‘Not every killer deserves to die’

ENGLISH Queen’s Counsel Edward Fitzgerald submitted yesterday that it was now universally accepted, and confirmed by the practice of the TT Government, that not everyone convicted of murder in Trinidad and Tobago deserves to die. He pointed out that the system which operates in Trinidad means that the Legislature has improperly left it to the Executive to perform the judicial function of matching the penalty to the individual circumstances of the case — through the prerogative of mercy. Fitzgerald spent all day on this feet as he sought to convince the panel of nine judges that they should not depart from their decision last November in the Trinidad case of Balkissoon Roodal.

In that case, the Privy Council by a 3-2 majority, ruled that the mandatory death sentence no longer applied, and it was up to the trial judge to decide what sentence the convicted killer should receive. Trinidad and Tobago, Barbados, and Jamaica, petitioned the Privy Council to try to convince the Law Lords to reverse their decision. The case began in the House of Lords before an unprecedented nine judges. Fitzgerald appeared for convicted Trinidad killer Charles Matthews. In his submissions, Fitzgerald said it was inconsistent with the separation of powers for the legislature to require the judiciary to impose a death penalty that is cruel and unusual punishment, by reason of its disproportionality in an individual case.

Counsel added, “Moreover, it involves the removal of a quintessentially judicial function from the judiciary in respect of the most extreme penalty to deprive the judiciary of the power to match the penalty to the gravity of the individual’s crime in the manner that is now required by international human rights law and the norms enshrined in Section 5(2) (b) of the Constitution.” Fitzgerald said the question of whether the mandatory death penalty violates the doctrine of the separation of powers was not considered by the majority in the Roodal case. The English QC pleaded with the judges to follow the Roodal principle. He accepted that the Privy Council is entitled to depart from earlier decisions, and that it had done so on several occasions. But he warned that this must only be done in exceptional circumstances.

He pointed out that the Lords in the Pratt and Morgan case departed from a previous decision after hearing fuller arguments than on the other occasion. Secondly, he said a man’s life was at stake and that the departure in the Neville Lewis case was designed to afford greater protection from the unjustified or unconstitutional imposition of the death penalty. Fitzgerald pointed out that based on the Roodal decision, the mandatory death sentence imposed on Matthews must be set aside and that he will be entitled to be re-sentenced on the basis that the courts have a discretion whether to impose the death penalty. Counsel said the fact that Matthews’ matter was a criminal case, and that it concerns the death penalty, are strong reasons for not reversing the Roodal decision in a way that re-exposes convicted murderers to the mandatory death penalty.

Fitzgerald told the judges that for them to depart from Roodal, they must be clear and certain that their decision was wrong — it must be manifestly wrong, or plainly in error. “There is no new evidence to reverse Roodal. The Court of Appeal (of TT) has already referred cases back to the Supreme Court for review,” he argued. Fitzgerald said that since the Roodal decision, those on Death Row, including Matthews, have acquired a legitimate expectation that they would not continue to be subjected to the mandatory death penalty. He added, “To confound that legitimate expectation by re-opening the matter without some exceptionally strong justification, is verging on cruelty, and likely to undermine confidence in the rule of law.”