Privy Council’s retrograde step

Fyard Hosein, SC - FILE PHOTO
Fyard Hosein, SC - FILE PHOTO

LAST NOVEMBER, when the Privy Council heard arguments on the legality of the mandatory death penalty for murder, there was a moment that told us everything we need to know about the implications of the case.

Lawyers argued judges should be free to impose a sentence that matches a criminal’s degree of culpability. They should not be forced to apply a punishment widely acknowledged to be inappropriate.

The State, however, argued the law was set in stone because of the Constitution’s “savings clause.” It is for the Parliament and not the court to change this, they argued.

Lord Stephens, one of the law lords hearing the appeal, asked state attorney Fyard Hosein, SC: “Is there a reason why there should be a continuation of a cruel and inhumane punishment?”

Mr Hosein replied, “My Lord, my answer to that is that it is a matter of legislative choice.”

The judges sided with Mr Hosein on Monday. Not only did they declare the mandatory death penalty valid law, they rejected the notion that the savings clause could be invalidated or modified.

Said the court: “The 1976 Constitution has allocated to Parliament, as the democratic organ of government, the task of reforming and updating the law.”

The implications of this decision extend far beyond death row. Its logic suggests that if Parliament wishes to pass an unjust or inhumane law, so be it. There is nothing a court can do if foul laws are left on the statute books. Human rights be damned.

But what, then, is the role of the court?

In ruling as it has in the case of Chandler vs The State, the Privy Council has buried its head in the sand. Long used to its special status as the pre-eminent arbiter of jurisprudential reasoning in the Commonwealth, it saw fit to ignore the chorus of learned jurists all over the Caribbean and elsewhere who have voiced disquiet over colonial-era legal provisions that enact profound injustices.

It ignored, for instance, the Caribbean Court of Justice’s 2018 ruling in the case of McEwan vs the Attorney General of Guyana, in which the court found fault with the savings clause of that nation and held: “Law and society are dynamic, not static. A constitution must be read as a whole.”

Instead of following Commonwealth precedent, the London-based judges appeared to turn to the approach favoured by their brothers and sisters across the pond at the US Supreme Court where, only a few weeks ago, a leaked draft opinion on a pending abortion case stridently argued against judges interpreting laws in the name of liberty.

The UK judges are right – the TT legislature must act. It must act to abolish the Privy Council.


"Privy Council’s retrograde step"

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