PNP files suit challenging changes to DPP, AuG retirement age

A lawsuit was filed in the Supreme Court yesterday by two executive members of the People’s National Party who are contending that the amendment last month to the Jamaican Constitution which will allow Director of Public Prosecutions Paula Llewellyn to remain in office for an extra two years was done for an improper purpose.

They are seeking declarations that the amendment is unconstitutional, null and void.

The amendment now moves the retirement age of the Director of Public Prosecutions and the Auditor General from 60 to 65.

Llewellyn, who got a three-year extension in 2020 when she was 60 can now remain on the job until she is 65.

The claimants, Member of Parliament Phillip Paulwell and Senator Peter Bunting, are seeking a declaration that DPP Paula Llewellyn should not be allowed to remain in office beyond September when her 2020 extension ends.

>> They are seeking declarations that Section 2 of the Constitution (Amendment of sections 96(1) and 121(1) Act 2023 was enacted for an improper purpose and is therefore inconsistent with the Constitution, null and void. A declaration is being sought that Section 2 of the Act would have the effect of circumventing, undermining and/or contradicting the constitutionally mandated process for the extension of the term of office of a DPP, and is therefore inconsistent with the Constitution, null and void. The claimants are seeking a declaration that Zection 2 of the Act was enacted in breach of the separation of powers principle and is therefore inconsistent with the Constitution, null and void.

In the alternative or in furtherance to the declarations or consequent to the grant of the declarations, the claimants are seeking an order that section 2(1) of the Act be read and construed as not applying to a person who is the DPP as at the date of commencement of the Act and that section 2 ( 2) be struck out.

Leader of the Parliamentary Opposition Mark Golding has supported the claim in his affidavit of urgency filed in the Supreme Court. He has described the claim to be of significant national importance. He is asking the court to strike down provisions of the Act which extend the retirement age of the DPP.

Golding stated that the claimants intend to argue that the Act breaches the provision of the Constitution because it breaches the separation of powers principle, circumvents the constitutionally prescribed procedure for the extension of the tenure of the sitting DPP and is the exercise of a constitutional power for an improper purpose.

“The incumbent Director of Public Prosecutions will attain the age of63 in September 2023 and any extension beyond that date would be pursuant to the challenged provisions of the Act. While the Act is in force and this claim is pending, there will therefore be considerable uncertainty within and outside the Office of the Director of Public Prosecutions with heightened instability in what is a critical part of the criminal justice system,” Golding emphasised. He described the matter as urgent and called for the earliest possible determination of the issues.

“I am aware that the term of office of the incumbent Director of Public Prosecutions would have come to an end in September 2023. I am advised by my attorneys-at-law and verily believe that the government had no power to extend it. I believe that in those circumstances, the Government has acted unconstitutionally and for an improper purpose,”Bunting, leader of Opposition business in the Senate said in his affidavit.

GG INFORMED OF OBJECTIONS

Bunting said prior to the passing of the Bill in the Senate, the claimants in objection to the Bill had written to the Governor General and the Attorney General, “informing them of their objection to the Bill and requesting an undertaking not to assent to the Bill or bring into operation the constitutional amendments that relate to the Director of Public Prosecutions”.

He said in his affidavit that when the Bill was being debated on July 28, Opposition Senator Lambert Brown proposed amendments to the Bill so that it would not come into effect until January 2024 and that it would not apply to the incumbent office holders. He said the amendments were rejected by the majority vote of the Government Senators.

The Governor General gave his assent to the Act on July 31 and it was gazetted.

Paulwell, who is leader of Opposition business in the House of Representatives, said in his affidavit that in all his years in Parliament, he had never seen a Bill to amend the Constitution passed” in this way.” He said he participated in the enactment of multiple Bills that resulted in amendments to the Constitution.

“In every case, all Members of Parliament and the public had prior notice of the intention to table the relevant bills, and there was consultation and an opportunity to comment on the bills,” Paulwell said, referring to the fact that it was not done in this case.

Minister of Justice Delroy Chuck said he had the opportunity to read the affidavit supporting the claim and was shocked that persons could be directing such opposition and vitriol against the DPP.

Chuck said the claim was mainly to prevent the DPP from exercising her opportunity to go to age 65. He said it should be noted that Brown had said in the Senate that he would have supported the Bill if the commencement date was January 2024.

The Attorney General is the defendant in the suit which was filed by King’s Counsel Michael Hylton of the law firm Hylton Powell.

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