May 19, 2013

The CCJ And The Death Penalty

Sunday, May 19, 2013
Source: Trinidad Guardian

Last week in the Senate an interesting exchange took place between Attorney General Anand Ramlogan and some PNM senators during the period set aside for questions to ministers. The essence of the argument was that the Attorney General indicated that he could prepare a draft bill within 48 hours on the death penalty. 

He then challenged the PNM senators to state for the record whether they would be willing to support the abolition of appeals to the Privy Council on criminal matters only and to substitute the Caribbean Court of Justice (CCJ) as the final court of appeal for criminal matters only. There was no response from the PNM senators on this point and so the issue ended in a stalemate.  

However, what emerged was that the Government is still committed to the idea of having the Judicial Committee of the Privy Council replaced by the CCJ as the final court of appeal for criminal matters, while simultaneously moving forward with an amendment to the Constitution to oust the jurisdiction of the court from challenging the constitutionality of the death penalty.

In order to accomplish all of this, such legislation would require a three-fourths majority in the House and a two-thirds majority in the Senate. The last time that the capital punishment legislation was brought to the House, in February 2011, the Opposition PNM did not support it and the bill died at that stage.

The matter was recently revived by the Prime Minister when she indicated at a UNC Monday Night Forum in Barataria some weeks ago that she was prepared to bring that legislation back to Parliament. The Attorney General has now revived the earlier proposal for the substitution of criminal jurisdiction of the Privy Council with the CCJ. The heart of the story lies in the approach that has been adopted by the Privy Council over the years in respect of the death penalty in the Commonwealth Caribbean. 

Since it was established that the death penalty is indeed a proper form of constitutional punishment in the case of De Freitas v Benny (1976)AC 239 where Michael de Freitas, also known as Michael Abdul Malik, had his death sentence confirmed on the ground that it was not “cruel and unusual punishment” to hang him for the murder of British socialite Gale Ann Benson at Christina Gardens in Arima, there have been twists and turns over the years. 

Coming out of that same murder, Stanley Abbott had had his death sentence confirmed in the case of Abbott v Attorney General (1979)1WLR 1342 where Lord Diplock set aside the issue of delay of execution measured in months, owing to the transition of T&T from monarchical to republican status in 1976. However, he left open the issue of delay of execution measured in years and that would prove to be a game-changer for the death-penalty debate in years to come.

In 1982, the Privy Council divided three-two in favour of carrying out the death penalty in the Jamaican case of Riley and Others v Attorney General (1982)35 WIR 279 whereby the issue of delay of execution measured in years was not overcome by the human-rights issue of delay of execution rendering invalid the actual execution itself thereby making it “inhuman and degrading punishment.”

Lords Diplock, Hailsham and Bridge were in the majority, while Lords Scarman and Brightman were in the minority. Some 11 years later, in the landmark case of Pratt and Another v Attorney General of Jamaica (1993)43 WIR 340 the Privy Council accepted the argument of delay of execution as rendering the death sentence unconstitutional if it is not carried out within five years of the sentencing date.

By this time, Lords Diplock and Hailsham had left the bench and some less-conservative judges had been appointed to the British House of Lords as Law Lords. This ushered in an era of abolitionist judges as members of judicial panels who were prepared to adopt an approach that placed them at loggerheads with Commonwealth Caribbean governments on the issue of the death penalty.

Several cases were quite controversially decided that raised issues of whether this was “judicial politics” at work as opposed to the application of existing law. One of them was the Guerra v Baptiste case (1996)1 AC 397 from T&T, which admonished the State for trying to carry out the execution of Lincoln Guerra too swiftly for the murder of Leslie Ann Girod and her baby in Wallerfield.

By 2000, the Jamaican case of Lewis v Attorney General (2001)2 AC 50 constructively abolished the death penalty in the region when the Privy Council held that the decisions of the Mercy Committee were now reviewable, which overturned the ruling in De Freitas v Benny, that states must now await the responses of international human-rights bodies on petitions of reprieve before carrying out executions, and that prison conditions must be taken into account.

Other controversies have arisen over mandatory and discretionary sentencing. However, the death penalty remains in limbo, with the Privy Council precedents holding firm.