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Rule of law alive and well

Published: 
Sunday, January 16, 2011
Prime Minister Kamla Persad-Bissessar as she delivered her statement in Parliament yesterday. At right is Leader of Government Business Dr Roodal Moonilal.

Introduction

It is axiomatic that crime is the nation’s number-one concern and therefore this Government’s number-one priority. Over the last seven months we have reviewed much of what former governments have done, we have looked long and hard at the multiple initiatives and assessed their failures and successes. Our findings have informed the many initiatives undertaken by your People’s Partnership government.

There is much yet to be done. In every tear shed by relatives of every murder victim, there is a desperate cry for justice. Mothers have lost their sons and daughters, children are left motherless and fatherless.
Homes left without incomes, families destroyed and forced into poverty and worse.  Mr Speaker this government recognises that there are multiple causes of crime. We recognise that the war on crime cannot be won unless we use every weapon in our arsenal.

The present crisis caused by the escalation in criminal activity over the past eight years is a multi-dimensional problem to which there is no single answer.A multi-faceted approach is therefore necessary if we are to protect law abiding citizens from harm and restore dignity and respect to the sanctity and value of human life.

Right to security and enjoyment of property

Section 4(a) of our constitution guarantees to each and every citizen the fundamental human right to life, liberty, security of the person and enjoyment of property. This basic and fundamental human right is under threat. The terrifying tsunami of crime has all but made a mockery of the state’s ability to guarantee this fundamental right to citizens over the past ten years. Our sons and daughters are no longer free to carry out their daily activities as they live in fear and feel threatened by the growing criminal element in our society.

The harsh reality is that anyone can become the next nameless robbery or murder statistic.
Innocent people have been forced to barricade themselves into their homes as they live in fear. It is my government’s responsibility to restore respect and honour to the constitution which is the supreme law of this land.  It is our duty to rescue and free this nation from the clutches and grip of the criminals that rob, rape, kidnap and murder our loved ones.  I refuse to let a small handful of devious criminals hold this nation to ransom whilst they savagely attack and brutalise our society.

This government is committed to addressing frontally the challenge to fighting crime. We intend to retaliate with full force and strike back in the knowledge that the state has provided every opportunity and avenue for those who seek a new way of life and turn away from a life of crime. Hundreds of billions of dollars have been spent on social and training programmes designed specifically for young men and women from all walks of life to facilitate their personal development and upward social mobility. Education, including vocational training is free as our initiatives to make tertiary education accessible to everyone. There is therefore little or no excuse for choosing a life of violent crime.

Measures already taken by the People’s Partnership

There are many aspects to the People’s Partnership multi-faceted crime plan. We are committed to detecting and solving crime and to this end have taken several measures in the short seven months that we have been in office. These measures include:
The appointment of a new commissioner of Police and two deputy commissioners of Police
The review and restructuring of the Special Anti-Crime Unit to redirect and focus its vast resources in the fight against crime on the ground.
The restructuring and streamlining of our various security intelligence agencies to facilitate the proper gathering of criminal intelligence.
The passage of the Interception of Communications Bill 2010 to prevent the continued misuse and abuse of the intercept abilities of the state that engaged in the interception of private communication of law-abiding citizens.
The introduction of the Anti-Gang Bill which specifically targets gangs and gang-related criminal activities.
The introduction of the Bail (Amendment) Bill, to deny bail to gang leaders and gang members and repeat offenders.
Increase in several grants and benefits that are available to the less fortunate in our society.
The creation of the Ministry of the People which is dedicated to providing relief to the poor and needy in our society.
The increase of the minimum wage from $9 to $12.50 per hour
Increase the old aged pension to $3000 per month
Awarded a non-taxable special allowance of $1000 to all police officers.
Provided every Form 1 student with a laptop.
The introduction of the Anti-Corruption Bill
The introduction of the Procurement legislation
 

New measures

Very soon we intend to implement several further measures, including:
New regulations for the prison service with special emphasis on the rehabilitative aspect of the prison system.
The introduction of GPS technology in the police service and the outfitting of police vehicles with GPS transponders and tracking equipment.
The introduction of high tech CCTV cameras in various crime hot-spots.
The abolition of preliminary enquiries
A comprehensive package of legislation directed at improving the pace of criminal justice
The completion of the DNA lab
The use of the internet in the fight against crime by the establishment of a virtual command centre and the use of text messaging.

Vote for change

On May 24th 2010, the citizens of this Nation voted comprehensively for change, and change they must get. I have said elsewhere that 2011 is the year for delivery, delivery, delivery. Mr Speaker murder is one of the most heinous crimes. The pain and trauma of the loss remains permanently scarred on families of the victims who are dispossessed of their loved ones. This is made worse by the fact that almost invariably, these families are denied justice. For them, the murderer, even when convicted is hardly ever made to pay for his crime.

Not this time. Unlike a former Prime Minister who boasted of knowing Mr Big who was perpetrating bloodshed of our nationals but chose to do nothing about it, this is one prime minister prepared to walk the talk. Mr Speaker, the continued non-implementation of the death penalty is an issue of great public concern to the people of Trinidad and Tobago, and I daresay also the people of the region. I take this opportunity to make this statement on the status of the implementation of the death penalty so that the national community will be conscious of the status of this very significant matter.

The law

Mr Speaker, the death penalty is the punishment provided by law in Trinidad and Tobago. Section 4 of the Offences against the Person Act, Chap 11:08, provides that “Every person convicted of murder shall suffer death”. The question as to whether a Trial Judge has a discretion whether or not to impose a mandatory sentence of death upon any person found guilty of the crime of murder in this jurisdiction was finally settled by the landmark decision of the Privy Council in the case of Charles Matthew vs The State, Privy Council Appeal No 12 of 2004.
 

Mr Speaker, the Privy Council ruled that the imposition of the death penalty was in fact mandatory and constitutional, and not discretionary. So the law of the land is that if you are convicted of murder the Judge must impose a sentence of death; he has no discretion in the matter.

Increasing murder rate

The marked increase in the crime rate, especially the murder rate has led to a determined desire by the people of this country for the implementation of the death penalty. This demand is premised on the belief that the frequency and ease with which murders are committed may be reduced by a clear demonstration that there are serious consequences for such disregard of the law and the lives of fellow human beings. It is the duty of the State to employ  every means at its disposal to treat with the wanton disregard of the law by criminals. Mr Speaker, during the period 1995 to 2001, the average murder rate per year was about 100 murders, except in 2001 when the figure reached 151. But in the following period 2002 to 2010, there was a dramatic increase in the murder rate. I would let the figures speak for themselves:

2002 - 172
2003 - 229
2004 – 261
2005 – 386
2006 – 371
2007 – 391

2008 – 547
2009 – 506
2010 – 472

Decline in serious crime in 2010

I am advised by the Commissioner of Police that the statistics for 2010 reveal a decrease in serious crimes of almost 20 per cent as compared to 2009. whilst I am happy to say this was especially so in the latter half of 2010, and I welcome this with a sense of quiet hope and optimism, I see no cause for celebration as the murder rate continues to soar daily. An entire generation of father and motherless children has been created by the criminal elements in our society. 3335 persons have been murdered during the period 2002-2010.

Unacceptable state of affairs

This is an unacceptable and alarmed statistic for a country blessed with so many natural resources and with a mere population of less than 1.5 million people. What is particularly disturbing is the callous and casual manner in which the lives of some were taken. What angers us even more is the gruesome nature of some of the murders against innocent women and young children. We cannot Mr Speaker, allow this situation to continue. Indeed, we have tolerated it for too long and the change demanded by the population on May 24th calls for a radical and revolutionary vision and approach to our many inherited problems.

I intend to heed that desperate call, nay cry, for change. It is a cry for help as criminals have ruptured the very soul of this nation. To this end Mr Speaker the People’s Partnership government has decided to introduce a Bill to amend the constitution to facilitate the implementation of the death penalty.  We have incorporated into this Bill a previous law that was passed by this honourable House in 2000 whereby murders were categorised to strike a balance and appreciate the varied circumstances in which a murder can occur.

Categorisation of murders

We propose to treat with murder in three categories, and not to impose the death penalty in all cases of murder. That Bill (The Offences against the Persons Bill) which saught to categorise murders was debated in this parliament on October 13th 2000. The Bill was unanimously passed without any amendments with the full support of the opposition. In outlining the PNM’s position, former Member of Parliament Mr Fitzgerald Hinds said “we on this side support any measure that is designed to bring some improvement to the law of murder as it now stands, and in principle, and in general terms, we support the amendments proposed to the Offences against the Persons Act.

I thank you”. There was no real debate on this Bill because there was agreement by both parties that it was necessary and proper. That law was never however proclaimed. Some legal experts have expressed the view that such a law in any event requires a special majority and would be better housed in the constitution.

PNM supporta death penalty

The opposition has always publicly supported the enforcement of the death penalty however no real or meaningful steps to secure its implementation have ever been taken. The PNM in a press release dated May 9th 2007 congratulated then Prime Minister Manning for “his insistence that he intends to enforce the death penalty (which has shown to be overwhelmingly supported by the people of Trinidad and Tobago)”.

In an article carried in the Newsday newspaper published on Friday 11th May 2007 PNM PRO Jerry Narace criticised the Privy Council and stated that the party was in full support of the death penalty. Permit me to quote one sentence from that article which reads as follows:
“Narace said that the death penalty was both the current law of the land and a measure which opinion polls have shown enjoy the overwhelming public support.” In the circumstances, Mr Speaker, the government anticipates the full and unconditional support of the opposition in this matter. There is no room for partisan politics when it comes to the fight against crime. Responsible and matured leadership is needed to rescue our nation from this abyss of crime. We proceed on the assumption that the PNM has not changed its position on this critical matter.

Death penalty not new law

Let me hasten to add that the death penalty was and remains the law of the land. This Bill does not introduce any new penalty that did not previously exist in our laws. It simply seeks to plug some of the loop holes that have been exploited and manipulated by murderers who have been properly convicted and sentenced to death according to law. The Government of the People’s Partnership is fully committed to the rule of law and to this end we will seek to give effect to the law of the land in relation to murders.

However, the Government’s commitment to upholding the law has resulted in difficulties in implementing the death penalty, mainly because the convicted murderer has a constitutional right of appeal to the Court of Appeal and the Privy Council.  There is also a further right to petition the Inter-American Court of Human Rights and apply for Presidential pardon via the Mercy Committee. The systematic and endemic delays in this process makes it virtually impossible to implement the death penalty.

Categories of murder

Mr Speaker, the concept of categories of murder is common among many States in the United States. Most states allow capital punishment for first degree murder.
1. First Degree Murder: An intentional killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated action.
2. Second Degree Murder: Homicide committed by an individual engaged as a principal or an accomplice in the perpetration of a felony.
3. Third Degree Murder: Any other murder (eg when the intent was not to kill, but to harm the victim).
In Germany, murder is categorised into three groups:
detestable motive/reason of the criminal (life imprisonment)
detestable way of committing the crime (15 years)
detestable purpose/aim of the criminal (ten years).

In Australia, only Western Australia distinguishes between grades of murder. That State distinguishes between murder and willful murder, which requires proof of an intention to kill. The distinction affects penalty and parole periods.

In Canada, under section 229 of the Criminal Code, there are two categories of culpable murder. A conviction for murder carries a mandatory sentence of life imprisonment. In the case of first degree murder, there is no parole eligibility for 25 years. In the case of second degree murders (all murders which are not first degree) the period of parole ineligibility is anywhere from ten to 25 years. All other murders are treated as manslaughter.

Restorative justice

The Trinidad and Tobago Prison Service is in high gear towards fostering a system of restorative justice that is focused on crime reduction through a process of training and treatment of prisoners.
The objectives of this new system would be the restoration and reintegration of prisoners back into society as a whole, assisting them to become contributing members of their communities and thereby reducing the level of crime that is currently plaguing our society. One of the measures through which these objectives would be accomplished is through the replacement of the existing prison rules which were made under the West Indian Prison Act, 1838 with an entirely new set of prison rules.

These new rules would seek not only to satisfy international standards on the treatment of prisoners but would also empower prison officers in a manner that would allow them to effectively manage the Prison Service and implement those systems that would bring about positive changes in the mindset and behaviour of the prisoners in their charge. The new prison rules are currently receiving the active attention of the Ministry of Justice and are expected to be implemented within the near future.

John Stuart Mill’s social theory

John Stuart Mill’s view on liberty is that the individual ought to be free to do as he wishes unless he harms others. Individuals are rational enough to make decisions about their good being and choose any religion they want to. But Government should interfere when it is for the protection of society. Mill explains:
“The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others.”

Objects of the bill

The Constitution (Amendment) (Capital Offences) Bill, 2011 seeks to make provisions in relation to the implementation of the death penalty. Firstly, the Bill would include in the Constitution provisions for three categories of murder—Murder One, Two and Three. We intend to restrict the mandatory imposition of the death sentence in relation to Murder One. These will include the killing of a member of the security force, a prison officer, and a judicial or legal officer acting in the performance of his duties; the murder of a witness or a juror, murders committed by a bomb, and contract murders. But the Bill will also specify the circumstances in which the death sentence or life imprisonment may be imposed for Murder Two and the classification of Murder Three as involuntary homicide.

The categorisation of murder would enshrine in the Constitution the provisions of the Offences Against the Person (Amendment) Act, 2000 (Act No 90 of 2000), which has not yet been proclaimed.  This Act has not been proclaimed because it was not passed with a special majority and similar Jamaican legislation that retained the mandatory sentence of death for certain categories of murder, was struck down by the Privy Council in the case of Watson vs R [2004] 4 LRC 811 on the grounds that the imposition of the death penalty is inhuman and degrading treatment.

Any new legislation relating to the implementation of the death penalty that is not protected by the savings clause of the Constitution or the Constitution itself is likely to be quashed without dissent by the Privy Council.  These provisions therefore need to be included in the Constitution, which is the supreme law of Trinidad and Tobago.

Overcoming hindrances to implementation of the death penalty

Secondly, the Bill would seek to overcome the hindrances to the implementation of the death penalty arising out of various Privy Council decisions, such as pre-trial delay, post-trial delay, legitimate expectation that the Mercy Committee would consider the findings of an international body and prison conditions.

- The case of Pratt and Morgan vs AG for Jamaica [1994] 2 AC 1) requires the death penalty to be executed within five years from the date of sentence.

- In Thomas and Hilaire vs Baptiste [1999] 2 LRC 733), the Privy Council upheld the right of condemned persons to access international bodies to which Trinidad and Tobago has subscribed, even if such bodies are unable or unwilling to deal with capital cases within a reasonable time so as to allow Trinidad and Tobago to comply with the deadlines laid down in Pratt and Morgan.

- The case of Lewis vs AG for Jamaica [2000] 5 LRC 253) has opened the door for potential challenges to the proceedings of the Mercy Committee by specifying that a condemned person must be notified that the Mercy Committee will be meeting to consider his case, be given all information that the Mercy Committee will consider and be invited to make written representation to the Committee. The case of Lewis cited above also suggested that deplorable prison conditions might be such as to aggravate the punishment of the death sentence so as to amount to inhuman and degrading treatment.

The Constitution (Amendment) Bill, 1998

Mr Speaker, when the UNC Government sought to address the murder rate in September 1998 by seeking to amend the Constitution to prevent delays in implementing the death penalty, the Opposition refused to support the measure and voted against the Bill (13 Members on that side). Mr Speaker this is not a time for political games. This is a time for action in the interests of the nation and our citizens.

The success or failure of the passage of this legislation lies squarely on all of us and particularly those of the opposition since the measures require a 3/5 majority in this House and a 2/3 majority in the Upper House.  I urge the nation to pay close attention to what happens with this Bill. This measure does not remove the right of any accused person to explore all avenues for appeal and justice. This is unlike the case of Glen Ashby who was hanged even while his appeal was pending. We must all rise and join hands to conquer the demon of crime. We must send a loud and clear message that the rule of law is alive and well in Trinidad and Tobago.

This law will send a powerful message to those that are intent on wreaking havoc in our society and destroying innocent lives that we have united and are ready to confront them. The People’s Partnership is committed to restoring law and order in this country and those who do not intend to respect the laws of this land shall feel the full weight of this law and pay the ultimate price. We must act now before it is too late and I am not afraid to lead this charge against the enemy in the name of the rule of law, justice and law and order. Mr Speaker, I thank you.