GIVE ME LIBERTY OR GIVE ME DEATH

After Emancipation there was a period of apprenticeship designed to instill in slaves the “responsibility” of freedom. If an analogy can be drawn to our legal system, we have yet to obtain our “emancipation” from the Judicial Committee of the Privy Council, which ultimately sets the rules to structure our society. Perhaps the CCJ can provide a period of apprenticeship until we celebrate or mark a similar legal emancipation from the Judicial Committee of the Privy Council as our highest appellate court. Until then the Privy Council rules. Recently in the famous trilogy of appeals to the Privy Council: Charles Matthew v the State, Lambert Watson v R and Lennox Boyce v R, the Privy Council determined for us in Trinidad and Tobago, Jamaica and Barbados respectively, at least for now, how we are to sentence persons convicted of murder. These decisions however transcend just criminal law and raise questions of huge constitutional significance as to the meaning of our supreme law, which will be dealt with in later articles.  It is important for now therefore to understand what the Privy Council said.

On becoming independent, Trinidad and Tobago, like Barbados and Jamaica, all inherited, from the colonial governments they succeeded, nineteenth century laws imposing the mandatory death penalty for murder. In Trinidad and Tobago it is contained in section 4 of the Offences Against the Person Act Chapter 11:08: “Every person convicted of murder shall suffer death.” Those laws reflected the medieval common law of England. Until Matthew, Roodal v State of Trinidad and Tobago (2004) 2 WLR 652 set a new development in criminal and constitutional law where the Privy Council held that the death penalty was discretionary and not mandatory. This led to a new system of sentencing convicted murderers and the possibility of developing different sentences for varying degrees of murder. In Matthew the Privy Council upheld the mandatory nature of the death penalty for Trinidad. It is noted at the outset that the judgment delivered was a majority of 5 to 4. There was therefore only one voice that separated the right of an accused to a discretionary sentencing as opposed to a mandatory death sentence. It is curious to note how this result was obtained.

On December 3 1999 Matthew was convicted at the Port-of-Spain Assizes of the murder of Louise Gittens and sentenced to death. The Court of Appeal dismissed his appeal against the conviction and he successfully obtained leave to appeal against his sentence to the Privy Council. Judgment was delivered on  July 7 2004. The only ground for appeal was that the judge wrongly thought that the death sentence was mandatory. It was submitted that in fact it had become discretionary by virtue of a provision in the Interpretation Act Chapter 3:01 or by a necessary modification pursuant to section 5(1) of the Constitution of the Republic of Trinidad and Tobago Act 1976 Chapter 1:01 or to comply with the principle of the separation of powers. On the constitutionality of the mandatory death penalty in Trinidad and Tobago, the relevant provisions of the constitution are sections 2, 4 and 5, and 6(1). Section 4 of the 1976 Constitution contains a declaration that certain fundamental human rights and freedoms “have existed and shall continue to exist.”  Among these is the “right of the individual to life.”  Section 2 declares the Constitution to be the supreme law of Trinidad and Tobago and provides that any law inconsistent with the Constitution shall be “void to the extent of the inconsistency.”

Section 5(1) reinforces the declaration of supremacy in section 2 by providing that “no law may abrogate, abridge or infringe” any of the recognised rights and freedoms and section 5(2)(b) says specifically that Parliament may not impose or authorise the imposition of cruel and unusual treatment or punishment. Their Lordships noted that Trinidad and Tobago was a party to the International Covenant on Civil and Political Rights and a member of the Organisation of American States and that the Human Rights Committee and Inter-American Commission have both decided that the mandatory death penalty is inconsistent with the international law obligation. Therefore on the face of it and in upholding the principle that domestic law should so far as possible be interpreted consistently with international obligations, Trinidad and Tobago’s mandatory death sentence is inconsistent with the right of the individual to life and a violation of international human rights.

However the only reason why the mandatory sentence of death has been preserved in this jurisdiction is due to an interpretation of the saving clause in the constitution of section 6(1) where nothing in sections 4 and 5 shall invalidate -inter alia an existing law. As the Offences Against the Person was passed in 1925, replacing earlier similar legislation it could not have been invalidated by anything in sections 4 or 5. The validity of that law and the mandatory nature of the death sentence were therefore by section 6(1) preserved notwithstanding that is inconsistent with an individual’s constitutional right to life. The Privy Council’s reasoning therefore barely threaded the needle but their Lordships held:  “The language and purpose of section 6(1) is so clear that whatever may be their Lordships’ views about the morality or efficacy of the death penalty, they are bound as a court of law to give effect to it.  As Lord Bingham of Corn hill said in Reyes v The Queen (2002)  2 AC 235, 246,  “The court has no license to read its own predilections and moral values into the constitution.”

Further their Lordships noted that section 6 “ stands there protecting the validity of existing laws until such time as Parliament decides to change them…. The result is that although the existence of the mandatory death penalty will not be consistent with a current interpretation of sections 4 and 5, it is prevented by section 6(1) from being unconstitutional.  It will likewise not be consistent with the current interpretation of various human rights treaties to which Trinidad and Tobago is a party. Their Lordships have anxiously considered whether there is some possible construction of the constitution which would avoid these results and have concluded that none exists… It follows that the decision as to whether to abolish the mandatory death penalty must be, as the constitution intended it to be, a matter for the Parliament of Trinidad and Tobago.”

Having ruled that the sentence for murder will continue to be mandatory, until Parliament decides otherwise, however their Lordships reasoned that it would not be fair to so hold for Matthew and others awaiting sentencing who had the benefit of the Roodal judgment. So for Matthew as it is for all persons sentenced to death and awaiting execution as at July 4  2004 the sentence of death has been set aside and a sentence of life imprisonment imposed. The effect of the Mathew’ mandatory death sentence will only apply to all those persons convicted and sentenced to death after 4th July 2004. A curious result. Moreso if one argues that in light of this judgment a murderer convicted and awaiting execution before July 4  2004, who will now automatically be given a sentence of life imprisonment, could have received the death penalty if he had a sentencing hearing by the Court a la Roodal.

In a nation riddled with crime it is tempting to view that as the likely result of a sentencing hearing for those persons convicted and awaiting sentencing or execution before July 4 2004 had the Roodal decision not been overturned. In this regard however the statement of their Lordships in Watson addresses this anxiety and sets up the clash between our liberty and the sentence of death: “We mention one last matter. In the Court of Appeal and in argument much emphasis was laid on the very high incidence of murder and the widespread use of firearms in Jamaica. These facts are well known to the Board and are, regrettably, notorious. Criminal conduct of the kind described is not unknown in the United Kingdom. 

“So long as those conditions prevail, and so long as a discretionary death sentence is retained, it may well be that judges in Jamaica will find it necessary, on orthodox sentencing principles, to impose the death sentence in a proportion of cases which is, by international standards, unusually high. “But prevailing levels of crime and violence, however great the anxiety and alarm they understandably cause, cannot affect the underlying legal principle at stake, which is that no one, whatever his crime, should be condemned to death without an opportunity to try and persuade the sentencing judge that he does not deserve to die.”

Vasheist Kokaram
Attorney-at-Law
A publication of the Law Association