Friday’s indication by Justice Minister Delroy Chuck that the Government intends to seek a stay of the ruling by the Constitutional Court which effectively ended the tenure of Director of Public Prosecutions (DPP) Paula Llewellyn, King’s Counsel is being branded another classic legal misstep by a stalwart in judicial circles.

“If the court has ruled that the extension of her appointment is unlawful and declared it to that effect, that is the legal position and therefore she is no longer in the post. You cannot get a stay of execution of a decision that is declaratory,” the legal luminary told the
Jamaica Observer.

“When a court makes a declaratory order what it is doing is declaring what the law is. The court isn’t saying that you must do anything, the court is declaring the law in the judgment and it is supposed to be adhered to, so there is no stay pending appeal. So she is no longer DPP,” the individual pointed out adding, “the court’s decision cannot be put in some type of suspension pending appeal because all the court has done is to declare the law. So I don’t know why Delroy Chuck is saying he is applying for a stay”.

Llewellyn, who began her tenure in 2008, on reaching 60 years of age requested an extension in January 2020. Prime Minister Andrew Holness initially proposed a five-year extension; however, the governor general granted a three-year extension, which expired September last year. The DPP sought another extension, which was declined by the Public Service Commission (PSC) on the grounds of constitutional limitations.

Following that decision by the PSC, the Government, in July last year, through a majority vote of both houses of Parliament, pushed through amendments to sections 96(1) and 121(1)) of the constitution. The amendments, through a new section, 2(1), increased the age of retirement of the DPP from 60 to 65 and added a new section 2(2) giving the right to the DPP to elect to remain in office despite the role of the prime minister and opposition leader assigned by the constitution regarding an extension of tenure.

The Opposition People’s National Party (PNP) challenged the second extension in a lawsuit.

On Friday, the full court comprising justices Tricia Hutchinson Shelly, Simone Wolfe-Reece and Sonya Wint Blair in the ruling said 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”.

In outlining the reasons for its decisions the court said the “incumbent DPP has already reached the extended retirement age” which means the application of the new section “cannot lead to another extension in office by way of an election on the part of the incumbent DPP as this is unlawful”.

“Section 2(1) of the Act, as currently formulated, has raised the retirement age without addressing the extension of tenure in office. Consequently, any extension of the DPP’s tenure under this section must adhere to the same process outlined in the previous section 96(1) of the constitution, which remains unchanged by the Act,” the full court stated.

It added that “the only lawful method to extend the DPP’s tenure remains by way of an agreement between the prime minister and the opposition leader”.

On Friday the justice minister, in a statement after the ruling, said “The Government of Jamaica takes note of the decision of the Constitutional Court in the case of Phillip Paulwell and the Attorney General of Jamaica that the Act extending the retirement age of the DPP from age 60 to 65 is constitutional”.

He said, however, that the ruling by the court that “the application of the director of public prosecutions to extend her tenure, provided under the Act to age 65 has been ruled unlawful” was not accepted by the Government.

“The Government of Jamaica does not agree with this part of the ruling of the Constitutional Court and will instruct its attorneys to ask for a stay of execution and immediately appeal the ruling,” Chuck said.

The Office of the Director of Public Prosecutions and its functions are established by the Jamaican Constitution. An individual cannot qualify to hold or act in the office of director of public prosecutions unless he/she is qualified for appointment as a judge of the Supreme Court.

Responding to the court ruling, Opposition Leader Mark Golding insisted that the post of DPP is vacant and urged the PSC to move swiftly in recommending someone to act in the position.

“The legal advice that we have received today is that this is a declaratory judgment that the Constitutional Court has made and there is no jurisdiction to grant a stay of a declaratory judgment. You can appeal it but it stands as a declaration of what the law is, unless and until a higher court says otherwise. Our position is that Ms Llewellyn is no longer the DPP and has in fact not been the DPP since her 63rd birthday in September last year,” Golding said.

He noted that a provision covers the rulings she has made to date but said that since the ruling has now been made she can no longer perform functions as a DPP and a new DPP should be appointed.