Leys insists raising retirement plugged gap that left DPP ‘out in the cold’

Counsel for the incumbent Director of Public Prosecutions (DPP) Paula Llewellyn says it is puzzling that the Constitutional Court struck down a provision that was the only mechanism in place giving the DPP and the Auditor General the right to early retirement.

King’s Counsel Douglas Leys argued yesterday in the Court of Appeal that the DPP and the auditor general were both “left out in the cold”, after the Pension Act of 1947 was amended in 2017, leaving them without that right. All other public servants, he said, had the right to elect for early retirement.

However, he said with the amendment of the Constitution last July raising their retirement age from 60 to 65, Section 2 (2) was enacted to plug the gap, but that this was lost on the Constitutional Court.

Parliament’s objective, he argued, was to provide a clear and clean solution by way of a benchmark, that the DPP – who is the most pre-eminent public officer and whose office was governed by the Constitution – could opt to take early retirement any time after the age of 60.

But, he said: “The Full Court, for reasons best known to itself, did not consider the clear implications of the Pension Act and the impact it has on the Constitution and current officeholders if there were no provisions to secure these pension rights; it wasn’t considered at all.”

‘HIDDEN IN PLAIN SIGHT’

Asked by Justice Kissock Laing if this point was raised and argued in the lower court, Leys said it was “hidden in plain sight” while noting that it was referenced in the pleadings.

“It’s really mystifying how the Full Court missed this opportunity given the exhaustive analysis they went into, striking down the legislation because certainly if you are going to strike it down then this has to be factored in the equation … so there’s a fatal omission, it leaves one to wonder what were they thinking,” Leys stated.

Leys is arguing in the Court of Appeal on behalf of Llewellyn, an interested party, in an appeal brought by the Government against the Full Court’s ruling which had struck down Section 2 (2) as unconstitutional.

Their interpretation was that the provision gave Paula Llewellyn the power to elect to remain on the job as DPP, but declared it “unconstitutional”. The court said that an agreement between the leader of the opposition and the prime minister was required to extend her stay.

The DPP had reached retirement age in 2020 but had got a three-year extension, which ended in September 2023.

The court however found that Section 2 (1), which allowed for the constitutional change in July to increase the retirement age for both public servants, was valid.

Leys in his submission said the Full Court also erred when it concluded that the words “notwithstanding” or “election” in Section 2(2) meant that there was no need to address a need or desire to retire for an officeholder who is under the age 65.

“But it had to be addressed because the DPP and AG did not fall under the Pension Act so this is something specifically which had to be addressed and, had the Pension Act been considered, the Full Court would have come to a different conclusion,” he added.

Laing again enquired if this argument was raised in the manner in which it was being done now and Leys answered in the negative while stating “that does not make it right”.

Justice Vivene Harris however asked Leys if he was aware of an amendment to the Public Service Regulation Act by the Pension Act which indicated that an officer can at any time, after reaching 60, apply for permission for early retirement and state the grounds on which he or she is applying.

Noting that that was “an interesting development”, Leys told the judge that he would have to go and research it and give his response later in his submission.

But at the same time, he submitted that for that to be a solution for the DPP and the auditor general, the increase in the retirement age under the Constitution would have to be amended.

Pressing further, Harris asked him whether he would agree that there are several other regulations under the civil service which applied to both public officers and that the Constitution was not the only answer.

PARTING COMPANY?

While acknowledging that he understood perfectly the judge’s point, Leys said, “I think this is where we may part company” to which the judge quickly replied, “Who says we are parting company or we are in any company,” while stating that she was not being rude.

Harris declared that she was simply asking questions to ensure that the judges did not leave with any unanswered questions.

Leys further in his argument, adopted the submission of the attorney general in that the Constitution did not require agreement between the prime minister and the opposition leader to extend the DPP’s tenure.

Opposition lawmakers Phillip Paulwell and Peter Bunting had initiated the challenge to the amendment to the Constitution, while the attorney general was the respondent in the matter.

Following the ruling, the claimants said the court’s decision meant that Llewellyn would have to leave office immediately while the AG had the opposite view.

The AG subsequently appealed, claiming there were errors in the judgment.

Attorney-at-law Michael Hylton, King’s Counsel, and Kevin Powell are representing the Opposition lawmakers. Leys is representing the DPP, who is an interested party in the appeal.

Leys will complete his submission today when the hearing resumes.

tanesha.mundle@gleanerjm.com