2(2) did not add to that benefit and is, therefore, not unconstitutional or inconsistent with 2(1),” added Straw, who was reading from a press summary.

The written judgment was not available up to press time.

‘ISSUE POLITICISED’

The Government welcomed yesterday’s decision.

“We were always confident that our actions were not only lawful but good policy and in line with what obtains in several modern jurisdictions. It is very unfortunate that this issue was politicised,” said Information Minister Dr Dana Morris Dixon in a statement.

She commended the legal team of King’s Counsel (KC) Allan Wood, Ransford Braham, Neco Pagan and Kathryn Williams.

Attorney Kevin Powell, who represented the opposition lawmakers, told The Gleaner that his clients would review the judgment before deciding on further action. Michael Hylton KC, Timera Mason and Duane Allen also represented the politicians.

Like they did in the lower court, Bunting and Paulwell failed to convince the appeal court that the amendment was done for an improper purpose.

The Opposition has expressed respect for the Court of Appeal’s ruling but criticised the Government’s lack of consultation and rushed legislative process, describing it as harmful to good governance.

“The Government’s enactment of constitutional legislation without any consultation with the Opposition on a matter concerning a particularly sensitive office, coupled with the unprecedented haste to pass it through Parliament without proper review or any prepared debate, amounted to a pernicious abuse of power, inimical to good governance in a constitutional democracy,” said Senator Donna Scott-Mottley, opposition spokesperson on justice.

The Government lost an argument that the Constitutional Court ruled on Section 2(2) when the parties did not make any submissions on that aspect. The appeal court said the “parties were given the opportunity to make oral and written submissions”.

Bunting and Paulwell have been ordered to pay the Government’s legal fees, though the court has opened the door for that to be challenged.

Justices Straw, Kissock Laing, and Vivene Harris heard the appeal in June, and had initially indicated that they would try to hand down their decision earlier in the term. Instead, it came on the very last day, leaving Llewellyn almost nine months left in a tenure that started in 2008.

King’s Counsel Douglas Leys, who represented Llewellyn as an interested party in the appeal, said the process for Llewellyn to head back to her office will start when the Court of Appeal issues a certificate of the results of the appeal, which will then go the Public Service Commission for processing.

editorial@gleanerjm.com