‘The Full Court was right’
Lawyers for PNP say ruling against DPP continuing in office the correct one
ATTORNEYS for the Opposition People’s National Party’s (PNP) Phillip Paulwell and Peter Bunting, who are the respondents in the appeal brought by the State challenging the ruling by the Constitutional Court which placed the tenure of Director of Public Prosecutions Paula Llewellyn, King’s Counsel, in limbo, have insisted that the Full Court was right to rule against her continuing in office.
On Wednesday attorney Kevin Powell, appearing alongside veteran jurist Michael Hylton for Paulwell and Bunting, told the Appeal Court panel, which began hearing submissions in the matter on Monday, “we believe the Full Court was right to strike out (the) section on the basis that it gave the incumbent a right which she did not previously have”.
In 2023 the Government, 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 filed a lawsuit challenging the extension, arguing that the amendment was unconstitutional and should be struck down on the basis that the DPP had already received one extension in office in 2020 when she turned 60 and so should not benefit from a second.
In April, the Full Court — comprising justices Tricia Hutchinson Shelly, Simone Wolfe-Reece, and Sonya Wint Blair — ruled that while the amendment to the Act increasing the retirement age of the DPP from 60 to 65 is constitutional, the second amendment, 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”.
Powell, in dismissing several of the arguments on Wednesday raised by the attorneys for the State and Llewellyn as “non-issues”, said the legal challengers had in fact missed the real issue.
“In our notice of issues arising in the appeal we say that the real issue on the appeal is whether Section 2 (2) of the Act, purporting to give the incumbent DPP the right to elect to remain in office, is contravention of the statutory pension regime.
“The appellant’s position is that that section did not give the incumbent DPP the right to elect to remain in office but simply confirmed her right to retire early. The intervenor effectively says the same thing, that Section 2 (2) was intended to preserve the incumbent’s right to early retirement. We say they are both wrong and the Full Court was right,” Powell contended.
Powell’s argument was contesting Tuesday’s submissions by the attorney representing Llewellyn, Douglas Leys, King’s Counsel, who leverages his arguments against the 2017 introduction of the Pensions (Public Service) Act that extends the retirement age of public officers from 60 to 65, arguing that “there is no provision under this Act for the DPP or the auditor general” because they are constitutional officers and as such their benefits had to be treated differently from that of ordinary civil servants”.
Leys said the implications of that new Act were that “the vast majority of public servants sheltered by the provisions and out in the cold are these two public officers created and established by the constitution, and especially the DPP who is pre-eminent amongst all public servants”.
“There is no benefit for her so we submit that this was a major hurdle for Parliament, a kind of roadblock in how do we provide the continued right of these two public officers to enjoy their early retirement benefit,” Leys stated.
But Powell, in inviting the court to peruse the Memorandum of Objects and Reasons for the Pensions Act, said this was far-fetched.
“The submission is that, on a clear review of the Memorandum of Objects and Reasons there is no reference to the preservation of any right of early retirement; in fact, there is no right to early retirement. Neither the 2017 Pensions Act nor the repealed legislation gave a right to early retirement; what the 2017 legislation provided was the right to apply for early retirement,” Powell reasoned.
“(It) doesn’t deal with early retirement at all; it deals with the retirement age but it says a pensionable officer could elect to take early retirement. There is a difference between what Section 2 (2) was advocating to do as opposed to what this legislation provided for,” the attorney told the panel.
“When one examines the definition of public officer under this legislation the incumbent DPP falls within that, and therefore on attaining the age of 60 years the right to apply for early retirement is maintained under this legislation and the incumbent DPP was therefore not left out in the cold, as my learned friend submits,” he said further.
According to Powell, “the fact that other legislation provide for the director of public prosecutions is consistent with the constitution itself”.
This, the attorney said, was made clear by Section 95 (1) of the constitution, which provides that the DPP shall receive such emoluments and benefits from any other terms and conditions of service as may from time to time be prescribed under any law.
“The Pensions Act would fall under ‘any other law’ which governs the terms and conditions of service for the DPP,” Powell contended.
The matter, which is being heard by Appeal Court Justices Christine Straw, Vivene Harris, and Kissock Laing, resumes this morning at 9:30 when the respondents will continue their arguments.