I am positive that everyone in this country believes that human life is sacred and sacrosanct. I too am of that believe, so much so that I hold that if an adult person of sound mind, without lawful justification or excuse, kills someone then that person has forfeited his right to live and should suffer death by hanging.
But not all convicted murders deserve to be executed. There may be extenuating circumstances surrounding the unjustified killing of someone and thus the killer ought not to be executed. Thus I welcome the People's Partnership Government's proposed bill which categorises murder into first, second and third degree.
First degree attracts the penalty of execution while second and third a term of imprisonment up to life, depending on the facts and circumstances of the unlawful killing. It should be noted that some 20 years ago the PNM government established the Prescott Commission to examine the issue of the death penalty and to make recommendations on the matter. Both Alice Yorke-Soo Hon (barrister, as she then was-now Court of Appeal judge) and myself jointly submitted before that commission that murder should be categorised into first, second and third degree with the death penalty reserved for first degree. Many other people made a similar suggestion. The commission recommended that murder be classified into first, second and third degree with execution only for first degree.
The PNM government did absolutely nothing about it; neither the NAR government nor the UNC government. Thus it is heartening to see the PP Government moving to enact legislation in order to categorise murder into first, second and third degree. The categorisation of murder is the first step in the abolition of the death penalty. But the abolitionists are crying out for complete abolition of the death penalty.
They have advanced the following grounds for its abolition: It is cruel and unusual punishment; it does not reduce the murder rate; a completely innocent man could be executed; it is a natural right which no man (and society) has the right to take. Execution by hanging is certainly not unusual in this country. From the day Columbus landed on these shores they were executing people by hanging. One does not have to visit the Black Jacobins for Haiti's atrocities perpetuated against the Africans to figure out to what extent these atrocities took place in Trini-dad. Many a slave was executed by hanging on the estate of Count Lopinot in Arouca.
In any event, the Privy Council has ruled that the death penalty by hanging is constitutional; thus it is not cruel and unusual punishment. No one knows-the empirical evidence shows that in countries which abolished the death penalty there were no indications that the murder rate was reduced. In any event the main reason for the retention of the death penalty for a wicked and atrocious murder is to satisfy society's basic and primordial instinct for retribution. The general will of the people must prevail, not that of the so-called "enlightened leadership," if we are to prevent a return to a state of nature in this country where man would be against man as a dog, and life would be "poor, nasty, brutish and short."
It is more likely, and this is a fact, that a guilty man on a charge of capital murder would be freed than an innocent man be convicted. I know of not a single case where an innocent man has been convicted for capital murder in T&T. As a matter of fact, the criminal justice system is lopsided in its anxiety to protect the innocent, so much so that it also protects the guilty. But this is the price that society must pay in order to protect the purity of the rule of law.
The abolitionists who have postulated as one of the planks for the abolition of the death penalty that an innocent man may be convicted for capital murder must bear in mind the following safeguards which protect the accused person:
• An accused is presumed to be innocent and the onus is upon the prosecution to prove that he is guilty.
•The evidence to bring home a conviction must be cogent, compelling, credible and convincing.
• All 12 jurors must believe they fell sure that the accused is guilty. If one juror is in doubt the accused cannot be found guilty.
• If two or more inferences could be drawn from any given fact, the one that is most favourable to the accused must be drawn
• If the evidence is based solely on identification or it comes from an accomplice the judge must warn the jury that it is dangerous to convict on such evidence
• The accused must always be given the benefit of a reasonable doubt.
I can go on and on-it is almost improbable to convict an innocent man it this country under the present criminal justice system. It is quite true that in theory a completely innocent man could be convicted for capital murder but that is the price society must pay for law and order and good governance. The criminal justice system is not infallible but it strives to be fair. The abolitionists are of the view that the right to life is a fundamental right or human right; and it is universal, self-evident, inalienable and indefeasible. They claim that the right to life is based on natural law and it exists independently of government and society; and it is so sacred that even if a man unjustifiably kills another man, that by itself is no justification for killing him because the right to life is so sacrosanct that it must not be taken away-even if a person has committed the most atrocious of crimes.
They argue that the right to life applies to the worst of us as well as to the best of us, which is why the right to live must not be taken away by any of us. This is a bogus rationale because there is no such thing as a human right or natural right to life. A right connotes that one has done something to deserve whatever one is claiming as a right. The religious version of the origin of man tells us that man had no claim to the right to life yet he was created by God. The scientific explanation has demonstrated that man had no special claim over the evolution of the human stage of the creature that is human life-he crawled out of the sea as an amphibian then evolved into a monkey which eventually evolved into homo sapiens-man.
Thus man has no special claim to human life, yet he is in existence. In the early stage of the social development of mankind, man lived in very small groups. Man cemented a contract with one another: "you don't kill me and I would not kill you under normal circumstances." Human rights are the conditions of a good society. These conditions are not given by nature or mystically bound up with the existence of man and his inevitable goal, but it is determined by human decisions. Thus the right to live is a contractual right and if a man without just cause kills another man he has forfeited his right to life and should suffer death by hanging.
Israel B Khan SC