Thursday 23rd June, 2005

 

Opinion

 
 
 
 
 
 
Sports Arena
Womanwise
Business Guardian
 
Letters
Online Community
Death Notices
 
Advertising
Classified Ads
Jobs in T&T
Contact Us
 
Archives
Privacy Policy
 
 
 

 

How the Privy Council misreads the T&T Constitution

Human rights wrongs

By Anthony Wilson

There is a widespread perception among local human rights lawyers and the Privy Council that the human rights clauses in the T&T Constitution are inconsistent with the mandatory death sentence.

In particular, in is felt in these circles, and perhaps others, that Sections 4 and 5 of the Constitution protect fundamental human rights and freedoms.

I would suggest that this is a fundamental misreading of our Constitution which has been propagated for so long that even the most highly trained constitutional minds probably believe it.

In the majority decision in the Matthew case, Lord Hoffman wrote:

“Their Lordships consider that for reasons similar to those given in Reyes v The Queen (2002) 2 AC 235 and Boyce and Joseph v The Queen, the mandatory death penalty is a cruel and unusual punishment and therefore inconsistent with Sections 4 (a) and 5 (2) (b) of the Constitution.”

Lord Nicholls, in the minority position in the Matthew case, wrote:

“The three countries (Barbados, Jamaica and T&T) with which these appeals are concerned have human rights values at the very forefront of their constitutions. Among the fundamental human rights expressly enshrined is prohibition of cruel and unusual punishment in Section 5 of the Constitution of Trinidad...”

The solution to this erroneous interpretation of the T&T Constitution is simple: read it.

The Constitution at Section 4 says in T&T there are fundamental human rights and freedoms including:

a) “The right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law.”

It seems to me that the way Section 4 (a) should be read, in relation to the right to life, is thus: “An individual has the right to life...and the right not to be deprived of life except by due process of law.”

Similarly, one can argue that the Constitution confers the right to enjoyment of property and the right not to be deprived of one’s property except by due process of law.

On a plain reading of Section 4 (a), it seems to me that one is entitled to infer that the State can deprive a citizen of his/her life if the State follows due process of law.

Just as, one presumes, the State can deprive someone of their property or liberty if it follows due process of law; pays an agreed upon compensation and makes arrangements for bail.

If one accepts that the State is empowered, through Section 4 (a), to deprive citizens of their liberty and property if it follows due process, how could one argue that it is “inconsistent” for the State to deprive citizens of their life if the State follows due process of law?

In fact, if one accepts the argument above, the ineluctable conclusion is that Section 4 might actually facilitate the mandatory death sentence.

I can hear the human rights lawyers saying that may be the literal meaning of the words but one should take the spirit of the Constitution to mean that life, liberty, security of the person and the enjoyment of property receive absolute protection.

I am not qualified to carry on that argument but I find it interesting and extremely relevant that Section 4 (a) is the only clause which provides a specific exception in the form of the words “except by due process of law.”

It may be argued that the ten other clauses provide absolute rights in Section 4—allowing the right to freedom of the press, freedom of thought and expression, freedom of movement etc without exception.

It must mean something that the only clause that provides the exception of due process of law is the one that deals with life, liberty, security and property.

On the issue of Section 5 (2) (a), the clause cited by the human rights lawyers and the Privy Council is that “Parliament may not...impose or authorise the imposition of cruel and unusual punishment or treatment.”

Section 5 (1) says that this may be done with a special majority, but that is not the point.

The point, it seems to me, is that Parliament is prevented from imposing or authorising the imposition of cruel and unusual treatment or punishment.

In other words, T&T cannot pass laws which allow arbitrary detention, imprisonment or exile as in 5 (2) (a) or any of the other rights in Section 5 unless it is done by the special majority outlined in Section 54 (which makes the bail bill almost unpassable in the current political environment).

But is there any evidence that the T&T Parliament has imposed or authorised the imposition of cruel and unusual treatment or punishment?

Even if one accepts that the mandatory death penalty is cruel and unusual, is there any evidence that the T&T Parliament has imposed or authorised the imposition of the mandatory death penalty?

One suspects the answer is no.

Rather, there is good evidence that T&T has merely acquired a pre-Independence law (the 1925 Offences Against the Person Act) and been allowed to maintain it by Section 6 (1) (a) which states that “nothing in Sections 4 and 5 shall invalidate an existing law.”

But even before one gets to Section 6, it seems to me that Sections 4 and 5 raise some hurdles that the human rights lawyers have to get over:

n Is there evidence that the State is about to deprive death row inmates of their lives without due process of law?

n Is it not a fact all death row inmates are constitutionally entitled to:

1) A finding by a magistrate at a preliminary inquiry that the person has a case to answer?

2) A high court trial before a jury of his/her peers?

3) An appeal to the Court of Appeal on the merits of the State’s case?

4) An appeal to the Privy Council on the merits of the State’s case?

5) An appeal to the Court of Appeal on constitutional grounds?

6) An appeal to the Privy Council on constitutional grounds?

7) An appeal to the Mercy Committee?

Is this not due process?

If an individual has the right not to be deprived of their life except by due process of law and the State ensures that the individual has received due process, what’s the problem?

Having said all of that, I need to make it clear that I, personally, am leaning toward the abolition of hanging and regret that this country has reached a position where many feel it necessary.

Anthony Wilson is the Guardian Business Editor

©2004-2005 Trinidad Publishing Company Limited

Designed by: Randall Rajkumar-Maharaj · Updated daily by: Sheahan Farrell