Lawyers representing the government have urged the Court of Appeal to reject the “deep structure” approach of the Caribbean Court of Justice in interpreting the amendment to the Constitution which extended the tenure of Paula Llewellyn as Director of Public Prosecutions, DPP.
The matter of the appropriate approach to constitutional interpretation dominated the morning session of day two of the appeal hearing in downtown Kingston.
King’s Counsel Allan Wood slammed the interpretive approach adopted by a minority of the CCJ, and adopted by lawyers for the PNP.
The PNP’s lawyers have used the approach to argue that the amendment to extend Ms. Lewellyn’s tenure violated the spirit of the Constitution.
According to Wood, the approach of the CCJ judges has no place in interpreting the Jamaican constitution, as the country’s final appellate court remained the Privy Council.
Wood argued the Privy Council has explicitly rejected the CCJ approach. He urged the Court of Appeal judges to follow the approach of the UK based Court.
Wood told the judges of the Court of Appeal that the so called spirit of the Constitution cannot take precedence over the plain meaning of unambiguous text of the Constitution.
Wood stressed that there was no ambiguity in the amendment passed by Parliament and that it was not for the Courts to enquire into the motive of the legislative in enacting a valid amendment to the Constitution.
Wood repeatedly stressed the danger of the “deep structure” approach of the CCJ, referring to it as akin to the “deep state model”.
The interchangeable use of deep structure and deep state drew a correction from Justice Jennifer Straw, who’s leading the panel of three judges.
Straw advised Wood that the deep state reference was specific to corruption.
The deep state term has been used as a description by conservatives in the United States, most recently Donald Trump, who have argued there was a deep state conspiracy to undermine his presidency.
The Court of Appeal is hearing arguments as to whether the Constitutional Court erred when it struck down a second extension of the tenure of Paula Llewellyn as DPP.
That ruling has led to Ms. Llewellyn temporarily stepping aside as the country’s chief prosecutor.
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