‘State wants death penalty for all killers’

THE DEATH PENALTY CASE — DAY 2

ENGLISH Queen’s Counsel Edward Fitzgerald submitted yesterday that the legislature wants to keep the mandatory death penalty because “there is a theory that everybody convicted of murder deserve to suffer death.” He said that could only be the reason based on the justification of the legislature instituting and maintaining a mandatory death penalty for all those convicted of murder. “Once that rationale has been abandoned, there is no longer any justification for the retention of the death penalty by the legislature,” Fitzgerald argued. Fitzgerald spent a long time yesterday dealing with the separation of powers issue and why the executive should play no part in the sentencing process of persons convicted of murder. But the English QC felt the pressure from the questions of the Law Lords (something which the English cricket team in Trinidad did not experience).

Throughout the morning, questions flew from Lords Scott, Nicholls, Hope, Hoffmann and Mr Justice Edward Zacca. They were most vocal on this subject than on any other point. But Fitzgerald continued nevertheless. He said that in the past, the orthodox view was that the prescription of a mandatory penalty (including the death penalty) for all those convicted of a particular crime was something that the legislature could do without violating the principle of the separation of powers. He submitted that a well-recognised limit on legislative powers was that the legislature was prohibited from passing laws which transfer to the executive what are truly sentencing functions which should be performed by the judiciary. He felt that the judiciary should be the body to sentence persons convicted of murder — not the executive. “What is important is that the courts have recognised that this is a key judicial function that the legislature should not leave to the executive,” counsel added.

Fitzgerald said it had been clearly established by decisions of domestic constitutional courts and international human rights bodies, that the mandatory death sentence offends against two fundamental norms — the prohibition against inhuman and degrading punishment and the prohibition against the arbitrary deprivation of life. “It is recognised in practice and case law that not everybody convicted of murder deserves to die. This undermines the very legislative justification for the mandatory death penalty since the rationale of the legislation can no longer be that the mandatory death penalty is appropriate because everybody convicted of murder deserves to die. “In the absence of the legislative intent, the mechanism whereby it is determined when the death penalty is appropriate in an individual case becomes of crucial significance. Unless this task is performed by the judiciary, it means the quintessentially judicial function of selecting the appropriate penalty has wrongly been left to the judiciary.”

Fitzgerald said the legislature was forcing judges to impose cruel and unusual or grossly disproportionate punishment. Fitzgerald said it was established beyond doubt that not everyone sentenced to death deserves to suffer death for the crime of murder. “If it was ever the intention of the legislature that every murderer should be executed, that has long since been abandoned,” he submitted. “Once it is accepted that not everyone convicted of murder deserves to die, it follows that some mechanism is required to determine when the penalty is deserved, and when it is not.” Fitzgerald said the absence of a judicial hearing to determine the sentence in each case of murder, renders the mandatory imposition of the death penalty a cruel and unusual punishment. It is the same absence, he added, which renders the mandatory death penalty a violation of the separation of powers. Justice Zacca intervened, “it is the judge who has the discretion, and after the sentencing hearing, he says this is a case for the death penalty. And if the Advisory Committee recommends commutation, are you alright with that?”

FITZGERALD: Yes, my Lord.
JUSTICE ZACCA: But isn’t the Committee taking away the powers of a judge?
FITZGERALD: No, my Lord. That is not taking away the powers of a judge.
Counsel submitted: “a law mandating judges to apply the mandatory death penalty does not merely remove from the judiciary their usual sentencing discretion. It requires them to impose a sentence that, at least in many cases, is so disproportionate, it amounts to cruel and unusual punishment. This is to require judges to be administrators of universally recognised injustice. It is submitted that such a requirement is not merely inconsistent with normal judicial functions. It amounts to their complete inversion. And, it violates the doctrine of the separation of powers.” When hearing resumes this morning, Keir Starmer QC will make his submissions on behalf of the Barbados appellants — Lennox Ricardo Boyce and Jeffrey Joseph.

‘TT violated international obligations’

BEING the lone Trinidadian who will face the Law Lords over the six days, Douglas Mendes SC was short and to the point. He made it quite clear that Trinidad and Tobago had breached its international obligations where the death penalty was concerned. After presenting Trinidad and Tobago cases (Rawle Kennedy and Haniff Hilaire), Mendes told the Privy Council that the rulings of the international human right bodies showed that: “it has been authoritatively determined that Trinidad and Tobago is in breach of its international obligations within the United Nations and the inter-American systems.”

Mendes was one of two lawyers who argued for Trinidadian Death Row prisoner Charles Matthews who is seeking a review of his death sentence in light of the Privy Council ruling last November in the Trinidad case of Balkissoon Roodal. Mendes followed the submissions of English Queens Counsel Edward Fitzgerald who spent a day and a half hoping to convince the Law Lords not to reverse the Roodal decision. In that case, the Privy Council ruled that the death penalty was no longer mandatory and it was up to the trial judge in his discretion to impose whatever sentence he chooses. Mendes said the common theme running through the cases was that the mandatory death penalty is a cruel and unusual punishment because it precluded any judicial consideration as to whether this “most exceptional form of punishment” was appropriate in the circumstances of the individual case.

He added: “It is now a fundamental principle of the legal system in Trinidad and Tobago as it has evolved that before a person found guilty of murder is sentenced to death, potential mitigating circumstances must be taken into consideration by a court of law.”
Mendes pointed out that a new state of affairs had arisen in TT. He listed three points:
(a) the introduction of a bill of rights and the determination that the mandatory death penalty is in conflict therewith;
(b) the accession by Trinidad and Tobago to international human rights treaties and the determination that, because of the mandatory death penalty, Trinidad and Tobago is in violation of its international human rights obligations;
(c) the determination that mercy is an inadequate substitute for a judicial determination of the appropriate sentence. Mendes said it was now universally recognised that the imposition of the death penalty without any consideration of the individual circumstances of the case was unjust and a violation of the due process of the law. “After all, the mandatory death penalty is arguably the quintessential example of the arbitrary and unjust sentences which Section 68 (2) of the Interpretation Act is intended to eradicate,” counsel added.

According to Mendes, 68(2) of the Act was intended to deal with fixed penalties — not the death penalty. “It is clear that the mandatory death penalty is a fixed penalty.” The Trinidadian SC said an interpretation of the Act did not cater for the death penalty. Mendes then asked: “is the mandatory death penalty different in kind or dimension from that for which Section 68 (2) was passed?” Then he replied, “the mandatory death penalty is not different in kind or dimension from the fixed penalties which are acknowledged to be covered by Section 68 (2). A judge is equally mandated to impose the death penalty in absence of the normal sentencing function as with any other fixed penalty.”