Attorney general cites 17 grounds in appealing court’s ruling on DPP

THE attorney general, the Government’s chief legal advisor, on Tuesday indicated that he has filed its appeal to clear up what is being described as an “inconsistency” created by Friday’s judgment of the Constitutional Court which declared as “unconstitutional” the second extension of the tenure of Director of Public Prosecutions Paula Llewellyn, King’s Counsel.

In the notice of appeal filed on 17 grounds, a copy of which was seen. the appellants contend, among other things, that “the Full Court erred in its interpretation of the new section of the 2023 Act which amended the constitution giving the right to the incumbent DPP to be able to extend her term of office beyond the retirement age”.

In arguing that in “plain and unambiguous language”, the section preserved the right to retire where the incumbent in office had reached the pre-amendment retirement age of 60”, the appellants maintained that the section could not be properly interpreted as giving the incumbent DPP the right to extend her term of office by electing not to retire.

“Any extension or continuation of her term of office occurred by operation of law by the amendment, which increased the retirement age for the holder of the office from 60 to 65,” the appellants said.

The Full Court, it said, was “plainly wrong in all the circumstances” to grant judgment to the claimants and declare the new section “an invalid constitutional amendment”.

The Government last year amended the constitution to increase the age at which the DPP and the auditor general should proceed on retirement from 60 to 65. That amendment followed on a previous three-year extension in 2020 when Llewellyn turned 60 which would have ended in September last year.

The Opposition People’s National Party, in a lawsuit, challenged the extension, arguing that this amendment was unconstitutional and should be struck down on the basis that the DPP had already received one extension in office and should not benefit from a second.

Last Friday, the Full Court, comprising justices Tricia Hutchinson Shelly, Simone Wolfe-Reece and Sonya Wint Blair, ruling on that suit, held that while the amendment to the Act increasing the retirement age of the DPP from 60 to 65 is constitutional, a new provision introduced into the constitution via a second amendment giving the DPP the right to elect to remain in office without any role by the prime minister or the Opposition is “not a valid section and is severed from the constitution because the process remains unchanged for extending the retirement age”. Consequently, the panel said the section is “unconstitutional, null, void, and of no legal effect”.

The ruling which sparked a firestorm in legal circles resulted in Llewellyn late Sunday evening indicating that she could not carry out her duties for the time being, leading to the appointment of an acting director of public prosecutions in the person of former Senior Deputy Director Claudette Thompson on Monday. That appointment is in force for six months.

The appellants, in a further notice and ground of appeal, argued that the Full Court had erred in ruling that Llewellyn could not remain in her position until age 65 even though it had upheld the constitutional amendments which enabled the extension of the retirement ages for the positions to 65 years.

On yet another ground, the appellants argued that “the Full Court was plainly wrong to have concluded that the interpretation to be given to the amending Act was to give the incumbent director of public prosecutions a second extension in office”.

The justice ministry, on Tuesday, in a statement announcing the filing, said: “In response to this conflicting outcome, the Government, represented by the attorney general, has filed an appeal with the Court of Appeal to resolve this inconsistency. The appeal argues for a harmonisation of the retirement provisions, maintaining the intended retirement benefits for all affected public officers as per sections 2 (2) for the DPP and 3 (2) for the auditor general, in alignment with the constitution,” the statement said.

It noted further that the Administration “remains committed to ensuring that statutory and constitutional amendments serve the intended purposes without ambiguity or disadvantage to any public office”.

In 2017, the Government introduced the Pensions (Public Service) Act 2017, initiating a policy shift to extend the retirement age of public officers from 60 to 65. This change was followed by the Constitution (Amendment of Sections 96 (1) and 121 (1)) Act 2023, which specifically adjusted the retirement ages for the DPP and the auditor general from 60 to 65.

Tuesday, lead attorney representing the Opposition in the matter, Michael Hylton, King’s Counsel, “We will be contesting the appeal and will be filing documents in response.”

PNP Member of Parliament Phillip Paulwell, one of two claimants in the suit, speaking further with the newspaper, said: “We are absolutely confident that the judgment of their Lordships was clear, unambiguous and unequivocal. We are already prepared and ready to respond to the appeal.”