Prime Minister Kamla Persad-Bissessar has indicated that she is prepared to bring the issue of the death penalty back to Parliament for a constitutional amendment to facilitate its implementation.In February 2011, it failed by a margin of 29 votes for and 11 against.There are judicial challenges which the Government must address if they are to overcome the hurdles that have arisen around the implementation of the death penalty.
Over the years, the courts have reaffirmed that the death penalty is indeed a lawful punishment, however, at the same time, the courts have also accepted a parallel narrative that the methods of implementation of the death penalty have rendered the implementation (and not the form of punishment) unconstitutional.
The Judicial Committee of the Privy Council has accepted the argument of delay of execution as an unconstitutional factor of implementation, which means that the State is challenged to get past it in order to carry out the death penalty.The Privy Council has since accepted other implementation debates and deficiencies to add to the delay of execution argument which has created a maze of unconstitutionality around the lawful punishment of death by hanging.
In T&T, these have taken the form of (i) swiftness of execution, (ii) prison conditions on death row, (iii) awaiting the opinions of international human rights bodies on petitions of reprieve from death row inmates, (iv) allowing judicial review of the proceedings and recommendations of the Mercy Committee to the minister responsible for the death penalty, and (v) dithering over the right of the judge to deliver a mandatory or discretionary sentence of death by hanging.
In the 1976 case of De Freitas v Benny (1976) AC 239, the Privy Council held that the death penalty was a proper form of constitutional punishment insofar as it was not "cruel and unusual punishment" to hang Michael de Freitas (also known as Michael Abdul Malik) for the murder of British socialite Gale Ann Benson at Christina Gardens in Arima.
In that case the Privy Council also held that there could be no judicial review of the proceedings and recommendations of the Mercy Committee to the minister responsible for the death penalty.
Arising out the same murder, the other groundbreaking decision on the death penalty was that of Abbott v Attorney General (1979) WLR 1342 in which Lord Diplock accepted delay measured in months for carrying out an execution, but expressed no concluded view on a delay measured in years. Abbot's execution was permitted to proceed.
In 1982 a split decision arose in the ranks to the Privy Council when they gave a divided opinion in the case of Riley and Others v Attorney General of Jamaica (1982) 35 WIR 279. In this case the issue of delay of execution as a human rights infringement was not accepted by the board by a three-two margin with Lords Diplock, Hailsham and Bridge prevailing over Lords Scarman and Brightman.
Eleven years later, in the case of Pratt and Another v Attorney General of Jamaica (1993) 43 WIR 340, the Privy Council reversed its position as expressed in the 1982 Riley case and now accepted the argument of delay of execution as a ground on which a death sentence could be rendered unconstitutional.The Privy Council went further to set a five-year timeline beyond which unconstitutionality would arise. By now, Lords Diplock and Hailsham had left the bench.
The uncertainty of Lord Diplock in the Abbott case in 1979 about delay measured in years was now conclusively answered in the 1993 Pratt case.After this came a number of cases that effectively cornered the lawful death penalty with various requirements that constructively abolished the death penalty in this country and other parts of the Commonwealth Caribbean.
The Guerra v Baptiste case (1996) 1 AC 397 established a timeline for carrying out an execution so that it would not be too swift and reinforced the subdivision of the five-year Pratt rule to accommodate domestic trials, the appellate process, petitions of reprieve and other legal challenges.
The Jamaican case of Lewis v Attorney General (2001)2 AC 50 constructively abolished the death penalty in the region by (i) overturning the 1976 ruling in De Freitas v Benny to now allow judicial review of matters from the Mercy Committee, (ii) requiring that States must now await the responses of international human rights bodies on petitions of reprieve before carrying out executions, and (iii) requiring that prison conditions must be taken into account.
The Privy Council dithered over the issue of mandatory or discretionary sentencing in this country by first imposing mandatory sentencing in Roodal vs The State (2005) 1 AC 328 and then revered itself within months in the case of Matthew v The State (2005) 1 AC 433. Their divided interpretation of the savings clause in Section 6 of the Constitution in relation to the death penalty caused their uncertainty.
The proposed amendment to the Constitution that the Government will pursue again must address the foregoing issues as well as earn the support of the Opposition for a three-fourths majority.