An acting director of public prosecutions (DPP) will be appointed in Jamaica, the Attorney General’s Chambers announced today, 48 hours after it told Jamaicans that a Constitutional Court ruling on Friday had no impact on Paula Llewellyn’s status in office.
“Due to the ambiguity and the consequent uncertainty arising from the Full Court’s judgment in Paulwell and Bunting v the Attorney General SU 223 CV 02499, the Director of Public Prosecutions, DPP, has advised that she is unable to carry out the functions of her office at this time,” said a statement Sunday from Attorney General Derrick McKoy’s office.
McKoy is the chief legal adviser to the Government.
The chambers said the Public Service Commission will be invited to appoint a qualified person to act in the role of DPP.
It added that: “After careful consideration of the judgment and in the public interest, the Attorney General will be appealing the Full Court’s decision immediately, to have the issues resolved and determined by the Court of Appeal.”
The move was reportedly recommended to avoid a potential constitutional crisis where decisions made by Llewellyn since the April 19 ruling could be deemed invalid. There was also anxiety about whether prosecutors would have the authority to act in the name of the DPP when gun court and circuit courts resume on Monday.
The update from the AG’s Chambers came hours after Opposition Leader Mark Golding called for the resignation of McKoy and Justice Minister Derloy Chuck, claiming that their statements that Llewellyn’s status was not affected by the ruling brought Jamaica to the edge of a constitutional crisis.
“Their actions have fatally undermined their credibility as holders of those important offices,” Golding said in a statement.
“The continuation of Llewellyn in her post beyond her lawful term is not only unconstitutional but also a grave misstep in governance,” Golding said. “If the Government adamantly insists on the former DPP continuing to purport to hold that office, her actions would not be validated by law, which would plunge the country into a deeper crisis.”
The Constitutional Court ruled that an amendment to the Constitution last July raising the retirement age of the DPP from 60 to 65 years was valid, but struck down a provision that allowed Llewellyn to choose to continue as “unconstitutional, null and void and of no legal effect”.
The amendment was made about two months before Llewellyn’s initial three-year extension was due to expire in September 2023.
“Parliament has legislated for the retirement of the DPP in a way that lends itself to the interpretation that it has permitted a second extension for the incumbent,” the judgment said, adding that section 2(2) of the amendment act “cannot be lawfully applied to lead to an extension in office by way of an election on the part of the incumbent.”
Following the ruling, lead attorney for Phillip Paulwell and Peter Bunting, King’s Counsel Michael Hylton, said Llewellyn will have to step down “as of today (Friday)”, barring an appeal.
But the Attorney General’s Chambers said it did not agree with the view that Llewellyn’s tenure ended last September. “The Claimants have interpreted the orders of the Court as having the effect of removing the incumbent DPP from office. No order has been issued to that effect,” it said.
The justice minister also indicated that the Government disagreed with the court.
The Government also faced the additional challenge of rushing to install a new Public Service Commission in order to get the acting DPP in place. The previous commission’s tenure expired on March 31.
Prime Minister Andrew Holness held talks with the opposition leader on the composition of the commission today.
“The current absence of a Public Service Commission (PSC), whose term was negligently allowed to expire on March 31, 2024 without a new PSC being put in place to ensure seamless public administration, is a significant oversight by the Government that could hinder ongoing public services, including the critical appointment of an acting DPP,” Golding said.
Meanwhile, leading constitutional law scholar Dr Lloyd Barnett believes the decision to appoint an acting DPP is “the best way” at this time to respond to the Constitutional Court’s ruling that Paula Llewellyn’s extension in 2023 to continue as DPP was “unconstitutional”.
He also said the reference to Llewellyn not exercising the functions of DPP “at this time” does not have much significance.
“The wording doesn’t matter once she’s not carrying it out. We can quibble over the words but the substance is that because of the judgment, she was not in a position to legally carry out the functions,” Barnett said.
