the Privy Council misreads the T&T Constitution
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
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
In the majority decision in the Matthew case, Lord Hoffman
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,
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 ones 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
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 4allowing 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
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
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 States
4) An appeal to the Privy Council on the merits of the States
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, whats 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