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Sunday, March 26, 2017

The recent announcement by the Prime Minister that he was turning to former UNC attorney general Ramesh Lawrence Maharaj to assist the Government with the revival of the death penalty caused some eyebrows to be raised.

One eyebrow was raised at the prospect of Prime Minister Rowley sidestepping his attorney general to reach for the services of Mr Maharaj on a matter that had now been thrust into the centre of the Government’s crime-fighting repertoire. The other eyebrow was the public endorsement of the death penalty after having voted against the 2011 bill brought by the People’s Partnership government to get around some of the obstacles that had been created by the Privy Council.

That bill, the Constitution Amendment (Capital Offences) Bill 2011, required a three-fourths majority and had as its intention the amendment of section 6 of the Constitution to create an additional exception to the human rights provisions in the Constitution titled Exceptions for Capital Offences.

At the final stage of voting, there were 29 government MPs voting in favour and 11 of the 12 opposition MPs voting against. The bill, accordingly, failed. One does not know if the brief that has been handed to Mr Maharaj includes any legislative proposals or whether he is to advise on procedural matters only as a means of delivering on his mandate to resume the death penalty again.

The reality is that the constitutionality of the death penalty had been confirmed in the case of De Freitas v Benny (1976) AC 239 and reaffirmed in Abbott v Attorney General of Trinidad and Tobago (1979) 1WLR 1342. In this latter case, the issue of delay of execution was advanced as a possible means by which the actual execution itself could be rendered unconstitutional. However, Lord Diplock deemed that the delay was measured in months and therefore tolerable. Nevertheless, he left open the door to a future consideration of delay measured in years which he did not answer.

The turning point on this issue got its first recognition when the Privy Council divided three-two over the case of Riley v Attorney General of Jamaica (1983) 1AC 719 in which a central issue was the question of delay of execution. Lords Diplock, Hailsham and Bridge did not agree and held that the execution should proceed, while Lords Scarman and Brightman dissented.

Ten years later, the death penalty landscape was to be irreversibly changed with the Privy Council decision in the case of Pratt and Another v Attorney General of Jamaica (1993) 43 WIR 340 in which the board held that delay of execution can render the actual punishment unconstitutional unless certain guidelines were met. The imposition of a five-year rule between conviction and execution provided for two years for the appellate process and a further three years for constitutional motions and petitions of reprieve.

The petitions of reprieve to international bodies such as the United Nations Human Rights Commission and the Inter-American Court of Human Rights did constitute an element of time consumption which caused T&T to pursue withdrawal from both the first Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR) as well as from the American Convention on Human Rights.

On May 26, 1998, T&T denounced the First Optional Protocol as well as the American Convention on Human Rights and then immediately re-acceded to the First Optional Protocol, adding a reservation that removed the right of appeal for death row prisoners. One year later, on May 26, 1999, the withdrawal of T&T from the American Convention on Human Rights took effect. Finally, on March 27, 2000, T&T denounced the First Optional Protocol outright with effect from June 27, 2000.

It was obvious that these moves were designed to allow the State enough time to meet its Pratt and Morgan timelines by seeking to eliminate the right of death row prisoners to petition these international human rights bodies.

In September 2000, the Privy Council literally tightened the noose (no pun intended) around the death penalty itself with their decision in Lewis v Attorney General of Jamaica (2001) 2 AC 50 in which they overturned their earlier decision in De Freitas v Benny some 25 years before by now allowing judicial review of the proceedings of the Mercy Committee as well as requiring states to wait on international bodies to report on human rights petitions as well as taking prison conditions into account.

Another issue arose soon after in 2002 in Reyes v R (2002) 2 W L R 1034, R v Hughes (2002) 2 W L R 1058 and Fox v R (2002) 2 W L R 1077 in which the Privy Council relaxed the mandatory sentencing guidelines for judges in capital cases and permitted discretionary sentencing. That issue had an embarrassing setback in T&T in two cases Balkissoon Roodal v The State (2003) 64 WIR 270 and Matthew v The State (2004) UKPC 33 in which the former introduced discretionary sentencing and the latter reinstated mandatory sentencing.

How Mr Maharaj will navigate his way through this maze of legal obstacles without legislative amendment is left to be seen.


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