Reversal by Law Lords

THE COUNTRY, we expect, will share our relief and satisfaction over the Privy Council’s decision to reverse its ruling on the death penalty. Last November, the Law Lords gave us quite a jolt by declaring, in a 3-2 majority judgment, that the mandatory death penalty, which had existed unchanged in TT’s statute books since colonial times, could not be mandatory since they saw it as violating the separation of powers between State and Judiciary. They ruled that the sentencing of convicted murderers was now left to the discretion of trial judges who may or may not send murderers to the gallows. Two days after this ruling, we roundly condemned it, since we saw the decision as another attempt by members of the Privy Council to impose their abolitionist beliefs upon us.

Yesterday we were pleased to report that the Law Lords, in a 5-4 majority judgement given the day before, had in fact annulled that disturbing decision and reinstated the mandatory death penalty. We are pleased with this reversal for the reasons we expressed in our editorial of Sunday November 23, 2003, which said: “We find it offensive that the British Privy Council should again be so presumptuous as to be rewriting our laws. We consider this an affront to our sovereignty; changing or making new laws to regulate our affairs must be our exclusive business, not that of British Privy Councillors.” We have said it before and we say it again, that any change in the law affecting the mandatory death penalty for convicted murderers must be based on the consent of our people and our parliament.

The results of commissions and public consultations on the subject tell us that the majority of TT’s law abiding citizens would prefer to have the death penalty retained and, in any case, we have discerned no public agitation for abolishing the  law that provides for capital punishment. Indeed, we suspect that, with the present concern over crime, the general wish to keep the death penalty would actually be strengthened. It is satisfying, also, to learn that the Law Lords have based their reversal decision on the supremacy of our country’s constitution. It is true that Section 4 declares “the right of the individual to life” and Section 5(2)(b) states that “Parliament may not impose or authorise the imposition of cruel and unusual treatment or punishment” — provisions which may seem to disqualify the death penalty. But the Privy Council majority pointed to the categorical saving clause, section 6(1), which provides that “nothing in sections 4 and 5 shall invalidate ...an existing law.” 

The fact is the law decreeing the mandatory death penalty was in existence at the time the constitution came into force and, therefore, it cannot be “invalidated for inconsistency with sections 4 and 5.” It appears to be as simple as that, and we must now conclude that these two decisions reveal the extent to which the Privy Council is split over the question of the death penalty. In the first, the abolitionists had their way. In the second, with nine judges sitting, they fell into the minority. Finally, we are pleased that this appeal proceeded on the basis of a Caribbean effort, involving the cooperation of TT, Barbados and Jamaica. Our AG John Jeremie deserves the credit of joining the Barbados initiative taken by AG Mia Mottley and getting the Jamaicans on the team. Our problem with the Law Lords illustrate the urgency of getting the Caribbean Court of Justice on stream. But that may present another political dilemma.