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Lawyers for the Attorney General (AG) yesterday argued that the Constitutional Court’s decision was erroneous because it held that the constitutional amendments that raised the retirement age of the Attorney General and Auditor General did not extend the term of the Director of Public Prosecutions (DPP) but merely set a maximum retirement age.
The Indian government challenged the full court ruling that struck down Section 2(2) of the Constitution Amendment Bill, which gave DPP Paula Llewellyn the power to choose to remain in office, calling it “unconstitutional”.
The court held that Section 2(1) of the Constitution, which allowed for the constitutional amendment last July to increase the retirement age for the DPP and Auditor-General from 60 to 65, was valid.
The three-judge bench ruled that “the incumbent DAG has reached the extended retirement age, (which) means that the application of Section 2(2) cannot lead to the incumbent DAG extending his retirement age again by way of election as this would be unlawful”.
The DPP reached retirement age in 2020 but was granted a three-year extension, ending in September 2023.
The judge ruled that the only legal way to extend Llewellyn’s term was through an agreement between the prime minister and the leader of the opposition.
However, lawyer Alan Wood, representing the attorney-general, argued in the Court of Appeal yesterday that the lower court judge had misunderstood the clause.
The lawyer pointed out that the Full Court ruled that Section 2(2) of the Amendment Bill gave the DPP the power to extend his term, but the plaintiff never challenged this.
However, he said the judge, in interpreting the provision, had cited the Memorandum of Objects and Reasons in the Act, which showed that the Act was never intended to change the deferral mechanism currently provided for in the Constitution.
But he said that while the mechanism had not changed, the details of the mechanism involving the age limit had changed in accordance with the amendment to Section 2(1).
He further argued that even if there is no ambiguity or uncertainty in the language and no conflict with the Memorandum of Purpose, “the Court has misread the Purpose and Statement of Reasons by considering only the words they highlighted in the judgment — ‘the mechanism of extension provided in the Constitution in relation to these posts is maintained for the time being’ and ignoring the subsequent words — ‘but extending the period for which these officers may continue to serve after attaining retirement age from 65 to 70 years’.”
He added: “They ignored the language in the amendment regarding the extension, which changed the likelihood of an extension from 65% to 70%, and they ignored or took the first few words of the memorandum out of context.”
Wood said the provision extending the DPP’s right to hold office to the age of 65 was an amendment to section 2(1) rather than an enactment of section 2(2).
He stressed that it is a fundamental mistake to interpret that “Section 2(2) is for the purpose of increasing the retirement age, but any increase in tenure must follow the procedure of Section 96(1)
According to him, the tenure of the DPP stems from the amendment of Section 96(1) which raised the age.
“She didn’t have to apply for anything, she didn’t have to ask for anything, everything was done under the amendment that gave tenure.
He said the words “shall hold office” in Article 96(1) of the Constitution gave the right to hold office for life.
“If section 96(1b) is not amended to change the age of deferral, a situation of ‘conflict and absurdity’ would arise,” Wood argued.
Wood previously maintained in his filing that the amendments were valid because they were made in accordance with the Constitution, while further noting that the court found that the amendments were not made for an improper purpose.
“This case was for the simple reason that the defendant didn’t like the outcome,” he said.
Wood further argued before a panel led by Judge Jennifer Straw, seeking to clarify what he saw as defendants’ misunderstandings.
He said contrary to their written submissions, the Attorney General held that Parliament had absolute or uncontrolled power to amend the Constitution, whereas the Attorney General’s position was that the controlled power was governed by Section 49 of the Constitution.
Therefore, he said, the power of Parliament is not absolute but controlled.
“We do hold that Section 49 is an unmistakable provision setting out a comprehensive scheme for governing the amendment or revision of the Constitution and that there is no room for the Court to add further restrictions or powers not expressly provided for in Section 49 as contended by the defendants,” Wood opined.
Opposition MPs Phillip Paulwell and Peter Bunting launched a challenge to the constitutional amendment bill, with the attorney general being a defendant in the case.
After the ruling, the plaintiffs said the court’s decision meant Llewellyn had to leave immediately, while the attorney general took the opposite view.
The Attorney General then appealed, claiming the verdict was erroneous.
Lawyers Michael Hylton, QC, and Kevin Powell represented the Opposition MPs. Lawyers Douglas Leys represented the DPP, who was an interested party in the appeal.
The appeal will continue today.
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