Derek Achong

The Unit­ed King­dom-based Privy Coun­cil has been in­vit­ed to take the lead the Caribbean Court of Jus­tice (CCJ) did with Bar­ba­dos and de­clare this coun­try’s manda­to­ry death penal­ty for mur­der as un­con­sti­tu­tion­al. 

Lawyers rep­re­sent­ing con­vict­ed mur­der­er Jay Chan­dler made the call yes­ter­day morn­ing as they pre­sent­ed their sub­mis­sions be­fore nine Law Lords of the Privy Coun­cil in his land­mark ap­peal over the is­sue.

In the ap­peal is be­ing asked to con­sid­er the con­tin­ued ap­plic­a­bil­i­ty of Sec­tion 6 of this coun­try’s Con­sti­tu­tion, which “saves” or in­su­lates laws passed pri­or to In­de­pen­dence such as the death penal­ty and pub­lic health or­di­nances, be­ing used in the COVID-19 pan­dem­ic, from re­view. 

Chan­dler’s at­tor­neys re­peat­ed point­ed to a 2018 rul­ing in a case from Bar­ba­dos in which the CCJ, as that coun­try’s fi­nal ap­pel­late court, said that the death penal­ty vi­o­lat­ed rights un­der its Con­sti­tu­tion, which has a sim­i­lar sav­ings clause as T&T. 

Pre­sent­ing sub­mis­sions, Chan­dler’s lawyer Dou­glas Mendes, SC, point­ed out that the CCJ took the de­ci­sion, which con­tra­dicts the Privy Coun­cil’s view on the is­sue in sev­er­al re­gion­al cas­es from al­most two decades ago, al­though the sav­ings clause in the Bar­ba­dos Con­sti­tu­tion is “more ex­pres­sive”. 

Mendes not­ed that when the Privy Coun­cil last con­sid­ered the is­sue, it de­liv­ered a ma­jor­i­ty de­ci­sion in which sev­er­al em­i­nent Law Lords dis­sent­ed as they agreed with the po­si­tion even­tu­al­ly adopt­ed by the CCJ to en­sure that Bar­ba­dos was in con­for­mi­ty with its in­ter­na­tion­al hu­man rights oblig­a­tions.

While Mendes ad­mit­ted that if suc­cess­ful the case would set a prece­dent in re­la­tion to oth­er lo­cal con­sti­tu­tion­al cas­es on mod­ern hu­man rights in­clud­ing re­cent chal­lenges to the coun­try’s sedi­tion and bug­gery laws, he ques­tioned whether such an out­come was neg­a­tive. 

“It will en­sure that T&T cit­i­zens get all the rights and free­doms guar­an­teed un­der the Con­sti­tu­tion. That is a pos­i­tive thing by any mea­sure,” Mendes said. 

Mendes not­ed that there were no is­sues in Bar­ba­dos af­ter the CCJ gave its rul­ing al­most three years ago.

“There has been no up­roar. The ef­fect of over­turn­ing this is not doom and gloom,” Mendes said. 

British Queen’s Coun­sel Ed­ward Fitzger­ald, who al­so rep­re­sents Chan­dler, sug­gest­ed that even if the Privy Coun­cil is not in­clined to by­pass the sav­ings clause and rule that the death penal­ty con­sti­tutes cru­el and in­hu­mane pun­ish­ment, it could still in­val­i­date the death penal­ty. 

Fitzger­ald stat­ed that the manda­to­ry penal­ty of mur­der, as pre­scribed by Sec­tion 4 of the Of­fences Against The Per­son Act, al­so breached the doc­trine of the sep­a­ra­tion of pow­ers as Par­lia­ment in­fringed the Ju­di­cia­ry’s ju­ris­dic­tion to de­cide a sen­tence based on the unique cir­cum­stances of a crime. 

“If the leg­is­la­ture im­pos­es the sen­tence it is usurp­ing a ju­di­cial func­tion,” Fitzger­ald said.

As he be­gan to re­spond to the sub­mis­sions, Se­nior Coun­sel Fyard Ho­sein, who rep­re­sents the State, claimed that the CCJ’s rul­ing on the is­sue is not bind­ing on T&T. 

He not­ed that T&T is not among the four Cari­com coun­tries, who have made the CCJ their fi­nal ap­pel­late court, al­though the court’s head­quar­ters is based in Port-of-Spain.

Be­sides Bar­ba­dos, the oth­er coun­tries are Be­lize, Guyana and Do­mini­ca. 

“That is a de­lib­er­ate leg­isla­tive choice by T&T,” he said.

Ho­sein was quizzed by the ap­peal board over whether Par­lia­ment had con­sid­ered the ef­fect of the manda­to­ry penal­ty on its in­ter­na­tion­al hu­man rights oblig­a­tions. 

“The leg­is­la­ture has not done it. I don’t know if it has not been thought about,” Ho­sein said.

Ho­sein not­ed that while Chan­dler’s le­gal team were seek­ing to use re­gion­al ex­am­ples, such was in­ap­pro­pri­ate as each coun­try’s so­ci­ety and is­sues are unique. 

“Each coun­try is a sov­er­eign de­mo­c­ra­t­ic state...Democ­ra­cy means dif­fer­ent things to dif­fer­ent peo­ple,” Ho­sein said. 

Ho­sein al­so dis­agreed over the strength of this coun­try’s sav­ings clause com­pared to re­gion­al coun­tries as he claimed that it is the most “com­pre­hen­sive”. 

While the death penal­ty re­mains law, the sen­tence has not been car­ried out since late Ju­ly 1999, when An­tho­ny Brig­gs was ex­e­cut­ed for blud­geon­ing a taxi dri­ver to death dur­ing a botched rob­bery sev­en years ear­li­er. 

In 2011, Chan­dler was con­vict­ed of mur­der­ing Kern Phillip, a fel­low re­mand pris­on­er at the Gold­en Grove Prison in Arou­ca in 2004. 

Chan­dler, 43, was ac­cused of stab­bing Phillip with a makeshift knife dur­ing air­ing time in the com­mu­nal area of the prison.

Chan­dler lost his ap­peal in the Court of Ap­peal and in 2018 the Privy Coun­cil dis­missed his fi­nal ap­peal, which sought to have fresh med­ical ev­i­dence of his men­tal state at the time of the crime ad­mit­ted. 

The rul­ing in the case was a ma­jor­i­ty de­ci­sion with two of the five judges on the pan­el dis­sent­ing as they felt that case should be re­mit­ted to the lo­cal court to de­cide whether he should have ben­e­fit­ed from the de­fense of di­min­ished re­spon­si­bil­i­ty. 

Like most con­vict­ed of mur­der over the past two decades, Chan­dler ben­e­fit­ed from the Privy Coun­cil’s 1993 rul­ing in the Ja­maican case of Pratt and Moran, in which it ruled that the death penal­ty can­not be car­ried out if they are not ex­e­cut­ed with­in five years of be­ing con­vict­ed and sen­tenced. 

Chan­dler is al­so be­ing rep­re­sent­ed by Ra­jiv Per­sad and Aman­da Clift-Matthews, while Howard Stevens, QC, Tom Poole, QC, and Han­nah Fry are al­so rep­re­sent­ing the State. 

The State is sched­uled to con­tin­ue its sub­mis­sions when the case re­sumes this morn­ing.