—John Knechtle, The University of the West Indies, St. Augustine, Trinidad
The sentence of death has been the mandatory penalty for murder in Trinidad and Tobago since independence in 1962 and with the country consistently ranking in the top ten percent for homicides per capita around the world, public support for the death penalty remains strong. Section 4 of the Offences against the Person Act 1925 provides that every person convicted of murder shall suffer death.
However, despite the mandatory nature of the death penalty in Trinidad and Tobago, nobody has been executed in the country since 1999.[1] Nevertheless, in January of this year, the Attorney-General of Trinidad and Tobago wrote a letter to the opposition leader informing the opposition leader of the Government’s intention to reintroduce the Constitutional (Amendment) (Capital Offences) Bill 2015 to operationalise the death penalty in Trinidad and Tobago.[2] Exactly what the outcome of this letter will be remains to be seen, but it appears that Trinidad and Tobago is set for another chapter in its efforts to implement the death penalty.
The controversy surrounding the death penalty, both socially and legally, cannot be understated. Trinidad and Tobago, and by extension the Caribbean, has witnessed a wave of judicial activism on the part of its court of final appeal, the Judicial Committee of the Privy Council (JCPC) located in the UK, geared towards dismantling the death penalty in the Caribbean.
In 1993, the JCPC laid down a landmark decision in the case of Pratt and Morgan v Attorney-General of Jamaica.[3] It held that a State that wished to retain capital punishment had to ensure that execution followed as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve. Lord Griffiths, giving the decision of the Board, stated that “in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute inhuman or degrading punishment or other treatment.”[4] Given the length of time involved in the appellate process in Trinidad and Tobago, this time limit has represented a significant practical hurdle to the implementation of the death penalty.
The mandatory nature of the death penalty has also been challenged, initially with some success. In Roodal v State of Trinidad and Tobago,[5] the Privy Council held, 3-2, that the mandatory sentence of death for murder was unconstitutional. The Board explained that in requiring sentence of death to be passed on all defendants convicted of murder, without any consideration of the culpability and circumstances of the individual defendant, section 4 of the Offences against the Person Act violated the prohibition in section 5(2)(b) of the Constitution on the imposition of cruel and unusual treatment or punishment.[6]
However, the following year, the Privy Council reversed itself in Matthew v State of Trinidad and Tobago.[7] The appellant was convicted of murder and sentenced to death under section 4 of the Offences against the Person Act 1925. He appealed on the ground that the mandatory death penalty was incompatible with his right to life under section 4 of the Constitution and his right under section 5 of the Constitution not to be subjected to cruel and unusual punishment, and that section 4 of the Offences against the Person Act should be interpreted as imposing a discretionary death sentence. The Board held, this time 5-4, that section 4 of the Offences against the Person Act was an “existing law” for the purposes of the savings clause in section 6(1) of the Constitution and was thus preserved from constitutional challenge; that, therefore, although it infringed the right to life under section 4 of the Constitution and was a cruel and unusual punishment under section 5, it could not be invalidated or rendered void under section 2 to the extent of any inconsistency with the Constitution; and that, accordingly, the mandatory death penalty imposed on the appellant was lawful and valid.
The JCPC and the Caribbean Court of Justice (court of final appeal for Barbados, Belize, Guyana and Dominica) have creatively used international law to block the implementation of the death penalty. Although the general rule is that, even if ratified, an international treaty forms no part of domestic law unless specifically incorporated by legislation,[8] the Privy Council, as well as the Caribbean Court of Justice, have found ways of applying international law “through the back door” thereby allowing international law to affect the implement the death penalty in the region. In Thomas v Baptiste,[9] the Privy Council held that, although the terms of the American Convention on Human Rights had not been incorporated into domestic legislation, by ratifying a treaty which provided for individual access to an international body, the Government made that process for the time being part of the domestic criminal justice system and thereby temporarily at least extended the scope of the due process clause in the Constitution.[10] Thus, the execution of the appellants was stayed until the Inter-American Commission on Human Rights had determined their petitions and the rulings of the commission and the Inter-American Court of Human Rights had been considered by the relevant authorities of Trinidad and Tobago.
Similarly, in Lewis v Attorney-General of Jamaica,[11] the Privy Council held that by reason of the accession of Jamaica to international conventions and of the fact of allowing individual petitions to international human rights bodies (albeit the right to petition such bodies had not been incorporated into domestic law), the appellants on petitioning the Privy Council of Jamaica for mercy were entitled to the protection of the law in accordance with s 13 of the Constitution, and thereby to the right to complete the process of petitioning a human rights body and for the report of that body to be received by the Privy Council of Jamaica for consideration before it dealt with the petitions for mercy, and to the staying of their executions until the reports had been received and considered.
The Caribbean Court of Justice issued a similar decision in 2006. In AG of Barbados v Joseph and Boyce,[12] the CCJ held that the ratification of the American Convention on Human Rights by Barbados (albeit not incorporated into national law), coupled with positive statements by representatives of the executive arm of Government evincing an intention or desire on the part of the executive to abide by the Convention, and the practice of the Government in giving condemned persons an opportunity to have petitions to international human rights bodies processed before proceeding to the execution of their sentences, had given the respondents a legitimate expectation that the State would not execute them without allowing a reasonable time within which the proceedings under the Convention could be completed. In the alternative (per Wit J), States were bound to give effect to treaties which they had ratified in good faith, even if the treaties were not formally incorporated into national law, and such obligation precluded the State from pre-empting the outcome of human rights petitions to international bodies by executive action.
The three decisions mentioned, Thomas, Lewis and Joseph and Boyce, are quite concerning decisions. This is so because these cases have set the precedent that unincorporated international treaties may be directly enforceable in domestic law regardless of whether or not a country is dualist or monist.
This judicial approach to the death penalty has caused Trinidad to withdraw from international conventions. In 1998, Trinidad and Tobago withdrew from the American Convention on Human Rights, citing the inability of the Inter-American Commission to deal with applications in respect of capital cases expeditiously.[13] In May 1998, Trinidad and Tobago withdrew from the First Optional Protocol to the ICCPR because it felt that prisoners who had been sentenced to death were abusing the procedure which allowed for petitions to the Human Rights Committee.[14]
However, in August 1998, Trinidad and Tobago re-acceded to the Optional Protocol with a reservation to article 1 thereof to the effect that the Human Rights Committee shall not be competent to receive and consider communications relating to any prisoner who is under sentence of death in respect of any matter relating to his prosecution, his detention, his trial, his conviction, his sentence or the carrying out of the death sentence on him and any matter connected therewith.[15] In Kennedy v Trinidad and Tobago,[16] the Human Rights Committee ruled that this reservation was incompatible with the object and purpose of the Optional Protocol. The Committee stated that it could not accept a reservation which singled out a certain group of individuals for lesser procedural protection than that which was enjoyed by the rest of the population. Trinidad then denounced the Optional Protocol for a second time in 2000.[17] Trinidad is not a party to the Death Penalty Protocol of the American Convention on Human Rights.
In 2011, the current government of Trinidad and Tobago sought to amend the Constitution in relation to the implementation of the death penalty. The Constitution (Amendment)(Capital Offences) Bill 2011 was introduced before Parliament to address the concerns of the JCPC regarding the mandatory nature of the death penalty. Clause 4 of the Bill pertained to the creation of the categories of murder 1, 2 and 3 (similar to first, second, and third degree murder in the U.S.), the mandatory imposition of the death sentence in relation to murder 1, the circumstances in which the death sentence or life imprisonment may be imposed for murder 2 and other matters connected thereto.[18] Clause 5 of the Bill sought to make amendments relating to the procedure concerning pardon and appeals.[19] However, the Bill was defeated with 29 votes for and 11 against (the Bill needed 31 votes for to be passed).[20] Whether the Bill is in fact re-introduced in 2015, and whether it can be passed in an election year when cooperation between the leading parties is strained, remains to be seen.
Suggested Citation: John Knechtle, An Update on the Death Penalty in Trinidad & Tobago, Int’l J. Const. L. Blog, Mar. 27, 2015, at: http://www.iconnectblog.com/2015/03/an-update-on-the-death-penalty-in-trinidad-tobago
[1] Death Penalty Worldwide – Trinidad and Tobago <http://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Trinidad+and+Tobago> accessed 29 January 2015.
[2] Renuka Singh, ‘PNM Supports Death Penalty… but Rowley upset as PP uses it as a political tool’ The Guardian (11 January 2015) <http://www.guardian.co.tt/news/2015-01-11/pnm-supports-death-penalty> accessed 29 January 2015.
[3] [1993] 4 All ER 769.
[4] Ibid 788.
[5] [2005] 1 AC 328.
[6] Ibid 328.
[7] [2005] 1 AC 433.
[8] AG of Barbados v Joseph and Boyce (2006) 69 WIR 104, 134.
[9] [2000] 2 AC 1.
[10] Ibid para 27.
[11] (2000) 57 WIR 275.
[12] (2006) 69 WIR 104.
[13] American Convention on Human Rights “Pact of San Jose, Cosa Rica” (B-32) – Declarations/Reservations/Denunciations/Withdraws <https://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights_sign.htm#Trinidad and Tobago> accessed 30 January 2015.
[14] Anthony Aust, Handbook of International Law (2nd edition, Cambridge University Press 2010), 98.
[15] Optional Protocol to the International Covenant on Civil and Political Rights <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-5&chapter=4&lang=en#EndDec> accessed 31 January 2015.
[16] Rawle Kennedy v. Trinidad and Tobago, Communication No. 845, U.N. Doc. CCPR/C/67/D/845/1999 (31 December 1999).
[17] See footnote 15.
[18] The Constitution (Amendment)(Capital Offences) Bill 2011, Explanatory Note.
[19] Ibid.
[20] <http://www.ttparliament.org/publications.php?mid=28&id=588> accessed 31 January 2015.
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