TRINIDAD AND TOBAGO: PRIVY COUNCIL RULES MANDATORY DEATH PENALTY CONSTITUTIONAL

May 18, 2022:

The Privy Council has ruled that the mandatory sentence of death for murder in Trinidad and Tobago is constitutional, and only Parliament can reform and update the laws.
In the view of the law lords, the 1976 Constitution saves existing laws, including the mandatory death penalty, from constitutional challenge.
“The consequence of that is that the state of Trinidad and Tobago has a statutory rule which mandates the imposition of a sentence, which will often be disproportionate and unjust. The sentence is recognised internationally as cruel and unusual punishment. The state does not dispute that characterisation,” the Privy Council stated in a judgment delivered on 16 May 2022.
“The 1976 Constitution leaves it to the President, having received ministerial advice, to substitute a less severe form of punishment in an appropriate case by exercise of the powers in section 87 of the Constitution,” it added.
According to the ruling, the allocation of powers in the 1976 Constitution places on Parliament the burden of deciding when the existing laws which are protected by the savings clause should be amended or repealed to reflect changes in thinking about fundamental rights and freedoms and to accommodate changes in social and political values.
“The policy questions posed by the savings clause are not limited to the mandatory death penalty but apply also to other preserved laws which are inconsistent with the higher standards enshrined in section 4 of the 1976 Constitution,” the Privy Council ruled.
The law lords were asked to consider the constitutionality of the death penalty as the result of an appeal by murder convict Jay Chandler.
Chandler was sentenced to death by hanging in August 2011, and his conviction and sentenced upheld by the Court of Appeal in December 2013.
He was granted permission to appeal against his conviction to the Privy Council and sought unsuccessfully to have medical and psychiatric evidence admitted which had not been led at trial but which, he argued, tended to show that he might have had a defence of diminished responsibility at trial.
That appeal against conviction was dismissed in March 2018.
However, through his attorneys Edward Fitzgerald QC, Douglas Mendes SC, Rajiv Persad and Amanda Clift-Matthews, Chandler then appealed to the Privy Council challenging the constitutionality of the mandatory death sentence.
The case was heard in November 2021.
The primary constitutional question raised was whether the mandatory death penalty for murder is contrary to the Constitution adopted in 1976 when the state became a republic, on the ground that the 1976 Constitution required that the 1925 Act be modified to remove the mandatory death sentence for murder and to replace it with a discretionary death sentence. This discretion would allow the court to take account of the particular circumstances of the killing.
In its judgment, The Privy Council considered whether the 1976 Constitution prohibits Parliament from enacting a mandatory punishment to be inflicted on all persons who commit a particular crime.
“The answer is that it does not,” the Privy Council ruled.
However, the Law Lords commented “It is striking that there remains on the statute book a provision which, as the government accepts, is a cruel and unusual punishment because it mandates the death penalty without regard to the degree of culpability. Nonetheless, such a provision is not unconstitutional.”
The State was represented by attorneys Howard Stevens QC, Tom Poole QC, Fyard Hosein SC, and Hannah Fry.