By Ashley Young-
A court in London has been asked to rule on Trinidad and Tobago’s mandatory death penalty for murder, with lawyers for a man sentenced to death arguing that the law is arbitrary and unconstitutional.
Every person convicted of murder in Trinidad and Tobago is prosecuted to death’ under section 4 of the Offences Against the Person Act 1925, although no one has been executed in the Caribbean country since 1999.
Jay Chandler, who was sentenced to death in 2011, argues that the law is in breach of the Trinidadian Constitution, and ‘arbitrarily authorises the imposition of the severest of sentences’ ,without giving those convicted the opportunity to persuade the court not to impose the death penalty.
Under Trinidad And Tobago’s controversial law, every person convicted of murder is prosecuted to death’ under section 4 of the Offences Against the Person Act 1925, although no one has been executed in the Caribbean country since 1999.
Chandler’s legal team argue that his rights to the protection of law and not to be deprived of life except by the due process of law, guaranteed to him by sections 4(a) and 4(b) of the Constitution of Trinidad and Tobago has been violated because he was deprived of the right to say why death was not the appropriate sentence.
The convicted murderer’s legal team added that the imposition of the death sentence on all persons convicted of murder is flawed because it fails to take into account the vast variety of circumstances in which the offence of murder may be committed and the different degrees of moral culpability which may be associated with the particular crime.
His legal team argues that it violates the right to the protection of the law and not to be deprived of life, except by the due process of law, guaranteed by section 4(a) and (b) of the Constitution because it is a cruel and unusual punishment prohibited by statute and denies persons convicted of murder the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations and to such procedural
provisions as are necessary for giving effect and protections to that right,
protected by section 5(2)(e), (f)(ii) and (h) of the Constitution,
However, the Judicial Committee of the Privy Council ruled in 2004 that a ‘savings clause’ in the constitution prevents pre-existing laws from being challenged for incompatibility with the constitution.
His team amde reference to Matthew v Trinidad and Tobago, in which the court unanimously held that the mandatory death penalty is a ‘cruel and unusual punishment’ but ruled, by a 5-4 majority, that section 4 could not be invalidated.
‘The effect of the ruling in Matthew was that the court was powerless under the constitution to remedy this admitted injustice because the savings clause protects all existing laws from challenge for inconsistency [with the constitution],’ Chandler’s barrister Edward Fitzgerald QC said today.
Fitzgerald told a nine-justice panel of the privy council, sitting in the Supreme Court’s premises, that ‘developments in the Caribbean Court of Justice … now justify the board in reviewing and reversing the previous decision of the board in Matthew’.
Three years ago, the CCJ- in another case- Nervais v Barbados – ruled Barbados’ mandatory death penalty violated constitutional rights, which Fitzgerald said left Trinidad and Tobago as the last country in the English-speaking Caribbean to retain such a law.
He said: ‘There is no dispute … that, if the power of modification is available, it can be modified – the words “shall suffer death” can be modified to “may suffer death”.’
But he said the question for the court was whether the savings clause ‘prevents the court from modifying in the way it has in many other Caribbean jurisdictions, [such as] Belize, throughout the eastern Caribbean, the Bahamas and Jamaica’.
Howard Stevens QC, for the attorney general of Trinidad and Tobago, said Chandler’s argument ‘opens the door to the review and modification of all “existing laws” despite the clear terms’ of the constitution, which could ‘undermine the rule of law and undermine the good government and due administration of Trinidad and Tobago’.
Chandler’s team argue that right to due process of law protects “rights of a procedural nature, fair trial rights, in particular (though not exclusively) the right to procedural fairness”