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Is death penalty serious?

Decision of the constitutional court, that the death sentence of at least 52 convicted murderers should be commuted to life imprisonment, will provide more fodder to the cynics and critics, who say that no murderer can or will be executed in Trinidad and Tobago.

It is a fact that the last time someone was executed here was in 1999. Everyone knows that was during the tenure of the UNC (from 1995-2001) and the reign (so to speak) of Ramesh Lawrence Maharaj as Attorney General.

When asked for his comments on Justice Nolan Bereaux’ ruling, Mr Maharaj is reported to have stated that “punishment is an important factor in the fight against crime,” and he felt the ruling would be a drawback in the fight against crime.

Mr Maharaj may have put his finger squarely on what must be the concern of the Government on the release from death row of the majority of convicted murderers in the country, at a time when the murder rate is at an all-time high.

In 1999, it was fewer than 100. This year, with more or less the same population, we will certainly pass 400.

Despite these concerns, however, one wonders how is it that the State has delayed so long in actually commuting the sentences of these convicts.

It was since 2004 that the Privy Council, which still remains our highest court, had recommended (they do not order) that virtually all the sentences of death row prisoners at that time be commuted.

The number then was about 90. They include all of those who were beneficiaries of Justice Bereaux’ order.

In order to appreciate fully what occurred, one must consider the Privy Council’s judgment in Charles Mathew.

This was a case where the T&T Government had challenged a previous decision of the PC in 2003. That was the T&T case of Balkissoon Roodal, in which it was held that the mandatory death penalty was unconstitutional, and so no person then on death row could be executed.

In rejecting this and holding that the mandatory sentence of death in T&T was good law, the PC (sitting with nine judges) said:

“For these reasons Their Lordships consider that Roodal was wrongly decided...

“That, nevertheless, leaves a serious problem. The appellant in this appeal, Mr Matthew, was given to understand in consequence of Roodal that the question of whether he should be sentenced to death would now be considered by a judge.

“Mr Roodal himself is no doubt awaiting a similar hearing, and there may be others in the same position. But the effect of Their Lordships’ decision today is that a judge would have no discretion to change a death sentence that has already been imposed according to law.

“Such a re-sentencing cannot, therefore, take place.

“On the other hand, simply to leave the sentence to be carried out, subject to the decision of the President, appears to Their Lordships unfair to Mr Matthew.

“He has been given the expectation of a review of his sentence, additional to the possibility of presidential commutation, of which he is now deprived.

“Their Lordships think that it would be a cruel punishment for him to be executed when that possibility has been officially communicated to him and then been taken away.

“There is an analogy with Pratt and Morgan v Attorney-General for Jamaica [1994] 2 AC 1. In that case, the board said (P 33) that while the death penalty itself was not inhuman punishment, ‘to execute these men now, after holding them in an agony of suspense after so many years,’ would be.

“The same is true of executing them after informing them (at the time correctly) that the law would give them the opportunity to persuade a judge to impose a lesser sentence and then denying them that opportunity.

“In Pratt and Morgan, Their Lordships exercised the power vested in the Supreme Court of Jamaica by the constitution to make ‘such orders—as it may consider appropriate for the purpose of enforcing—any of the provisions [relating to human rights and fundamental freedoms]’ by allowing the appeal and commuting the death sentence to life imprisonment.

“There is a similar power in section 14(2) of the Constitution of Trinidad and Tobago. Pursuant to this power, Their Lordships will allow the appeal, set aside the sentence of death, and impose a sentence of life imprisonment.

In Their Lordships’ opinion, the same considerations apply to anyone else sentenced to death and awaiting execution at the date of this judgment...

The same considerations do not apply to people convicted and sentenced to death after the date of this judgment, even though they may have been awaiting trial at the time of the Roodal decision.”

From the above it is all too clear that the PC was clear that all people on Death Row as at July 8, 2004 (the date of the judgment) were entitled to have their death sentences set aside and a life sentence (at most substituted). It seems to me that the State should have done this since 2004 rather than be forced to concede in a court of law to what was evident four years ago.

It may be that the authorities did not want a message being sent that convicted murderers would not pay the price of their crime.

If this was the reason, it made no sense, because there was no move to execute any of them in the last four years.

Further, how does it look now at the time when the escalation of violent crime is at its worst for the State to be ordered to take these prisoners off death row?

Government needs to make up its mind what it intends in relation to the death penalty and whatever it is—do something.