Last Monday's vote in the House of Representatives on the bill to amend the Constitution to permit the unimpeded enforcement of the death penalty had a dramatic outcome.The Opposition PNM did not support the bill and voted against it, thereby denying the Government the three-quarters majority that it required in order to have the measure passed.The bill was seeking to amend Section 6 of the Constitution to create an exception for Capital Offences out of the section that currently provides for "Exceptions for Existing Law". The death penalty is the law of the land by virtue of the fact that it is existing law, having been in force prior to Trinidad and Tobago becoming a republic. This sub-division of Section 6 attempted to cover all of the bases covered by the Judicial Committee of the Privy Council in their various judgements on the death penalty in the post-Pratt and Morgan era from 1993 onwards.
Most of the post-Pratt and Morgan era arguments had been covered by the proposed amendments to Section 6 of the Constitution. There was also a new division of charges for murder into three categories that could cater for the possibility of the State not seeking the death sentence, depending upon the nature of the evidence to be led against the accused. Insofar as the bill sought to amend Section 6 of the Constitution, all that was required was a two-thirds majority of the House of Representatives. However, the bill also sought to deal with issues raised in the Jamaican case of Lewis and Others v the Attorney General of Jamaica and Another (Privy Council Appeals Nos 60, 65 and 69 of 1999 and Privy Council Appeal No 10 of 2000).
The issue of permitting judicial review of the decisions of the Mercy Committee in tendering advice to the relevant Minister responsible for advising the Head of State-on whether to exercise clemency or to carry out the death penalty in the Bahamas and in Trinidad and Tobago-was squeezed together with the powers of the Jamaican Privy Council to advise the Governor General of Jamaica on the exercise of the same powers. The main difference was that in Jamaica there was no intervening Minister who could exercise a discretion before tendering such advice.
The "one-size-fits-all" approach adopted by the Privy Council in this case on how the Minister's required consideration of the non-binding decision of the Mercy Committee in Trinidad and Tobago and the Bahamas before the final ministerial advice is tendered to the Head of State, ought to be treated alongside the final advice tendered by the Jamaican Privy Council to the Jamaican Governor General was not unanimous. The majority decision of the board delivered by Lord Slynn of Hadley overturned earlier decisions of the Privy Council that upheld the denial of judicial review of Mercy Committee deliberations as expressed in Reckley v Minister of Public Safety and Immigration No 2 (1996) AC 527, when the Board decided not to depart from its earlier decision in de Freitas v Benny (1976) AC 239. This was challenged by the dissenting judgement of Lord Hoffman who said:
"I entirely accept that the Board is not, as a matter of law, bound by its previous decisions. And I respect the conviction of the majority that this is an occasion to exercise the Board's power to overrule the earlier cases. But I think it is a mistake. The fact that the Board has the power to depart from earlier decisions does not mean that there are no principles which should guide it in deciding whether to do so....The fact that the Supreme Court of the United States sits in banc means that, subject to infrequent changes in membership, there is a natural continuity in its views.
But the board hearing an appeal consists of five members drawn from the 12 Law Lords, occasional visiting judges from Commonwealth countries (though regrettably seldom from the Caribbean) and a number of retired Lords Justices of Appeal. It is possible for a board to be constituted without anyone who was party to a recent governing precedent or to be composed largely of members who were previously in dissenting minorities."
Essentially, the board of the Privy Council changes for every case so that the principles that govern these judgements keep changing from case to case, unlike the United States Supreme Court which remains largely static with occasional changes. In trying to craft the bill to amend the Constitution, the Government included an amendment to Section 89 which requires a three-quarters majority in order to address the decision in the Lewis case on the reversal of earlier judgements which had denied judicial review of the Mercy Committee.
If this bill is to come back, it might be necessary for the inclusion of the original categorisation of the three classes of murder without the amendment to Section 89 which will reduce the majority required from three-fourths to two-thirds. Otherwise, it would seem that the death penalty has been hanged.