DESPITE objections from Opposition Members of Parliament on Tuesday, the constitution was amended by legislators to increase the retirement age of the director of public prosecutions (DPP) and the auditor general (AuG).
Following a debate during the sitting of the House of Representatives, which saw Opposition members speaking against the proposed adjustments in the Constitution (Amendment of Sections 96 and 121) Act, 2023, the legislation was approved via a divide of which 37 members voted “yes” and eight said “no”.
Prior, Minister of Justice Delroy Chuck, in piloting the Bill, explained that the Constitution of Jamaica establishes a retirement age of 60 for the position of the AuG and the DPP via sections 96(1) and 121(1), respectively.
He said that the Pensions (Public Service) Act, which was promulgated in 2017, sought to, among other things, gradually increase the retirement age of public officers to 65 years.
“The Bill before this House reflects a proposal previously considered by Cabinet during the deliberations on the Pensions Bill in 2017. It was the intention of the Government to amend the constitution to give effect to the change in the age of retirement for officers so as to extend the increase in retirement age for both the AuG and the DPP,” he said.
Chuck pointed out that this was due mainly to the fact that the constitutionally established ceiling for the age of retirement for the AuG and the DPP is actually five years shorter in duration when compared to the upper limit set in the Pensions (Public Service) Act for a public officer in the civil service.
“The proposed amendment to the constitution will allow for the expansion of the term of service from 60 to 65 years, thereby addressing the inconsistency that currently exists between the two pieces of legislation and, by extension, creating a more level playing field for all,” he said.
The current DPP, Paula Llewellyn, will be 63 this September. Both she and the AuG were appointed in the same year, just a few months apart in 2008.Opposition Leader Mark Golding said he strongly objected to the constitutional amendment, which was brought to the House without prior notice, without any consultation concerning provisions to do with the appointment or extension of tenure of the DPP and the auditor general.
“In relation to those provisions, consultation with the leader of Opposition is required, whether for appointment or for extension, yet we are amending those provisions without any prior consultation,” he said.
He noted that, furthermore, the Constitutional Reform Committee, which is dealing with the reform of the constitution, “has not been seized with this matter; it has not been discussed there.”
“The minister is indicating that this is pursuant to the amendment to the Pension Legislation of Jamaica, 2017, but this attempt to extend the tenure of the DPP arose in 2019 and that extension was for three years. We objected, my predecessor, objected strongly in writing with substantive reasons why we did not support that extension then. Nevertheless, the Government has chosen to proceed in this way to seek to amend the Constitution of Jamaica by bringing a Bill, tabling it the same day that they intend to debate it, and pass it in the House,” he said.
Golding stressed that this is “bad governance” and is disrespectful to the Opposition and the Constitutional Reform Committee “and it is a dark day for our country that we would proceed in this way on a matter of constitutional amendment,” he said to uproar from members on the Government side.
“Constitutional amendments are not to be addressed in this manner. Furthermore, to seek to amend the constitution so as to affect the existing tenure of incumbent holders of office is also controversial and I think improper. It is one thing to amend the constitution to deal with future office holders, but you are dealing with incumbent office holders and extending their tenure, and we object to the procedure that is being followed,” he said.
Golding said that the Opposition will be taking legal advice on the matter to see whether or not they can challenge it in court based on the procedure being followed and the overall surrounding circumstances that have led the Government to proceed in this way.
In his objection, Clarendon South Western Member of Parliament Lothan Cousins highlighted the “danger” of Section 96 (1) of the Bill allowing for alterations, which could also mean the Government possibly lowering the age to 45 or 50 to “suit their cause”.
“I am saying that is absurd and it is dangerous, because what may obtain is any Government at any time can come into the Parliament amending a constitutional provision by way of a simple majority to suit its agenda,” he said.
Member of Parliament for St Andrew South Eastern Julian Robinson raised the issue of the tenure of the AuG, noting that “we are moving against the grain in terms of what most of the world is doing in moving to fixed terms”.
“Within the Commonwealth, you have the United Kingdom (UK), South Africa, Australia, within Europe, within Asia, fixed terms, whether it is seven years, 10 years, 12 years. The benefit of a fixed term is that the person knows that at the end of a period, regardless of decisions they may take, and in these two cases, these two office holders deal with very sensitive matters related to public officials and the fixed term gives them a sense of security,” he said.
In relation to the Office of the Director of Public Prosecutions, he argued that it is very important that both the perception and the reality of independence and impartiality of that office be maintained.
“It cannot be right for the executive arm of the Government to be rushing to Parliament with no notice of an extension of the office holder of the DPP. You are compromising the independence of the office by doing so. As such, the perception would arise that the incumbent, who is the beneficiary of this extension, will be somehow beholden to the executive. It is wrong,” he said.