‘Prevatt saved the day for TT’

BRITISH Queen’s Counsel Sir Godfray Le Quesne said yesterday that it was the late PNM Government Minister Francis “Boysie” Prevatt who saved the day for Trinidad and Tobago when he stated in Parliament in 1976 that all the existing laws, including the death penalty, were being “saved” with the coming into being of the 1976 constitution. Sir Godfray, who represents the State in this appeal, said it was Prevatt, speaking in the Senate on March 23, 1976, who took charge of the Constitution Bill and ensured that the death penalty remain as the law of Trinidad and Tobago.

He pointed out that contrary to what attorneys for convicted killer Charles Matthews had stated, the death penalty was not abolished in TT. He said Prevatt ensured that the provisions of the new constitution became law despite last minute objections from then Opposition Senator Simbhoonath Capildeo. Sir Godfray referred the Law Lords to the Hansard report of the Senate in 1976 and quoted what Prevatt had stated: “Maybe, I should explain what the provisions which we have here are intended to achieve. We have existing laws which I suppose we will all agree, should be saved. We must have some laws with which we could go into the new constitution.

“So, we agreed that laws we have should be saved,” according to Prevatt in the Senate. (Prevatt was leader of Government Business under the late Prime Minister Dr Eric Williams). Sir Godfray told the court that there was the appointment of a Constitution Commission prior to the 1976 constitution. That Commission, he added, produced a draft constitution and a report explaining the draft. He said the draft was considered by Cabinet and a new draft was produced on June 13, 1975. The new draft was then considered by a Joint Committee of both Houses of Parliament and they produced a further draft. Sir Godfray said the latest draft was produced in the Bill which was taken to Parliament, later to become the Constitution Act. The English QC said when the Bill was taken to Parliament, Clause 6 was quite clear. “That stated that sections four and five shall not invalidate existing laws. The Bill was passed in the House and forwarded to the Senate where it was also passed,” Sir Godfray submitted.

The English QC said that Prevatt had explained that the purpose of achieving that provision was to preserve the existing laws. “Section six (1) of the constitution does not invalidate any existing law and it is not unconstitutional. The mandatory sentence of death is not unconstitutional in Trinidad and Tobago because the existing law was saved by the Savings Clause,” he told the Law Lords. On the issue of separation of powers, Sir Godfray said Parliament laid down a discretionary sentence for a judge to exercise. He said it was open for Parliament to leave the judge with no discretion or to leave him only with a discretion severely limited.

LORD SCOTT: If there is a discretionary power which Parliament says must be exercised by the judiciary, how does that work where you have a mandatory sentence with a discretion for the executive, such as the prerogative of mercy? SIR GODFRAY: All sentences passed are fixed or discretionary for any offence. There is always the executive power for mercy. It was stated that not everyone who commits murder deserves to die. Parliament is not concerned with that. It lays down the general rules for others to follow. Sir Godfray continued, “the mandatory sentence of death tells exactly who is actually to die, but that decision is not to be taken by the judge, but by other people.

The purpose of this comes into play as any sentence will be subject to review if it is thought to be leading to an injustice.” The English QC informed the Law Lords of the provisions of mercy in the constitution. He said Section 87 confers on the President to grant a pardon to any person, before or after a person is charged with any offence. He said Section 88 deals with the Mercy Committee and its composition, while section 89 tells of the procedure to be adopted when dealing with the prerogative of mercy concerning persons sentenced to death.