Derek Achong
The United Kingdom-based Privy Council has ruled that only Parliament can remove the death penalty as the mandatory sentence for murder.
Delivering a judgment, a short while ago, nine Law Lords of the Privy Council dismissed a novel constitutional challenge over the death penalty brought by Jay Chandler, a man convicted of murdering a fellow remand prisoner in 2004.
The Privy Council ruled that although seemingly in breach of constitutional fundamental rights and protections, the death penalty was not unconstitutional as it is protected by the savings clause under Section 6 of the Constitution, which "saves" or insulates laws passed prior to 1976 from review.
It said: "It is striking that there remains on the statute book a provision which, as the government accepts, is a cruel and unusual punishment because it mandates the death penalty without regard to the degree of culpability. Nonetheless, such a provision is not unconstitutional."
The Privy Council noted that changing the position was within the sole remit of Parliament.
"The allocation of powers in the 1976 Constitution places on Parliament the burden of deciding when the existing laws which are protected by the savings clause should be amended or repealed to reflect changes in thinking about fundamental rights and freedoms and to accommodate changes in social and political values," it said.
It noted that its decision on the validity of the savings clause may potentially affect other pending constitutional cases over human rights.
The cases include former Sanatan Dharma Maha Sabha (SDMS) secretary-general Sat Maharaj's lawsuit over sedition laws, which is being appealed to the Privy Council, and LGBT+ activist Jason Jones' lawsuit over homophobic buggery laws, which is before the Court of Appeal.
It is also likely to be considered in the upcoming Privy Council appeal in the case of former murder accused Akili Charles over the ability of judicial officers to consider bail for murders charged with murder, which was upheld by the local Court of Appeal in February.
However, the aforementioned cases were decided on other grounds and on the basis that the savings clause was upheld.
The Privy Council also delivered its judgment in a separate case brought by murder accused Naresh Boodram.
In that case, the State had challenged the ruling of the Court of Appeal over whether automatic life sentences should be given to murder convicts, who cannot be executed due to delays in their appeals.
The Court of Appeal had ruled those murder convicts, who benefit from the Privy Council's well-known 1994 ruling in the Jamaican case of Pratt and Morgan, in which it ruled that the mandatory death penalty for murder would be cruel and inhumane punishment if it was not be carried out within five years of conviction, should receive defined sentences upon commutation.
The Privy Council dismissed the State's appeal on the issue as it ruled that the local Court of Appeal was correct in its reasoning.