THE Constitutional Court ruling which declared as “unconstitutional” the second extension of the tenure of Director of Public Prosecutions (DPP) King’s Counsel Paula Llewellyn was on Monday described as “an absurdity” by an attorney representing the State.

Allan Wood, who is appearing for the Office of the Attorney General, made the argument as the Appeal Court opened its hearing on the judgment made in April.

The appeal centres on the validity of the 2023 Act which amended sections 96 (1) and 121 (1) of the Jamaican Constitution, giving the right to the incumbent DPP to be able to extend her term of office beyond the retirement age.

In April the full court — comprising justices Tricia Hutchinson Shelly, Simone Wolfe-Reece, and Sonya Wint Blair — had ruled that while the amendment to the Act increasing the retirement age of the DPP from 60 to 65 is constitutional, the new provision introduced into the constitution via a second amendment, giving the DPP the right to elect to remain in office, 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 decision the court said the “incumbent DPP had 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”.

Wood, in addressing the finding of the Full Court which said that the amending Act was “passed for a proper purpose” and was consistent, argued that, “The Full Court did find that the amending Act did not alter or impact any of those entrenched provisions, particularly the provisions preserving the independence of the director and insulating her office — and that finding is correct.

“Similar provisions amending the retirement age for the auditor general — which are also not entrenched — no argument was made attacking those provisions so, quite simply, what this case is about is that the respondents do not like the results. Quite frankly, I find it quite perplexing as to what thereafter occurred,” he said.

Noting that Section 96 (1) was “not amended by ordinary legislation”, Wood told the Appeal Panel, “it was passed as constitutional amendment in accordance with the procedure set out in Section 49 and that, with respect, should be the end of the matter. I should be able to sit down; it is either validly passed or it is not. How can you test what was amended by what was there before? With all respect, it’s an absurdity.”

Asked the purpose of the problematic Section 2 (2) Wood said, “All she did, in my respectful submission, is, for good order, indicate to the Public Services Commission that, ‘I am not going to exercise my right to leave for early retirement.’ She didn’t need to do that so it’s neither here nor there. She did not have to say, ‘I’m extending my tenure.’ ”

Explaining further under probe by Appeal Court judge, Justice Christine Straw — who leads the appeal panel comprising justices Vivene Harris and Justice Kissock Laing — Wood said, “It is a transitional provision to say the incumbent has the right to leave at 60 and, therefore, if she wishes to leave she can, but that is not a right given to the incumbent to say, ‘I am extending my tenure; the right to leave’ — which is completely different from a right to remain in office or to extend it.”

Taking aim at the arguments of the respondents, he said “There have been no submissions by either party to the court below that Section 2 (2) of the amending Act conferred on the DPP a power in her to extend her term of office. It was raised by the court in their judgment but there had been no submissions to that effect.”

Ending his submissions for Monday, Wood said, “In my submission, the Full Court erred in finding that the amendment to Section 96 (1) did not extend tenure but was merely setting out a maximum retirement age. The words of Section 96 (1) are words of tenure — ‘shall hold office until the age’— and is a provision that confers the right of the holder to remain in the office until that maximum age, akin to the right enjoyed by the judiciary and the auditor general.”

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.

The 2023 amendment to the constitution to increase the age at which the DPP and the auditor general should proceed on retirement from 60 to 65 followed on a previous three-year extension in 2020 when Llewellyn turned 60, which would have ended in September last year. But the the Opposition People’s National Party filed a lawsuit challenging 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.

Following the Full Court ruling, which sparked a firestorm in legal circles, Llewellyn indicated 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. That appointment is in force for six months.

The matter resumes this morning at 9:30. Attorney Douglas Leys, King’s Counsel, appears for Llewellyn while attorney Michael Hylton, King’s Counsel, appears for the respondents Phillip Paulwell and Peter Bunting.