The United Kingdom-based Privy Council has been invited to take the lead the Caribbean Court of Justice (CCJ) did with Barbados and declare this country’s mandatory death penalty for murder as unconstitutional.
Lawyers representing convicted murderer Jay Chandler made the call yesterday morning as they presented their submissions before nine Law Lords of the Privy Council in his landmark appeal over the issue.
In the appeal is being asked to consider the continued applicability of Section 6 of this country’s Constitution, which “saves” or insulates laws passed prior to Independence such as the death penalty and public health ordinances, being used in the COVID-19 pandemic, from review.
Chandler’s attorneys repeated pointed to a 2018 ruling in a case from Barbados in which the CCJ, as that country’s final appellate court, said that the death penalty violated rights under its Constitution, which has a similar savings clause as T&T.
Presenting submissions, Chandler’s lawyer Douglas Mendes, SC, pointed out that the CCJ took the decision, which contradicts the Privy Council’s view on the issue in several regional cases from almost two decades ago, although the savings clause in the Barbados Constitution is “more expressive”.
Mendes noted that when the Privy Council last considered the issue, it delivered a majority decision in which several eminent Law Lords dissented as they agreed with the position eventually adopted by the CCJ to ensure that Barbados was in conformity with its international human rights obligations.
While Mendes admitted that if successful the case would set a precedent in relation to other local constitutional cases on modern human rights including recent challenges to the country’s sedition and buggery laws, he questioned whether such an outcome was negative.
“It will ensure that T&T citizens get all the rights and freedoms guaranteed under the Constitution. That is a positive thing by any measure,” Mendes said.
Mendes noted that there were no issues in Barbados after the CCJ gave its ruling almost three years ago.
“There has been no uproar. The effect of overturning this is not doom and gloom,” Mendes said.
British Queen’s Counsel Edward Fitzgerald, who also represents Chandler, suggested that even if the Privy Council is not inclined to bypass the savings clause and rule that the death penalty constitutes cruel and inhumane punishment, it could still invalidate the death penalty.
Fitzgerald stated that the mandatory penalty of murder, as prescribed by Section 4 of the Offences Against The Person Act, also breached the doctrine of the separation of powers as Parliament infringed the Judiciary’s jurisdiction to decide a sentence based on the unique circumstances of a crime.
“If the legislature imposes the sentence it is usurping a judicial function,” Fitzgerald said.
As he began to respond to the submissions, Senior Counsel Fyard Hosein, who represents the State, claimed that the CCJ’s ruling on the issue is not binding on T&T.
He noted that T&T is not among the four Caricom countries, who have made the CCJ their final appellate court, although the court’s headquarters is based in Port-of-Spain.
Besides Barbados, the other countries are Belize, Guyana and Dominica.
“That is a deliberate legislative choice by T&T,” he said.
Hosein was quizzed by the appeal board over whether Parliament had considered the effect of the mandatory penalty on its international human rights obligations.
“The legislature has not done it. I don’t know if it has not been thought about,” Hosein said.
Hosein noted that while Chandler’s legal team were seeking to use regional examples, such was inappropriate as each country’s society and issues are unique.
“Each country is a sovereign democratic state...Democracy means different things to different people,” Hosein said.
Hosein also disagreed over the strength of this country’s savings clause compared to regional countries as he claimed that it is the most “comprehensive”.
While the death penalty remains law, the sentence has not been carried out since late July 1999, when Anthony Briggs was executed for bludgeoning a taxi driver to death during a botched robbery seven years earlier.
In 2011, Chandler was convicted of murdering Kern Phillip, a fellow remand prisoner at the Golden Grove Prison in Arouca in 2004.
Chandler, 43, was accused of stabbing Phillip with a makeshift knife during airing time in the communal area of the prison.
Chandler lost his appeal in the Court of Appeal and in 2018 the Privy Council dismissed his final appeal, which sought to have fresh medical evidence of his mental state at the time of the crime admitted.
The ruling in the case was a majority decision with two of the five judges on the panel dissenting as they felt that case should be remitted to the local court to decide whether he should have benefited from the defense of diminished responsibility.
Like most convicted of murder over the past two decades, Chandler benefited from the Privy Council’s 1993 ruling in the Jamaican case of Pratt and Moran, in which it ruled that the death penalty cannot be carried out if they are not executed within five years of being convicted and sentenced.
Chandler is also being represented by Rajiv Persad and Amanda Clift-Matthews, while Howard Stevens, QC, Tom Poole, QC, and Hannah Fry are also representing the State.
The State is scheduled to continue its submissions when the case resumes this morning.
