Human rights debate and the death penalty

The People’s Partnership Government proposes a tripartite classification of murder into first, second and third degree, which copies and adapts the UK’s Law Commission 2006 report on murder, manslaughter, and infanticide. The commission, the driving force behind law reform in the UK, has proposed a new classification of homicide offences: First degree murder: Intentional killing; killing with an intention to cause serious injury, in the awareness that there is a serious risk of causing death.
Second degree murder: Killing—with intent to do serious injury; to cause injury or fear or risk of injury; with intent for first degree murder, but where a defence of provocation, diminished responsibility, or suicide pact succeeds. Manslaughter: Awareness that the act posed a serious risk of causing some injury; killing through gross negligence as to causing death; participating in a criminal joint venture in which there was an obvious risk that someone might be killed.

But whereas the UK has a mandatory life sentence for murder, T&T has a mandatory death sentence. This mandatory feature can lead, and has led, to gross injustice. Remember the Dole Chadee gang and Russell Sankeralli, who went to his death protesting, “But I didn’t do anything!” If the tripartite division of murder were then the law, he would still be alive. Eliminating the mandatory death sentence is a major step forward in the search for justice. However, there are still other hurdles to pass. The European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR) has a major influence on international human rights law. It has been incorporated into the UK domestic law. The UK Privy Council, our final court of appeal, must give effect to the ECHR whenever possible. Article 2 of the ECHR provides that the right to life of everyone must be protected by law. This fundamental right is compromised by our domestic law on murder.

While the ECHR makes an exemption for countries like T&T that have not abolished the death penalty, it nevertheless regards a long period of imprisonment before execution as torture, which is prohibited by Article 3. Torture is also outlawed in English common law as “cruel and unusual punishments” (1689 Bill of Rights) and in the 1984 UN Convention Against Torture. This explains the five-year maximum period of detention imposed by the Privy Council before executions in the West Indies. In the Americas, the primary sources for human rights law are the Charter of the Organisation of American states (OAS) and the 1969 American Convention on Human Rights, which is similar to the ECHR. The Inter-American Commission on Human Rights (IACHR) was later established, and became a formal organ of the OAS in order to implement the 1948 American Rights and Duties of Man. The IACHR’s main function is to consider charges of violations of the rights guaranteed by the American Convention on Human Rights. They include the right: to a fair trial, to life, and to humane treatment, among others.

Since T&T is a member of the OAS, its lawyers regularly make such charges on behalf of clients, especially those facing execution. Our prisons are not three-star hotels, and imprisonment perceived to be in inhumane or degrading circumstances will certainly constitute a violation of the American Convention and Article 3 of the ECHR, and will prevent an execution from taking place. Whether by design or accident, the final decision of the IACHR usually goes beyond the five-year limit imposed by the Privy Council, to the great frustration of West Indian governments. Thus, the PP Government is seeking to have a constitutional amendment fixing times for appeal to international bodies, and hopefully ensuring that the punishment for the crime of murder is within a time period fixed by T&T and not by the Privy Council. Underlying human rights debates are two contrasting themes.

First, that human rights are universal, God-given, or self-evident, and must be applied uniformly across the globe. Second, human rights are not universal but vary according to different cultural practices and variations in social, economic, and political development. T&T is a young ex-colonial society with its roots in slavery and indentureship. Its institutions are copies of the former “mother country,” but lack many of the norms and values that support these institutions in the UK. The same is true for many former countries of the British Empire. Inevitably, stunted institutional development, inefficient practices, and conflicts appear, all requiring change and adjustments to ensure stability. The PP Government’s proposal represents one such adjustment. Interestingly, there is increasing UK outrage at decisions of the ECHR court in Strasbourg which conflict with UK court decisions, and seemingly undermine UK domestic law. Calls have been made for withdrawal from the ECHR, even by Lord Hoffman.

Melanie Phillips, in the April 7, 2009, Daily Mail, wrote: “He (Lord Hoffman) has scoffed at the Strasbourg judges for deciding whether the UK has struck the right balance concerning night flights at Heathrow... has asked what is the point of the Strasbourg court at all since the application of ‘universal’ human rights vary from country to country.  “He also ridiculed its legitimacy, claiming that the judges are elected by a committee chaired by a Latvian politician—on which the UK representatives are a Labour politician with a trade union background and no legal qualifications and a Conservative politician who was called to the Bar in 1972 but has never actually practised law.” Many years ago, Lord Hoffman argued in the Privy Council that members were allowing their prejudices against capital punishment to influence their decisions, and that restrictions on West Indian governments to implement their law would produce serious problems. He was prophetic.