MOTIVE UNDER SCRUTINY

Two opposition legislators, who sued the Government over a constitutional amendment to increase the retirement age of the director of public prosecutions (DPP) and the auditor general, are questioning the State’s move to appeal the Full Court’s decision if the true purpose of the change was not to keep DPP Paula Llewellyn in office.

“The Government says their purpose in enacting the act was not to extend the term of the incumbent DPP. It was to complete the exercise they started in 2011 and to increase the retirement age applicable to the office. That is what the judgment does. Why then appeal?” King’s Counsel Michael Hylton asked, noting that it was a reasonable question being asked by the public.

The lawmakers have also asked the court to consider why there was a six-year delay in effecting changes that, purportedly, should have taken place from 2017 and why they were effected in a few hours on two days of July 2023, noting that the State has given no valid reason for this.

However, Hylton – the lead counsel for Peter Bunting and Phillip Paulwell, who are the leaders of opposition business in the Senate and the House, respectively – yesterday urged the Court of Appeal to find that the dominant purpose of the act was to allow Llewellyn to continue in the post and that it constituted an improper purpose.

The Government, last year, amended the Constitution, increasing the retirement age of the two public officers from 60 to 65. But following the claim brought by two opposition members, the Full Court, in April, ruled that an amendment was valid but struck down as unconstitutional Section 2 (2) of the amendment, saying that it allowed Llewellyn to choose to continue.

In the appeal brought by the State against the decision, the attorney general has since argued that the Full Court erred in its interpretation of the provision, which they say was to preserve the DPP’s right to early retirement.

The respondents in the matter, which is being heard in the Court of Appeal before a three-judge panel led by Justice Jennifer Straw have, however, brought a counter appeal, asking the court to strike down the amendment and to find that it was done for an improper purpose, that it breached the separation of powers principle and circumvented the constitutionally mandated process.

IGNORED EVIDENCE

Continuing his argument yesterday, Hylton submitted that the Full Court ignored certain evidence presented in determining whether the purpose had been improper. He said the court did not acknowledge the evidence about how quickly the amendment was rushed through Parliament following the unexplained six-year delay.

Noting the series of events in the six months before the amendment, including the second extension, reportedly, sought by the DPP, the letter, and the Public Service Commission’s refusal, Hylton argued that “they did not say all those actions and events were just coincidence”.

“No doubt the act was also for the purpose of extending the age generally, but extending the age of the incumbent DPP was the dominant, driving purpose when the act was pushed through Parliament on those two days at the end of July 2023,” he added.

On the separation of powers principle point, Hylton said that the Full Court did not appreciate or understand the respondents’ submission on the issue and that it was not premised on Section 2(2) of the act.

Like other Westminster-style Commonwealth Caribbean states, where the constitution is the supreme law, he said that in Jamaica, each branch of Government – the executive, legislative, and judiciary – has constitutionally allocated functions and the court has jurisdiction to review and invalidate acts of Parliament.

Hylton argued that Parliament had “arrogated to itself a power that was exercisable under the Constitution only by the executive branch, but which was already expended, given that the DPP was already given an extension.

“The question the Full Court was required to answer was whether Parliament, by effectively granting Llewellyn a second extension, infringed on the powers reserved solely for the executive branch,” Hylton said.

Similarly, he said the Full Court had asked itself the wrong question on the issue of whether the amendment had circumvented the constitutionally mandated process.

“The question is not only whether there is evidence that a risk to the independence of the office exists. It is whether given what has happened in this case, “any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors is precluded”, Hylton submitted.

Meanwhile, King’s Counsel Ransford Braham, in his response on behalf of the State, urged the court not to accept that the amendment breached the separation of powers principle and that it was done for an improper purpose.

He explained that if a law was passed that was not in keeping with the purpose set out by the Constitution, then that would be a breach. But at the same time, he said the court does not have any authority, aside from a breach of the Constitution, to say whether that purpose was proper.

Separation of powers, Braham argued, is between the executive and the judiciary on one hand and the executive and the legislature on the other. Also, he said that it is not an overriding superconstitutional principle and that most constitutions have some overlap among legislative, executive, and judicial functions.

Responding to the appellants’ argument that Parliament had circumvented the process, Braham argued that the entire process was in Parliament’s control, which was given by the Constitution.

“If Parliament exercised the right that it has been given, it cannot be said to be circumventing the process given to the executive that is made clear may be altered by Parliament itself. It would mean that the consultation process would be unamendable.”

King’s Counsel Douglas Leyes, who is representing the DPP, and Hylton will give their replies today.

tanesha.mundle@gleanerjm.com