From Dudus to Paula: The questionable use of state resources to advance the interests of individuals

In September 2023, the Government of Jamaica made an unprecedentedly hurried amendment to the Constitution, completing the tabling and passing of the Bill in a single sitting in the Lower House. Within another three days (that same week) the Bill was passed in the Upper House, and two days later it was signed into law by the Governor General.

The amendment was to raise the retirement age of the Director of Public Prosecutions (DPP) and the Auditor General, from 60 to 65. At the time of the amendment the then DPP, Paula Llewelyn was nearing 63 and had already received a three-year extension of her period of service in 2020 when she was nearing 60. The age of the Auditor General was not known but was presumed to be in her late 40s or early 50s (but not yet 60). Thus, for all intents and purposes, the immediacy with which the raising of the age was being done was for the expressed benefit of the DPP.

The Parliamentary Opposition objected to the amendment, but the Government, using its super majority was able to pass the amendment. The Opposition challenged the matter through the Court and on Friday April 19, 2024, the Constitutional Court handed down its ruling. In my view, there are three main points made in the judgment, namely:

• That the raising of the retirement age from 60 to 65 was lawful and constitutional,
• That the incumbent DPP had already benefited from the sole extension allowable under law, could not benefit from a further extension,
• The amendment [Sec 2 (2)] which provided for the DPP to elect her time of retirement after age 60 and before (or no later than 65) is unlawful.

It bears repeating the amendment was made in a single day to benefit one, and only one public officer’s circumstances that required urgent attention. The question then which arises is what considerations led to the state of urgency that the Government was applying in the circumstances. The motive for ensuring that this single office holder benefitted, remains undeclared and opaque.

It bears repeating the amendment was made in a single day to benefit one, and only one public officer’s circumstances that required urgent attention. The question then which arises is what considerations led to the state of urgency that the Government was applying in the circumstances. The motive for ensuring that this single office holder benefitted, remains undeclared and opaque.

Government’s appeal of the judgment

From the outset the government vowed to appeal the judgment, though it initially said the judgment did not indicate that the DPP should vacate office.  This claim that the judgment was silent on whether the DPP should vacate the office is completely inaccurate, however, as the judgment at paragraph 172 reads in part, “The provisions of section 2 (2) cannot lawfully be applied to lead to a further extension in office by way of an election on the part of the incumbent”.

The weight and focus of the judgment, therefore, is that raising the age of retirement from 60 to 65 is lawful and thus, all future holders of the office of DPP will enjoy a retirement age of 65. There is, therefore, nothing here to appeal, and as such the government’s argument that “…harmonization of the retirement provisions, maintaining the intended retirement benefits for all affected public officers…” is a complete red herring as there is no dispute of that matter in the judgment.

So, with the issue of harmonization not being an issue, and all future DPPs now eligible to retire at age 65, this appeal is about ensuring that Ms. Paula Llewelyn gets an additional two years.

The weight and focus of the judgment, therefore, is that raising the age of retirement from 60 to 65 is lawful and thus, all future holders of the office of DPP will enjoy a retirement age of 65. There is, therefore, nothing here to appeal, and as such the government’s argument that “…harmonization of the retirement provisions, maintaining the intended retirement benefits for all affected public officers…” is a complete red herring as there is no dispute of that matter in the judgment.

The challenge by the Opposition was good for the country

Despite the complaints by persons allied to the ruling party, the challenge mounted by the Opposition was in the interests of the country and its democracy.  It is my view that any contest which serves to clarify legal and constitutional provisions serves the end of a country’s democracy. It is worth noting that this is at least the fourth time that the Opposition People’s National Party (PNP) has challenged actions of the ruling Jamaica Labour Party (JLP), on constitutional issues, and has won. That this government has had a series of constitutional losses is its own lesson and should be, at a later point, the subject of discussion.

It is worth noting that this is at least the fourth time that the Opposition People’s National Party (PNP) has challenged actions of the ruling Jamaica Labour Party (JLP), on constitutional issues, and has won. That this government has had a series of constitutional losses is its own lesson and should be, at a later point, the subject of discussion.

But in addition to clarifying large constitutional questions, the challenge brought by the PNP created the opportunity for some enlightening disclosures.  The documents which were submitted to the Court showed that the DPP had written to the Public Services Commission (PSC) in early 2023, seeking a further extension.  This request, the documents show, was denied by the PSC on the grounds that the Prime Minister having taken legal advice did not support the further (a second) extension.  It was after the Prime Minister had declined that second extension that the Government moved to amend the constitution.  Here again we see untiring efforts of the Government to keep the incumbent in office, and the question of why the government was so committed to having this person in office becomes louder.

It was after the Prime Minister had declined that second extension that the Government moved to amend the constitution.  Here again we see untiring efforts of the Government to keep the incumbent in office, and the question of why the government was so committed to having this person in office becomes louder.

It was also disclosed that during that brief debate on the Bill to amend the constitution, neither the Prime Minister nor the Minister of Legal and Constitutional Affairs participated in the debate.  This fact must raise deeply troubling questions.  Both officials would have had important contributions to make to such a matter and the fact that they remain silent should be interrogated. The Bill was piloted by Delroy Chuck, the Minister of Justice.

An opinion of the likely outcome of the appeal

I am predicting that the government’s appeal will fail and more specifically, having read the judgment and the appeal, (and fully mindful that I cannot influence the court) I anticipate that the Court of Appeal will find that:

• There is no ambiguity in the judgement,
• The process of the amendment, the Bill being tabled, debated, and passed on the same day with no prior notice to the Opposition was inconsistent with the intention of the framers of the constitution,
• Allowing the incumbent DPP a further two years from September 2023 would amount to a second extension,
• The term of office of the DPP ended on the day the judgment was made public.

Using the constitutional offices in questionable ways

The fight by the Holness administration to keep Ms. Paula Llewelyn in office, using its parliamentary majority in ways to bypass, overcome, and frustrate the Opposition and hiding vital information from the public, is reminiscent of how the Golding administration used the Office of the Attorney-General, and other state resources to protect Christopher ‘Dudus’ Coke from extradition in relation to his international gun-running and drug-trafficking activities.  In each case the administration’s actions amount to protecting and promoting the interests of an individual. In the case of Coke, it was to frustrate and prevent his extradition, and whatever principles of Coke’s rights that were advanced, they did not serve to promote Jamaica’s interests. In a similar manner, the current fight is not about the raising of the age of retirement, which is not in dispute. Both the original action (the unlawful amendment) and the subsequent action (the appeal) are about how to get Llewelyn to benefit from an extension.  Obviously, my argument is not to suggest that history of Coke and Llewelyn are similar. My argument is that the actions of the Golding and Holness administrations to advance their personal interests bear striking and troubling similarities.  This is, in my opinion, unlawful and unethical and constitutes abuse of power and thus should be challenged.

Obviously, my argument is not to suggest that history of Coke and Llewelyn are similar. My argument is that the actions of the Golding and Holness administrations to advance their personal interests bear striking and troubling similarities.  This is, in my opinion, unlawful and unethical and constitutes abuse of power and thus should be challenged.

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Canute Thompson is Professor of Educational Policy, Planning and Leadership at The University of the West Indies, Mona Campus, a social activist, and author of eight books and eighteen journal articles.

His academic achievements include:

• Two Principal’s Awards in 2023 for research activity generating the most funds, and research activity with the most development impacts, serving as Project Director for a project executed by the Caribbean Centre for Educational Planning.
• A 2022 Bronze place winner in the Independent Publisher Book Awards for his book, Education and Development: Policy Imperatives for Jamaica and the Caribbean.
• A 2021 finalist in The Vice-Chancellor’s Award for Excellence for all-round excellent performance in Outstanding Teaching, Outstanding Research Accomplishments, Outstanding Service to the University Community, Outstanding Public Service.
• A 2021 Principal’s Award for Most Outstanding Researcher.
• Two Principal’s Awards in 2020 for Most Outstanding Researcher and Best Publication for his book, Reimagining Educational Leadership in the Caribbean.