A court in London is being asked to rule on Trinidad and Tobago’s mandatory death penalty for murder, with lawyers for a man sentenced to death arguing that the law is arbitrary and unconstitutional.

Every person convicted of murder in Trinidad and Tobago ‘shall suffer death’ under section 4 of the Offences Against the Person Act 1925, although no one has been executed in the Caribbean nation since 1999.

Jay Chandler, who was sentenced to death in 2011, argues that the law ‘arbitrarily authorises the imposition of the severest of sentences’ without giving those convicted the opportunity to persuade the court not to impose the death penalty, in breach of rights under the Trinidadian constitution.

However, the Judicial Committee of the Privy Council ruled in 2004 that a ‘savings clause’ in the constitution prevents pre-existing laws from being challenged for incompatibility with the constitution.

In Matthew v Trinidad and Tobago, the court unanimously held that the mandatory death penalty is a ‘cruel and unusual punishment’ but ruled, by a 5-4 majority, that section 4 could not be invalidated.

‘The effect of the ruling in Matthew was that the court was powerless under the constitution to remedy this admitted injustice because the savings clause protects all existing laws from challenge for inconsistency [with the constitution],’ Chandler’s barrister Edward Fitzgerald QC said today.

Fitzgerald told a nine-justice panel of the privy council, sitting in the Supreme Court’s premises, that ‘developments in the Caribbean Court of Justice … now justify the board in reviewing and reversing the previous decision of the board in Matthew’.

Three years ago, in Nervais v Barbados the CCJ ruled Barbados’ mandatory death penalty violated constitutional rights, which Fitzgerald said left Trinidad and Tobago as the last country in the English-speaking Caribbean to retain such a law.
He said: ‘There is no dispute … that, if the power of modification is available, it can be modified – the words “shall suffer death” can be modified to “may suffer death”.’

But he said the question for the court was whether the savings clause ‘prevents the court from modifying in the way it has in many other Caribbean jurisdictions, [such as] Belize, throughout the eastern Caribbean, the Bahamas and Jamaica’.

In his written case, Howard Stevens QC, for the attorney general of Trinidad and Tobago, said Chandler’s argument ‘opens the door to the review and modification of all “existing laws” despite the clear terms’ of the constitution, which could ‘undermine the rule of law and undermine the good government and due administration of Trinidad and Tobago’.

Full reporting by Law Society Gazette

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