‘Those who don’t hear will feel’

THERE is a saying that “those who don’t hear will feel.” So when politicians, elected by the people to pass laws for the good governance of the country, fail to do so, then the Privy Council will ‘make new law’ for Trinidad and Tobago whether we like it or not.

One of the hot potato items within the legal system in this country is the death penalty. The debate as to whether the death penalty should be abolished or not has not found favour with the population. Various polls over the years show that the people favour the death penalty at a time when the murder rate has reached the highest with wanton disregard for human life. In 1989, the Elton Prescott Commission of Inquiry recommended that the death penalty remain in Trinidad and Tobago. This inquiry was established to find out whether the death penalty should remain as the punishment for murder. Up to that time, no executions had taken place since 1979 when Bobby Gransaul was hanged. The Commission also recommended that there should be categories of murder — Murder 1, Murder 2 and Murder 3. In order words, only persons who commit the most brutal of murders would face the death penalty.

On July 14, 1994, convicted killer Glen Ashby was executed at the Port-of-Spain State prison for the murder of BWIA pilot Kemraj Singh. He was taken to the gallows although his appeal on a constitutional motion was before the Privy Council. There was an outcry locally and internationally over this hanging which was considered illegal. In June 1999, Dole Chadee and eight members of his gang were executed for the murders of four members of a Williamsville family. Although the then UNC Government won the fight to hang the Chadee gang, the then Attorney General Ramesh Lawrence Maharaj was not satisfied with the laws on the statute books. He had a vision that the Privy Council would find a way to make life difficult for hanging people. Maharaj went to Parliament for a constitutional amendment which would among other things, categorise murder. The Opposition PNM refused to support the Bill and Maharaj’s dream crashed out of the Red House.

For ten years, the Privy Council has been ‘making new laws’ for Commonwealth countries. In 1993, in the Jamaican case of Pratt and Morgan, the Privy Council laid down new guidelines for those countries who still have the death penalty. Pratt and Morgan, two convicted Jamaican killers, had been on death row for 16 years when an attempt was made to execute them. They fought all the way to the Privy Council which ruled that prisoners on death row for more than five years should not be executed. This decision took the Caribbean by storm. The TT Government had no choice but to commute the death sentences of a large number of prisoners on death row. These included prisoners who had committed the most brutal murders in this country. Names like Lincoln Guerra and Brian Wallen are just a few. The killers were sentenced to life with a condition that they must not be released before the expiration of 75 years. Now this is subject to a legal battle. Then, in 1998, in the motion brought by convicted killers Darren Thomas and Haniff Hilaire, the Law Lords added something new. Convicted killers must not be hanged until their petitions to human right bodies are heard and determined. Normally, petitions to the United Nations Human Rights Committee and the Inter-American Commission on Human Rights, take years to determine petitions from convicted prisoners.

In 2001, the Privy Council went a step further. They ordered that convicted killers have a right to be heard before the Mercy Committee. If these prisoners are not satisfied with the decisions taken by the Mercy Committee, they can challenge it in the courts by way of judicial review. This can go as far as the Privy Council, which may take years as well as go past the Pratt and Morgan guidelines. Now, in November 2003, the Privy Council has put what many feel will be the final nail in the coffin for the death penalty. Five Law Lords — Lords Bingham, Steyn, Millett, Rodger and Walker — ruled on Thursday that the mandatory death sentence is unconstitutional. They ordered that a judge now has the discretion to impose a sentence on a man convicted of murder. The judge can impose the death sentence, life imprisonment, a number of years, a good behaviour bond, or community service. Doesn’t that boil down to categorising murder? Every murder case has its own facts and circumstances. Murders are committed in various circumstances. The most brutal murderers deserve the death sentence. There are mitigating factors in other forms of murder. Now the judges have a discretion in murder cases where before they had none.

In the past, a judge may have felt the need to impose a number of years on a man found guilty of murder by the jury. But his hands were tied and he had no choice but to impose the death sentence. Today, it is different. The judge can do as he pleases and even put the convicted man on a bond. In their judgment, the Privy Council has given no guidelines to the local judiciary. It is now left up to Chief Justice Sat Sharma to meet with his judges and support staff, along with lawyers from the Criminal Bar Association and Legal Aid personnel, to formulate guidelines to facilitate the judgment of the Law Lords. What is even more significant is that all the persons now on death row — 80 men and four women — have a right to have their cases reviewed. Here again, the Chief Justices comes into play to determine the criteria to be adopted for the future. Another matter which could have dire consequences in the near future is the establishment of the Caribbean Court of Justice. The UNC Government signed the agreement in 1997 establishing the court in Trinidad. Now the same UNC, in Opposition, is against the CCJ at this time. This could become a major embarrassment for Trinidad and Tobago if we cannot change our legislation to make the CCJ our final Court of Appeal. Only time will tell.