The Constitutional Court ruling on Friday in relation to the extension of the tenure of Director of Public Prosecutions (DPP) Paula Llewellyn is the latest in a string of judicial slap downs for Prime Minister Andrew Holness and his Administration.

The development has triggered speculation in political and law circles about the quality of the legal advice being given to the prime minister.

Holness started chalking up losses in the nation’s courts nearly a decade ago, in 2015. As Opposition leader in 2013, he had used unsigned letters of resignation to remove Dr Christopher Tufton and Arthur Williams from the Senate, replacing them with Ruel Reid and Dr Nigel Clarke. Williams, once a confidant of Holness, took the matter to court and asked the court to declare whether it was legal for Holness to use an undated letter of resignation to revoke his Senate appointment. On February 6, 2015 the Constitutional Court ruled in his favour, declaring that Holness had acted unlawfully. The court declared the letters null and void.

The court further declared that by requesting and procuring unsigned letters of resignation and authorisation to use them to remove senators, Holness had acted contrary to public policy and inconsistent with the constitution.

While speaking during a church service the following day on February 7, 2015, Holness described the situation in which the Jamaica Labour Party (JLP) found itself as “a regrettable embarrassment” and apologised “unreservedly” to Williams and Tufton.

“It is important to acknowledge that if I have done something wrong, or my action has been declared wrong, then I have a duty to apologise to those I wronged,” Holness said during his address to the congregation at Boulevard Baptist Church in St Andrew.

“And so today, I do so unreservedly apologise to my colleagues and friends, Arthur and Chris, and should it be shown to me that I need to make corrections, then I have the ultimate duty to preserve [the integrity of the constitution],” he added.

However, weeks later Holness took his party and the country by surprise when he appealed the ruling. He lost, as the earlier decision was upheld by the Court of Appeal.

The NIDS Act

In April 2019, Holness and the Government were again dealt a major blow when the Constitutional Court struck down the much-touted National Identification and Registration (NIDS) Act.

The Opposition had argued that the important legislation, that was decades in the making, spanning several administrations, was being rushed through Parliament with undue haste and its concerns largely ignored.

That landmark ruling was handed down via live streaming by the Full Court comprising Chief Justice Bryan Sykes, Justice Lisa Palmer Hamilton, and Justice David Batts.

The chief justice said the panel was unanimous in its decision declaring the NIDS Act as unconstitutional and null and void.

Sykes said that having struck down certain aspects relating to privacy issues, such as the collection of biometric data, the remaining portion of the legislation could not stand.

The Government had touted NIDS as the piece of legislation that would improve the country’s national security situation while making it easier for Jamaicans to conduct business.

It was a full two-and-a-half years after it was struck down that the new and significantly amended NIDS Act 2021 was passed in the House of Representatives in October of that year.

Aspects of SOEs deemed unconstitutional

Since at least 2017 the Holness Administration has used states of emergency (SOEs) as a major plank in its crime-fighting arsenal.

While the Opposition initially supported the SOEs, it consistently argued that repeated use was unconstitutional and also served to nullify their effect.

In December 2018, the Opposition dealt a crippling blow to the Government’s efforts to tame crime, particularly murders, when it withdrew its support for the SOEs. The emergency measure requires a two-thirds majority in both Houses of Parliament to be extended for up to three months, after the initial two weeks, following a declaration.

The Government was dealt a further blow in September 2020 when Supreme Court Justice Bertram Morrison ruled as unconstitutional the months-long detention of five men without charge under the SOEs.

The court also ruled that the detention orders issued by the minister of national security were unlawful. Some of the men had been held without charge or bail for up to one year.

In the 64-page judgment, Justice Morrison stated that there was no justification presented by the Government to facilitate a proportional assessment of any legitimate objective behind the claimants’ detention.

“This I find to be the egregious overstepping of the bounds of the power of the executive,” he said.

Justice Morrison ruled that the use of the orders for the detention of the men for criminal cases without proper review breached the doctrine of separation of powers.

The Government appealed the decision, but it was thrown out by the Court of Appeal in July 2023. The Appeals Court said it had no jurisdiction to make any changes to the findings made by the Supreme Court with respect to the habeas corpus application that was made on behalf of the men, who were eventually determined to have been unlawfully detained under the SOEs.

The Appeal Court also determined that the Government was “bound by the decision” of the Supreme Court regarding the SOEs “regardless” of its reasons for disagreeing with it.

The Government had filed an appeal against some of the findings in a September 2020 judgment by Justice Bertram Morrison in which he stated that the detention of four men under the SOEs was “unlawful”.

Morrison had also ruled that, “The situation which led to the detention of the objectors (the men detained in custody) does not qualify as an emergency or satisfy the situation in sections 20 (2), 20 (5) of the constitution”.

Further, the judge said, “The claimants’ constitutional rights and the constitution itself are being breached by the current detention and executive detention system.”

The men were released from police custody when the SOEs ended on August 17, 2020, the day before Nomination Day activities for the September 3 General Election.

DPP ruling to be appealed

After last Friday’s ruling by the Constitutional Court, the Government quickly signalled that it will be filing an appeal.

The full court, comprising justices Tricia Hutchinson Shelly, Simone Wolfe-Reece, and Sonya Wint Blair 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 challenge was brought by the Opposition People’s National Party (PNP).

According to Opposition Leader Mark Golding and lawyers representing the PNP, the ruling means that the DPP has to demit office with immediate effect.

King’s Counsel Michael Hylton, the representative for the claimants, said they are pleased with the ruling.

“The case is not about Ms Llewellyn, it’s not about how she did her duties, it’s not even really about the extension. The case is about the rule of law, about establishing a principle that the same laws apply to everybody, and that the constitution needs to be respected,” Hylton told journalists.

Meanwhile, Member of Parliament Phillip Paulwell, who alongside Senator Peter Bunting brought the case on behalf of the PNP, said if the Government had respected the Opposition, “we wouldn’t have this unfortunate situation where a public servant is being embarrassed”.

“This matter could have been dealt with by a conversation between the prime minister and the leader of Opposition, which is what the constitution requires,” he said. “I believe the judgment was a good one.”

However, Attorney General Derrick McKoy insists that there is no declaration from the court for Llewellyn to demit office.