‘No more mandatory death penalty’

THE death penalty in Trinidad and Tobago is on its way out. In a landmark judgment delivered yesterday, the Judicial Committee of the Privy Council struck the final nail in the coffin. Ten years ago — in November — the Privy Council blocked killers from going to the gallows if they had spent more than five years on death row. This resulted in more than 100 prisoners in Trinidad escaping the hangman. Now, ten years later, the Law Lords have struck again. This time, the mandatory death sentence imposed on persons found guilty of murder is no more. Upon a guilty verdict, a judge can now decide the fate of guilty killers — send them to the gallows, sentence them to life in prison, pat them on their backs and give them a bond, or agree to compensation by the guilty person to the family of the victim. But a mandatory death sentence is no more.

The effect of the judgment means that a judge cannot automatically sentence anyone to death as was done in accordance with Section 4 of the Offences Against the Person Act 1925. Furthermore, the 80 men and four women who are on death row in Trinidad, can apply to the court to have their sentences reviewed. Lords Bingham, Steyn and Walker, ruled in favour of abolishing the mandatory death sentence, while Lords Millet and Rodger handed down a strong dissenting judgment. They disagreed with their colleagues saying that the real ground for a constitutional challenge to the prescription of the mandatory death sentence was not that it contravenes the separation of powers, but that it offends against the prohibition on cruel and unusual punishment.

The Privy Council delivered the judgment in the appeal brought by Balkissoon Roodal against his death sentence. Roodal, 53, was sentenced to death by Justice Anthony Lucky in the San Fernando Assizes on July 15, 1999 for the murder of Philbert Prince who was shot dead in a marijuana field on August 19, 1995. Roodal lost his appeal before the Court of Appeal on April 7, 2000. On November 2, 2000, the Law Lords dismissed Roodal’s petition for special leave to appeal. Roodal went back to the Privy Council which on November 12, 2001 remitted the matter to the TT Court of Appeal to deal with the question of the constitutionality of the mandatory death sentence. On July 17, 2002, the Court of Appeal comprising the then Chief Justice Michael de la Bastide, Justice Sat Sharma and Justice Rolston Nelson, dismissed the appeal against sentence and affirmed the mandatory death sentence on Roodal. The matter went back to the Privy Council where the Law Lords heard the appeal in June this year. Five attorneys from Trinidad — Frank Solomon SC, Desmond Allum SC, Douglas Mendes, Gregory Delzin, and Rajiv Persad — travelled to London and appeared with Edward Fitzgerald QC and Keir Starmer for Roodal. Sir Godfrey Le Quesne QC represented the State.

The Privy Council quashed Roodal’s mandatory death sentence and remitted the matter for the trial judge to decide as a matter of discretion what sentence to impose. (Justice Lucky is no longer a member of the Judiciary). Lord Steyn who delivered the majority judgment said, “The court concurs (with the Inter-American Court of Human Rights) with the view that to consider all persons responsible for murder as deserving of the death penalty, ‘treats all persons convicted of a designated offence not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the death penalty.” Lord Steyn said there must be a distinction between the separation of powers — the judiciary and the legislature. “The question may therefore simply be whether, in the content of the contemporary legal system of Trinidad and Tobago, the statutory language can fairly be said to permit the reduction of the fixed penalty of a mandatory death sentence to a discretionary one.”
The Law Lords continued, “The constitution is the supreme law of Trinidad and Tobago. The constitution itself has placed on an independent, neutral and impartial judiciary, the duty to construe and apply the constitution and statutes and to protect guaranteed fundamental rights, where necessary.

“It is not a responsibility which the courts may shirk or attempt to shift to Parliament. Loyalty to the democratic legal order of the constitution required the Privy Council to grapple with the question before it and to decide it,” Lord Steyn declared. Lords Millett and Rodger, in their dissenting judgment, were satisfied that the TT Court of Appeal was right not to accept Roodal’s argument that the mandatory death sentence was abolished in this country since 1941. This had been the submission of the appellant. “We reject as far-fetched and indeed more than a little patronising the implication in the appellant’s submission that for the last six years the public, the legal profession, the courts and the legislature in Trinidad and Tobago — not to mention past members of this Board — have all been acting under a totally mistaken belief that the death penalty for murder was mandatory.” The dissenting Lords believe that the legislature should prescribe the sentence to be imposed on any particular individual.

AG: More work for the Judiciary

ATTORNEY GENERAL John Jeremie said yesterday that the judgment of the Privy Council will in effect place greater responsibility for the determination of murder cases in the hands of the local judiciary. Jeremie said yesterday’s decisions in appeals of Balkissoon Roodal and Haroon Khan were consistent with previous rulings by the Privy Council on the implementation of the death penalty. The Government, he added, has no option but to abide by the decision of this country’s highest Court of Appeal. “The decisions do not in any way abolish the death penalty. The Attorney-General wishes to express his every confidence in the ability of the Judiciary to treat with this latest development in the law and remains steady and willing to provide any additional resources which may be required.”

Ramesh: PNM did not support my Bill

FORMER UNC attorney-General Ramesh Lawrence Maharaj said last night that if the PNM while in Opposition, had supported the proposed legislation he took to Parliament, yesterday’s judgments would be academic. Maharaj said the Roodal judgment was in line with what is happening in the Common-wealth. He said India, South Africa and Zimbabwe had given similar rulings. “If the society wants the death penalty, it is a matter for Parliament. While I was attorney-general, I introduced legislation which if it was passed, the death penalty would be law post Independence. The Opposition at the time did not support the legislation. “This is a matter for the people and if they want the death penalty, then Parliament will deal with it.”

Delzin: Judgment categorises murder

ATTORNEY Gregory Delzin, one of the advocates for the abolition of the death penalty, said the Roodal judgment clearly demonstrates that murder has been categorised in Trinidad and Tobago. “What the legislature did not do, the court has done. It can now be categorised because there will be different sentences for murder.” Delzin admitted it has not been easy fighting for death row prisoners. He said people have abused him for the stand he and other lawyers took over the years. “Yes, I have gotten negative views from the people. But I stood strong through it.”

Delzin said there will be few people in this country who will feel that the death penalty must be carried out in all murder cases. “There will be knee-jerk reaction that the death penalty has been abolished, but that is not so.” Delzin said everything remains in place — appeals right up to the Privy Council and the petition for mercy to the Mercy Committee. He emphasised that the only change is that the mandatory death sentence has gone.
He said the Chief Justice, through the Registrar, will now have to list the cases of the persons on death row to have their cases reviewed.

British lawyer: 200 killers affected in Caribbean

BRITISH human rights lawyer Saul Lehrfreund said yesterday that more than 200 convicted killers in the Caribbean stand to have their sentences reviewed by the courts. He listed 80 men and four women in Trinidad as being among those affected. “The ramifications and consequences of the Privy Council’s ruling are huge. The implications for future murder trials will be the introduction of a completely new set of procedures restricting the imposition of the death penalty in the first instance. He said the Roodal judgment will ensure the law and practice in Trinidad and Tobago conforms to international human rights standards in the application of the death penalty.