CONSTITUTIONAL scholar and attorney Michael Hylton, King’s Counsel, on Thursday chided the Full Court, which in April struck down the second bar of the 2023 constitutional amendment which would have extended the tenure of incumbent Director of Public Prosecutions Paula Llewellyn, King’s Counsel.

The court, he said, ignored evidence that the Government rushed to change the statute solely “to appease” Llewellyn because she had been denied a second extension by the Public Service Commission.

“What I am trying to say is, had they [Full Court] considered [the historical context] they would find that this was the dominant purpose. It was done at a time and in a way to appease the incumbent and it is done in the context of the incumbent having already received an extension and not being able to get another,” said Hylton. He is the lead attorney 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.

According to Hylton, arguments by attorneys representing the State and those representing the DPP that the amendment was proper as, despite the 2017 introduction of the Pensions (Public Service) Act extending the retirement age of public officers from 60 to 65, the DPP and Auditor General had been left out in the cold since they are creatures of the Constitution, was contrived to mask what he termed “an improper purpose” and therefore illegal.

“Counsel for the appellants provided an extensive narrative about the Pension Act 2017 but they said nothing about what happened between 2017 and the Bill being taken to Parliament and they said nothing about why the Bill had to be passed the way it was in those few hours at the end of July,” Hylton told the Appeal Court panel hearing the matter.

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”.

Hylton on Thursday said the Full Court had paid scant regard to evidence in documents filed, showing the history of the matter in arriving at its judgement and urged the Appeal Court to take this into consideration in its deliberations.

“One Opposition senator proposed an amendment to the Bill so it would not come into effect until January 1, 2024 when the incumbent was no longer in office, the amendment was rejected [and] it was therefore passed.

“It is unfortunate milady and milord that the Full Court did not give this evidence due regard when determining the purpose of the Act. They had actually made a finding about the evidence that they could and should consider in their judgement where their ladyships in the full court said this court is entitled to the best possible contemporaneous evidence made in the most reliable context where a frank explanation would have been expected,” he stated.

Said Hylton: “The evidence I just cited is contemporaneous, but the Full Court in their judgement did not refer to it, they did not say it was just coincidence or just poor timing.”

Appeal Court Justice Kissock Laing asked, “So could the court find that those factors trumped everything about the actual procedure which was adopted for the quick passing of the bill and the fact that there was an anomaly in terms of where the position of the DPP and the auditor general was concerned?”

Hylton said, “Yes, but the Full Court could have said here is this other evidence, but they said nothing about it. One can have multiple purposes and no doubt this Act does serve the purpose of harmonising… and I am not arguing that, but the dominant driving purpose for the timing in which it was done and the way it was done was for the incumbent DPP to stay in office.”

The attorney, in hammering home the point that all actions on the subject matter “between January 2023 and July were all aimed to benefit the incumbent”, said “if this court concludes contrary to the Full Court, that this was indeed the purpose, then we submit that it was an improper purpose and keep in mind that proper in this context means it is within the intent of the power given.

“The reason why we say, assuming again that that was the purpose, that it was outside the scope, is that the constitution has a separate regime and process for the extension of tenure and so using the amendment process to extend the tenure in the manner it was done would plainly be outside of that intent and that purpose,” he added.

Asked by Justice Christine Straw, who leads the panel, if whether the DPP had been in a “class of officers that would have benefited from the extension at that time” it would “also be considered improper”, Hylton in referencing a similar amendment for members of the judiciary said “it was different… there was no evidence or even a suggestion that that amendment was for the purpose of any particular person”.

“There is no evidence or suggestion that any sitting judge had already received such an extension, so the issue that we point to in this appeal in relation to the DPP would not apply there,” he contended.

On Thursday, attorney Ransford Braham, King’s Counsel, who also represents the State alongside Allan Wood, King’s Counsel, described Hylton’s “improper purpose” defence as “a most interesting concept”.

“A question was posed to me, and I pose it to the court. If my friend is correct, and let us assume that Parliament amended a deeply entrenched provision in accordance with the constitution, referendum and everything. Would the court still have the power to strike it down on the basis that it was passed on improper purpose?” Braham asked.

“Seems to me that if my friend is correct, the answer must be yes and that would turn the law entirely on its head… improper purpose should be eliminated, it has no place before you today; improper purpose is not applicable at all,” Braham warned.

The hearings, which began on Monday, should conclude today.