Why only the DPP?
The People’s National Party’s motive for targeting Director of Public Prosecutions (DPP) Paula Llewellyn in its legal challenge to a constitutional amendment that increased the retirement age of both the DPP and the auditor general was raised on Wednesday as the matter continued in the Supreme Court.
“You cannot remove the auditor general from office unless certain procedures are followed, similar to the DPP. The unconstitutionality applies only to the DPP, according to my friends,” King’s Counsel Ransford Braham said in reference to the lawyers representing the PNP.
Braham is one of the attorneys representing the Government in the lawsuit filed by PNP Member of Parliament Phillip Paulwell and Opposition Senator Peter Bunting.
The constitutional amendment increased the retirement age of both DPP Llewellyn and Auditor General Pamela Monroe Ellis from 60 to 65. This is the second extension for Llewellyn who would have retired in September at age 63, prior to the adjustment. The first extension was done in 2020 when she turned 60.
The PNP, however, has been adamant that Llewellyn should not have received an extension beyond September, when the 2020 extension ended, and is seeking to have the amendment struck out as unconstitutional and null and void.
The PNP feels that the move to extend the DPP’s tenure would circumvent, undermine and/or contradict the constitutionally mandated process.
On Wednesday, Braham argued that the actual legislation may not be defeated simply by applying the separation of powers principle.
“If the constitution modifies the separation of powers principle, the court would have no choice but to enforce the legislation. Even if the separation of powers is touched in the general sense, once the constitution permits it, that is the end of the matter,” Braham said before giving what he described as an “outrageous example”.
“If it is that Parliament should amend the constitution and say that all the children of Braham should be a part of the Supreme Court, regardless of qualifications, that would be contrary to the separation of powers. If the constitution expressly states this, then Your Ladyship would not be empowered to apply a supernova principle of the separation of powers,” Braham argued before the panel of judges — Sonya Wint, Simone Wolfe Reece and Tricia Hutchinson Shelly — presiding over the proceedings.
“I use that outrageous example to show, in the context of this case, that once the constitution speaks, that is the end of it. Section 96, subsection 1 of the constitution is unentrenched. Section 96, subsection 1B, that gives the executive a role, is capable by itself of amendment without more — that is to say, a simple majority of the members of the House and the Senate. If that procedure were to be followed and the section removed the role of the governor general, the prime minister, and the leader of Opposition, the constitution permits it,” he said.
“As the judge said in giving a judgment of a South African constitutional court,” Braham added, ‘If the language used by the lawgiver is ignored in favour of a general resolve to values [then] the result is not interpretation, but divination’ “.
In addition to Braham, the Government is being represented by Allan Wood, King’s Counsel; Neco Pagon; and Kathryn Williams.
The attorneys representing the PNP are Michael Hylton, King’s Counsel; Kevin Powell; Duane Allen; and Timera Mason.