The knotted DPP issue
GOVERNMENT HAS tied itself into unyielding legal and political knots to keep one public servant, former DPP Paula Llewellyn, in office for two more years.
Let’s break that down starting with a brief history of DPPs.
• William Swaby (1962-1965); retired at 55; became a Supreme Court Judge;
• Huntley Munroe (1965-1968); retired at 55; became Jamaica’s Judge on Inter-American Court of Human Rights (1981-1985);
• James Kerr (1968-1977); retired at 55; became a Court of Appeal Judge. Legendary English Judge Lord Diplock reportedly considered Justice Kerr to be “the only true authority on the Jamaican Constitution.” He was the first Constitutional Reform Committee Chairman (1991) and Political Ombudsman for ten years;
• Ian Forte (1977-1988); retired at 60; became Court of Appeal President; then Cayman Islands Court of Appeal Judge;
• Glen Andrade (1988-1998); retired at 60; tutored at Justice Training Institute; was a Firearms Licensing Review Board member; and National Security Ministry Advisor;
• Kent Pantry (1998-2008); retired at 60; became UTECH Faculty of Law Dean. He’s an Associate Professor and Director of UTECH Faculty of Law’s Legal Advice Centre; Medical Council of Jamaica member; and Arbitrator of the Court of Arbitration for Sports.
Every one of Jamaica’s former DPPs has retired in a timely fashion and gone on to make significant contributions elsewhere. Yet Paula has applied twice for extensions of her constitutional tenure and seems in no hurry to move on. More inexplicably, the Government, with replacement options galore, seems anxious to hang onto this particular officer at least until the end of its current term.
Others have been opposed to her remaining. It’s widely reported that former Opposition Leader (LOO) Peter Phillips disagreed with her first extension. Based on published reports, kudos must go to Andrew Holness for compromising Government’s original position of permitting the five years for which Paula applied. He didn’t have to do this as constitutional “consultation” doesn’t mean what you might think. It simply means PM must inform LOO of his decision before making it public.
But, in this case, PM proved he wasn’t the Autocrat noisy nabobs of negativity keep calling him. He engaged in actual consultation with Peter Phillips and agreed a three year extension. Paula received the one extension the Constitution allows a DPP Paula, whose accessibility to media has been her signature accomplishment, said there were matters needing her personal attention to complete. But, three years later, she applied for another two years. Bugs Bunny might ask “What’s up Doc?”
This unconstitutional application for a second extension coupled with Government’s obvious anxiety to approve it only ended up exposing Government’s habitual bungling and legal ineptitude.
In my August 15, 2023 column
When in doubt Draw! I wrote;
“I see PNP….has decided to cut its own double by suing government over the use of a constitutional amendment to circumvent another constitutional imperative.”
Therein lies the crux of yet another court-declared constitutional setback for Government resulting from PNP’s bold domino move. A Constitution can’t be amended to grant what would otherwise be an unconstitutional extension of a particular Public Servant’s tenure. That amounts to an abuse of legislative authority to circumvent the Constitution. So Friday April 19’s judgment by the Constitutional Court was only peripherally about Paula and all about the supremacy of the Constitution over and its invulnerability to attempted parliamentary manipulation.
As I explained in the aforementioned column:
“The policy decision to harmonise two constitutional officers’ retirement age with new retirement ages throughout the public service… was made in or around 2015. At that time, there wasn’t a scintilla of disagreement. Had either the 2014/15 Government or 2016-now Government acted with average hustle this Bill would’ve been laid before Parliament in 2016, 2017, 2018 or, at worst, 2019. The Bill would’ve passed both Houses without a murmur.”
The bungling continued. I wrote then:
“But Government procrastinated. So, in 2020, DPP..was faced with retirement at an age five years younger than her employees and 10 years younger than any [Judge]. The office holder, if desiring to continue, was forced to beg Government for an extension.
This was done.”
The compromise extension resulted. Three years later, Paula
was again faced with comparatively “early” retirement. She made another application for extension and Government’s legal advice put it between a rock and a Broadback! What did it do? Back to When in doubt Draw:
“If Government didn’t know that storms were brewing in prosecutorial teacups, they certainly knew after that 2020 kerfuffle. Still they dillied; they dallied; they rushed flawed States of Emergency declarations; improperly increased road traffic fines; unconstitutional NIDS; and all manner of politically sexy legislation. Still they sat on the required Constitutional retirement age Bill.”
Then Government added legal ineptitude to habitual bungling:
“Suddenly, Government was faced with another D.P.P. Ragnarok date thanks entirely to Government incompetence and foot dragging. Faced with certain guilt for causing more embarrassment and inequity to an innocent public servant, Government finally leapt into action. Cabinet Submission; Drafting of Bill and forwarding to Parliament was accomplished in about six weeks but landed in the House on the last day for Government to cauterize its own moral responsibility to D.P.P if the term was allowed to expire due to Government neglect.”
What did Government expect the Opposition would do with such a humiliating governance fumble? PNP picked up the ball and took it all the way to the Constitutional Court where Paula’s time was declared over.
But Government wasn’t finished shooting itself in the foot. In an immediate reaction, the architect of the unconstitutional backdoor second extension, Delroy Chuck, announced Government would appeal and apply for a Stay of Execution. Execution of what? No positive action was ordered.
After a weekend of staggering around legal issues like a drunken sailor on shore leave, Delroy stepped on his own initial reaction by telling RJR Government would “recommend to the Public Service Commission [PSC] the appointment of an acting DPP maybe first thing Monday morning”. Maybe? Why maybe? Maybe because PSC’s term expired on March 31 since when Government did nothing to reappoint or replace.
Sigh.
So a “new” PSC was appointed Sunday evening and it appointed an Acting DPP to act EXPRESSLY FOR SIX MONTHS ONLY. It seems Government still fervently hopes Paula will return like the Phantom because the Attorney-General’s Chambers issued a Chinese telephone statement Sunday evening that “…due to the ambiguity and the consequent uncertainty from the court’s ruling” DPP advised that “she is unable to carry out the functions of her office at this time (my emphasis)”. The Gleaner reported DPP would “step aside.” King Beres immediately came to mind.
Hey, this is no disrespect…
This is no disrespect but could you Step aside now?
Another man wants to take over…
Step aside? The Constitution allows for an Acting DPP only “if the office of [DPP] is vacant or the holder of that office is for any reason unable to perform the functions thereof [section 96(3)]”.
Where have I recently seen SOME of those words? So, Government’s position is that the office isn’t vacant. Paula is still DPP just “unable to perform the functions of HER office” HER office! Continued misdirection despite the court declaring the “further extension” unlawful and the sub-section passed for the express purpose of giving her the option to leave (which is a backhanded option to stay) anytime up to age 65 “null, void and of no effect.”
On Sunday, A.G. said Paula can’t perform “at this time” because of “the ambiguity and consequent uncertainty from the court’s ruling.”
But. There. Is. No. Ambiguity! Litigants who appeal tend to know what they’ve appealed against. Nobody appeals ambiguity. Courts don’t deliver free opinions only judgments resolving issues raised by litigants. If “ambiguity” is the problem ask the Constitutional Court to clarify. Notices of Appeal must specify which findings the Appellant challenges and specific grounds for the challenge. So this “ambiguity” nonsense is a ploy to pretend Paula is still D.P.P. in defiance of the judgment. Government becomes Br’er Anancy and manufactures a stay of a judicial decision that can’t be stayed.
Still unable to get government’s messaging straight, a Justice Ministry Release (April 23) explained A.G’s appeal was filed, inter alia, because “the court ruled that the current DPP Paula Llewellyn could not remain in her position until age 65.”
Ambiguity? Shambiguity!
Why is Government so anxious to hang onto this particular D.P.P? There’s no need to shed tears for Paula whose future can mirror other former DPPs’. Meanwhile Jamaica’s Civil Service has an established succession plan which can seamlessly operate while Paula excels elsewhere.
Peace and Love.