Last year the Opposition PNM did not join the Government in passing the Constitution (Amendment) (Capital Offences) Bill 2011. They had indicated during the debate that the Bill, which sought the separation of murder into three categories for which different penalties between hanging and life imprisonment could be imposed, was flawed. The debate about this matter has flared up in the public domain in more recent times following the excessive number of murders that were committed during the month of January which has exceeded the number of days in the month. There continues to be a school of thought that argues that the essence of the penalty for murder should be based on revenge and that the only appropriate penalty is death. Another school of thought argues that there may be extenuating circumstances attached to the death of someone and that a person accused of such a murder should not suffer death, but rather should have their liberty denied to them for the rest of their natural lives.
Given the high emotions being expressed on the death penalty, the majority of public opinion is seeking to have a definitive means by which there could be a strong and measured response by the State. The Government had one disappointment last year in their failure to get the required three-fourths majority in the House of Representatives. Once again, they will have to manage the differing views within their ranks by going to Parliament with a Bill that could include compromises to satisfy the Opposition as well as the anti-death penalty lobby. However, the Opposition PNM gets to call the shots on any such Bill seeing that a three-quarters majority is required (32 of the 42 MPs seeing that the Speaker must also be counted because he has been appointed from outside the House). The Opposition got the Government the last time to grant them some of their suggested amendments to the Bill in order to treat murder as a single offence and not seek to have three categories for it with differing penalties.
However, the central issue remains that any Government of this country will have problems implementing the death penalty because, although it is the law of the land, it has been heavily circumscribed by a variety of court judgements that have upheld the following principles: (i) delay of execution renders the death penalty inhumane and cruel punishment and a five-year time limit was imposed in 1993; (ii) poor prison conditions can render the death penalty inhumane and cruel punishment; (iii) the period between final sentencing and reading the death warrant can render the punishment cruel and unusual if a prescribed period is not followed; (iv) the Privy Council reversed itself to now grant permission for judicial review of the proceedings of the Mercy Committee that is advisory to the minister responsible for the death penalty; (v) the State must now wait on the outcome of the recommendations of international human rights bodies that have been asked by convicted persons on death row to review their petitions of reprieve notwithstanding the fact that the reports from these bodies may cause the five-year time limit to result in automatic commutation of a death sentence to life imprisonment.
There was some uncertainty on the part of the Privy Council as regards the issue of mandatory or discretionary sentencing in murder cases in relation to Trinidad and Tobago. This uncertainty wa+s created by the fact that on November 20, 2003, the Privy Council held, in the Balkissoon Roodal case, that the death sentence was no longer mandatory and that the judge could apply his/her discretion at the time of sentencing. However, on July 7, 2004, the Privy Council, in the Charles Matthew case by a 5-4 majority, reversed its decision in the earlier Roodal case on this point and reinstated the mandatory death sentence. Commenting at the time on the decision in the Matthew case, attorney Douglas Mendes (now a temporary Appeal Court judge in Belize) said: "Nowadays, all over the world the mandatory death penalty is considered to be an unjust penalty because there isn't any opportunity to consider whether there are any mitigating circumstances. Because of this ruling we are now stuck with that law." (Newsday, July 8, 2004)
The then president of the Assembly of Southern Lawyers, Hendrickson Seunath, said: "The issue of the death penalty has been dogged for too long. This is a measure of some comfort." (Newsday, July 8, 2004) It is clear that there are conflicting views on this in the legal profession, however, the net effect of that volte face by the Privy Council was that 86 people on death row had their sentences commuted to life imprisonment. The reality now is whether there is the political will to enact legislation to override the earlier judicial opinions since 1993 and also provide some political and legal certainty, one way or the other, for the State and the society. Both the Government and the Opposition have stated that they are supportive of the death penalty. However, there remains a problem of consensus.
