The Appeal Court ruling on Friday that cleared the way for Director of Public Prosecutions (DPP) Paula Llewellyn to remain in office until she is 65 years of age has been welcomed by Justice Minister Delroy Chuck who said the Government is appeased and expects no further challenge.

“It means that it has been declared that the legislation that increased the age of retirement for the director of public prosecutions and the auditor general from 60 to 65 is valid and consistent with what was done for other members of the public sector,” Chuck said.

“It further means that the DPP, Ms Paula Llewellyn, who has been out of office, pending this decision, can now resume her office at the earliest possible time. The Government is quite happy that the legislation, which was attacked by the parliamentary Opposition as being unconstitutional, has been finally settled as being valid and constitutional. The Government expects that this will be the end of the matter,” he stated, adding that any further comments will come after the written judgment.

The Appeal Court ruled that the Constitutional Court fell into error in April when it struck down the second bar of the 2023 constitutional amendment extending Llewellyn’s tenure, stating that it was “unconstitutional, null, and void”.

In a summary judgment, the Appeal Court panel, led by Justice Christine Straw, said it had determined that upon the promulgation of the Amendment Act, the incumbent DPP “automatically benefited” from the extension it granted.

In fact, the Appeal Court said the 2023 amendments to the new section 2(1), which increased the age of retirement of the DPP from 60 to 65, and section 2(2), which gave 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, were valid.

“It is our conclusion that the Full Court fell into error in the interpretation of the effect of section 2(2). Section 2(2) is a transitional provision concerning the incumbent DPP and the words “elect to retire” should be construed to mean to elect to apply for early retirement, that is, before attaining the new retirement age of 65 years. Upon the promulgation of the amending Act, the incumbent DPP automatically benefited from the increased retirement age by virtue of section 2(1). Section 2(2) did not add to that benefit and is, therefore, not unconstitutional or inconsistent with section 2(1),” the panel said in the summary.

“The Full Court erred in declaring that section 2(2) of the amending Act was an invalid constitutional amendment and is to be severed from the amending Act and struck down as being unconstitutional, null, void and of no legal effect,” it said further.

Additionally, the panel said it disagreed with the stance of the Constitutional Court that such an extension would require not just consultation as required by section 96(1)(b) of the Constitution in such matters but also agreement between the prime minister and the leader of the Opposition.

The Appeal Court, in concluding that the “Full Court erred in its statement that an agreement is required”, emphasised that, “the word consultation does not mean an agreement is to be reached between the prime minister and the leader of the Opposition”.

In 2023, the Government, through a majority vote of both Houses of Parliament, pushed through amendments to Constitution extending the retirement age of the DPP and auditor general.

However, the Opposition People’s National Party, through Peter Bunting and Phillip Paulwell, 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”.

The April 19 ruling resulted in Llewellyn stepping aside after 16 years in the position with an interim acting DPP, Claudette Thompson, appointed for six months effective April 22. An extension was granted following the expiry of the first tenure.

That same month, the Government, through the attorney general, filed an appeal against the ruling of the Constitutional Court.

On Friday the Appeal Court panel, in ruling in favour of Llewellyn, said, “It is our determination that the Full Court was correct that section 2(1) of the amending Act was validly passed. It was, however, wrong in failing to determine that section 2(1) was applicable to the incumbent DPP. The incumbent DPP, whose tenure had been previously extended to age 63, is entitled to the benefit of the increased age for retirement by virtue of section 2(1). There is no basis to read down section 2(1) as not applying to the incumbent DPP.”

“Concerning section 2(2), we have determined that the Full Court erred in their interpretation of this section. It did not provide an option to the incumbent DPP to remain in office by circumventing the extension mechanism mandated by the Constitution and was validly passed by Parliament,” the Appeal Court said further in making several orders consequent on its findings.

“The appeal is allowed. It is declared that section 2(2) of the Constitution (Amendment of Sections 96(1) and 121(1)) Act, 2023 is a valid constitutional amendment. Judgment entered for the appellant. The counter-appeal is dismissed. We affirm the decision of the Full Court that section 2(1) of the Constitution (Amendment of Sections 96(1) and 121(1)) Act, 2023 is a valid constitutional amendment. Accordingly, given the failure of the Full Court to so declare in the proceedings below, and for the avoidance of doubt it is declared that section 2(1) applies to the incumbent DPP,” the panel ruled and instructed the respondents to pay the costs of the appeal.