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The death penalty legal landscape

Sunday, January 25, 2015

It is a fact of political life in this country that whenever a government is confronted with a sudden escalation in murders, or an unfavourable end-of-year scorecard in the murder rate column, an official call for recourse to the gallows is renewed. It is worse on the eve of an election.

So, predictably, the dizzying toll of 407 murders in 2014, even if not a record, and the spate of murders at the start of the new year, produced the all too predictable rallying cry by the Prime Minister, the Attorney General and the political leader of the COP to amend the Constitution to “bring back hangings.” So, we are going to have a debate about the death penalty once again.

It is therefore probably a good idea to explore the legal facts concerning the death penalty so that any debate that we do have can be informed and, hopefully, rational. 

The first fact to note is that hanging did not go anywhere. It is still the only penalty which can be imposed upon a person convicted of murder in the sense that, when a jury returns a verdict of guilty of murder, the judge presiding at the trial has no choice but to impose the sentence of death by hanging, irrespective of any mitigating factors which might suggest that life imprisonment is a more appropriate sentence.  

Not all murders warrant the death penalty. Some are more egregious than others and judges all over the world, who have the power to do so, regularly impose prison terms instead of the ultimate penalty.

It is precisely because not all murderers deserve death, that it has been held universally that the mandatory death penalty violates constitutional rights. 

It has survived constitutional challenge in T&T only because we have a clause in our Constitution which immunises all pre-independence laws from invalidation because they happen to be inconsistent with our constitutional rights. Not so in all other Commonwealth Caribbean countries where the mandatory death penalty has been abolished, or, in the case of Barbados, there is an undertaking to get rid of it. So we stand alone in the region on this score.

Furthermore, because we still have the mandatory death penalty on our statute books, we stand in violation of our obligations under international human rights treaties. The Inter-American Court of Human Rights long ago ordered us to abolish the mandatory death penalty, but we have not complied.

Now, the fact that a judge must impose the death penalty does not mean that it can be carried out right away.  The law, including especially the Constitution, imposes certain mandatory steps which must be taken before an execution can take place.  For those who are anxious to carry out the death penalty, these are referred to as ‘obstacles.’

For the convicted murderer and human rights supporters, they are referred to as ‘protections.’  One person’s meat, is another person’s poison. But, however you view it, it is the law. The first such protection is the right of appeal to the Court of Appeal and the Privy Council. An execution cannot be carried out until the appellate process is complete. No one would want to change that.

Secondly, the Constitution prohibits the carrying out of the death sentence while the convicted man has a petition pending before the Inter-American Commission on Human Rights. A convict could previously petition the Inter-American Court (as opposed to the Commission) on Human Rights and the United Nations Human Rights Commission, but we have renounced a number of the relevant treaties which permit complaints to be made to these bodies, precisely because they were thought to impede the carrying out of the death penalty.

This was the dubious achievement of former attorney general, Ramesh Lawrence Maharaj.  Now, convicted murderers have access to the Inter-American Commission only to complain that rights provided for under the Declaration of the Rights of Man have been infringed.

Next, an execution cannot be carried out until the Mercy Committee has considered the convicted man’s case and decided whether he should be put to death. This is an important protection in recognition of the universal principle that not all people who are convicted of murder deserve to die.

Indeed, over the more than 50 years of our independence, the Mercy Committee has frequently recommended to His Excellency the President that convicted murderers be pardoned and the death sentence commuted to life imprisonment.

For this reason, among others, the Constitution has been interpreted as entitling a condemned man to be given an opportunity to persuade the Mercy Committee that he should be pardoned. In the course of the hearing before the committee, the condemned man is entitled to put before the Mercy Committee any information that he considers might tilt the balance in his favour.

That would include any favourable ruling he might have obtained from the Inter-American Commission that his rights under the Declaration of the Rights of Man have been infringed.

It is only after the Mercy Committee has rejected the condemned man’s petition for mercy that the death sentence can be carried out. 

The last protection is that an execution which is to be carried out more than five years after conviction, is presumed to contravene the condemned man’s constitutional rights, unless the State demonstrates that there is some good reason for the delay. It has been declared by our highest court that if the State wishes to carry out the sentence of death it must do so without undue delay.

This is the legal landscape in which the death penalty is carried out in this country. It is against this backdrop that the Government’s proposal to amend the Constitution to “bring back hanging” should be assessed. This is an exercise to which I will return next week.


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