Gov't attorney says constitutional amendment gave Llewellyn automatic right to remain in office

Counsel for the attorney general (AG) today argued that the amendment to the Constitution increasing the retirement age for the director of public prosecutions and the auditor general gave Paula Llewellyn an automatic right to remain in the office of DPP until 65.

He argued that once it was accepted that the amendment to section 1 was constitutional and that it was not done for an improper purpose, the DPP had the right to remain in office until 65 without having to do anything further.

“All that she did, in my respectful submission, is for good order to indicate to the Public Service Commission that I am not going to exercise my right to leave for early retirement," attorney for the AG, Allan Wood, KC, said this morning at an appeal hearing in which the Government is challenging the Constitutional Court's ruling in April that resulted in the DPP stepping aside.

Stressing that there was no need for her to indicate she would stay on, Wood added “So it's neither here nor there.”

The Full Court had ruled that the change in the Constitution in July last year to raise the age of retirement for the DPP and the auditor general from 60 to 65 was valid.

The court, however, struck down section 2(2) of the amendment that gave Llewellyn the power to elect to remain on the job, declaring it “unconstitutional”.

The three-judge panel ruled that “the incumbent DPP has already reached the extended retirement age, [which] means that the application of Section 2(2) cannot lead to another extension by way of an election on the part of the incumbent DPP as this is unlawful”.

The DPP reached the age of retirement in 2020 but got a three-year extension, which ended in September 2023.

The judges ruled that the only lawful way to extend Llewellyn's tenure further was by agreement between the prime minister and the leader of the opposition.

But Wood, when questioned by the judges today about the purpose of that section and whether it was a transitional provisional, said that it preserved the right of the incumbent if she wishes to demit office before attaining the age of 65.

“It was a transitional provision to say that the incumbent had the right to leave at 60 and, therefore, if she wishes to leave she can, but that is not a right given to the incumbent to say I am extending my tenure.

“The right to leave is completely different from the right to remain in office or to extend the tenure,” he argued.

Questioned by the judges about what was in place to protect the DPP's right to early retirement and the accompanying benefits, Wood said it was previously provided for in the Pensions Act.

Pressed further by lead judge Jennifer Straw and her colleague, Vivene Harris, about the need then for that provision, Wood said it was inserted so that there would be no perceived conflict between the amending provision in the Constitution and the prior Pensions Act of 2017.

Expounding, he said, “It was to avoid any argument that there was an amendment by implication being effected by the Constitution, overriding the right in the early retirement provision in the Pensions Act. It was simply demonstrating that the rights in the Pensions Act were being preserved.”

Opposition lawmakers Phillip Paulwell and Peter Bunting had initiated the challenge to the amendment to the Constitution, while the attorney general was the respondent in the matter.

Following the ruling, the claimants said that the court's decision meant that Llewellyn would have to leave office immediately while the AG had the opposite view.

The AG subsequently appealed claiming there were errors in the judgment.

Attorney-at-law Michael Hylton, KC, and Kevin Powell are representing the Opposition lawmakers. Attorney-at-law Douglas Leys is representing the DPP who is an interested party in the appeal.

- Tanesha Mundle

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