NINE Privy Council judges are being asked to make the death penalty discretionary.
Before them is an appeal brought by a convicted killer who is arguing that the imposition of the mandatory death penalty in Trinidad and Tobago is unconstitutional.
In 2011, Jay Chandler was convicted of killing a fellow inmate at the remand section of the prison in Arouca in 2004. It was his second trial.
His appeals to the Court of Appeal and the Privy Council were denied, but in December 2020, he received permission from the London-based court to appeal his sentence.
His appeal is being heard by nine judges of the Privy Council, which is usually only done if the court is being asked to depart from a previous decision, if the case is of high constitutional importance and is of great public importance.
In Chandler’s case, not only are the judges being asked to hold that the mandatory death penalty in TT, as provided for in section 4 of the Offences Against the Person Act, is unconstitutional, but also to overturn the Privy Council decision in 2005 of Charles Matthew, which reinstated the mandatory death penalty.
Two days have been set aside for the hearing of the appeal in hybrid mode with Chandler’s local attorneys, Douglas Mendes, SC, and Rajiv Persad making submissions virtually from Trinidad, while his co-lead counsel, Edward Fitzgerald, QC, is at the Supreme Court building in London.
Also making up his legal team is Amanda Clift-Matthew for the UK-based human rights lobby Death Penalty Project. The team of local and UK attorneys is acting pro bono.
In London for the hearing are the attorneys for the State Fyard Hosein, SC, and the UK team of Howard Stevens, QC, Tom Poole, QC, and Hannah Fry.
Hearings began at 6.30 am (TT time) on Tuesday and will continue on Wednesday.
It is Chandler’s contention that TT is the only Commonwealth nation in the region to retain the mandatory death penalty and his attorneys have pointed to a 2018 ruling of the Caribbean Court of Justice (CCJ) in a Barbados case which declared the mandatory death penalty unconstitutional.
Fitzgerald, in his opening remarks, said Chandler’s appeal seeks to reverse Matthew to bring the practice in TT with the rest of the Commonwealth Caribbean to make the death penalty discretionary, not mandatory.
“We accept the death penalty cannot be voided. But it can be discretionary,” he said suggesting that the Privy Council will not be called on to invalidate section 4 of the Offences Against the Person Act find that it contravened the Constitution and modify it so it lines up with the rights and freedoms afforded to citizens.
He said a mandatory death penalty was cruel and unusual punishment and infringed the separation of powers, as it took away the Judiciary’s discretion to apply punishment based on the evidence of a case.
“The legislature has imposed this penalty and it takes away from the Judiciary the power of imposing the appropriate punishment (for murder). Determining the appropriate punishment is quintessentially a judicial function and the legislature cannot tell you how to perform that.
"The penalty of death is unique, and it is essential that it should be a judicial function…to decide who should live and who should die.”
Fitzgerald said universally it was agreed that not everyone convicted of murder should be sentenced to death.
“Judges ought to consider the merits and the legislature should not predetermine punishment or dictate to judges what to do. Not every case of murder warrants the death penalty. Not everyone convicted of murder deserves to die.”
Fitzgerald and Mendes posited that if it was decided that the Privy Council’s ruling in Matthew was wrongly decided, it should be reversed to remove the constitutional taint and because it put lives at stake.
Mendes, in his submissions, addressed the reliance by the State on the savings law clause, which prevents any colonial law in force at the time of independence from being challenged for breaching constitutional rights and freedoms.
One of the two previous decisions of the Privy Council held that the savings law clause immunised the mandatory death penalty from constitutional challenge.
The clause has featured prominently in several local cases, including those involving challenges to the public health regulations, the recent challenge of sedition laws by the late secretary-general of the Sanatan Dharma Maha Sabha, Sat Maharaj, the constitutional claim brought by Trinidad-born UK LGBTQI+ activist Jason Jones and the consideration of a bail-for-murder challenge of a former murder accused.
However, Mendes said the savings law clause should be given a narrow construction. He admitted if the Privy Council overturns Matthew and departs from it, many other cases will be affected and there will be wider ramifications for other jurisdictions.
“Such laws will have to come under scrutiny to determine if should be reviewed. The effect of overruling Matthew will cause discomfort and inconvenience but it will all be towards giving citizens of Trinidad and Tobago the full measure of the rights and freedoms under the Constitution.
“It is not doom and gloom. Yes, it will result, I suspect, in some previous decisions having to be revisited, but that would go towards ensuring rights and freedoms are protected.”
Both Mendes and Fitzgerald pointed out that TT was one of the few Commonwealth states that had not seen fit to categorise murder.
In urging the nine judges to reject Chandler’s submissions, Hosein said while the mandatory death penalty was cruel and unusual punishment, it did not violate the Constitution.
He said to continue it was a matter of legislative choice to retain the 1925 penalty. The ruling in Matthew, he said, had been part of the TT jurisprudence for more than 15 years and nothing has happened since then to warrant it being overturned.
As he pointed out that TT does not subscribe to the CCJ as its final appellate court, Hosein said each Caribbean state had its own constitutional values, and TT’s Constitution, particularly as it related to the savings law provision, differed from other countries.
“…Each Caribbean jurisdiction is a sovereign democratic state entitled to make its own choice. The notion that saved laws are a colonial relic is fundamentally flawed. The fact that section 6 of the Constitution disallows the invalidation of a saved law does not make it less democratic.”
Hosein pointed to the “many laws” that were saved, including those that regulated revenue collection such as income tax, customs, excise and stamp duties, real property, conveyancing, and regulation of the police service and the defence force, among others.
“There is a constitutional supremacy and the Legislature chose to leave in place many saved provisions.”
He also warned if Matthew was now overturned it would have a significant impact on public health regulations currently being used for the covid19 pandemic and the Sedition Act and Bail Act.
The State is expected to continue its submissions on Wednesday, after which Chandler’s team will get an opportunity to respond.
In a release on the case, the Death Penalty Project said there were currently approximately 45 prisoners on death row in the country and over 1,300 awaiting trial for murder.
It also said there have been no executions locally for over 20 years, with the last hanging taking place in July 1999.
Presiding over Chandler’s appeal are Lords Reed, Hodge, Lloyd-Jones, Sales, Hamblen, Stephens, Hughes, Lady Arden and Sir Nigel Davis.