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Lies, Half-Truths and Consultations

Denis Solomon • 1,690 words

But, confining ourselves to the consultation, it is not accurate to say that the Privy Council has changed its mind about judicial delay as a bar to execution.

Lies, half-truths and innuendoes” are the bugbear of the UNC government. But no one is more proficient in their use than the members of that government, particularly Attorney General Ramesh Lawrence Maharaj. Not only on the political platform, where he has been guilty of such unsubstantiated assertions as his statement that the Independent is financed by the PNM, but also on more solemn occasions such as his “consultation” on the Bills to amend the Constitution and the Offences Against the Person Act.

The following examples of the Attorney General’s economy with the truth are taken from his statement to that gathering.

“…the Judicial Committee of the Privy Council operates in an environment in which not only its national laws have abolished capital punishment but the European Community to which it belongs is committed to not enforcing the death penalty during peacetime”.

The Judicial Committee of the Privy Council has no “national laws”. It is not part of the English legal system. It does not hear cases from the English courts. It exists solely as the highest court of appeal of those Commonwealth countries which, of their own volition, have retained it.

The Judicial Committee of the Privy Council, furthermore, has nothing to do with the laws in force in England or, a fortiori, in the European Community, except insofar as those laws, and decisions reached in accordance with them, form part of world jurisprudence and, in particular, the jurisprudence of those countries whose law is derived from the law of England. That is, it is concerned with them to the same extent as any court in Trinidad and Tobago might be.

“The people of Trinidad and Tobago have reaffirmed their belief in capital punishment as punishment for murder and treason to the Prescott Commission of Enquiry into the appropriateness of the death penalty as a punishment in Trinidad and Tobago”

The first time there is a Commission of Enquiry with whose report Ramesh Lawrence Maharaj does not agree, I hope someone reminds him that it speaks for the whole nation.

A Commission of Enquiry is an expression of the opinion of its members and of some of those it may have consulted. It is not a legitimate poll of public opinion. The only way its report could approach legitimisation as national policy is by being adopted by Parliament, to which neither the PNM nor the UNC/NAR governments have thought fit to submit it.

The Prescott Commission was set up as a result of a motion by then Senator Ramesh Deosaran, carried in the Senate by 22 votes to three. Senator Deosaran’s intention was that the eventual report should be published, debated in Parliament and voted on in a free vote. When the Commission reported but the report was neither published nor laid in Parliament, both Deosaran and Senator Diana Mahabir-Wyatt protested and called for the original intention to be adhered to.

The reason given by then Attorney General Russell Huggins for denying the request was that the report dealt with issues that were part of the grounds of an appeal then being heard. This excuse is no longer valid. Yet the present Attorney General has given no reason for failing to lay the report before Parliament, and has gone so far as to imply that Parliament is superfluous because the report represents the opinion of the people of Trinidad ad Tobago.

To understand the real reason behind Maharaj’s, and probably also Huggins’, reluctance to publish the report or expose it to Parliamentary debate, you only have to read it. The truth is that it is a lousy report. In the words of Dr. Roger Hood, fellow of All Souls College, Oxford, and Director of the Centre for Criminological Research: “…the conclusions reached do not seem to me to be consistent with the facts and arguments which preceded them…the Commission has reached entirely the wrong conclusion from the data at its disposal…I have never seen such a poor piece of work from an official body charged with a subject of such importance.”

So much for the opinion of the people of Trinidad and Tobago.

Dr. Hood’s judgement on the report was enthusiastically seconded by the group of organisations in Trinidad and Tobago which had been campaigning against the death penalty, including, if memory serves, the Human Rights Bureau headed by one Ramesh Lawrence Maharaj.

“In other jurisdictions…the courts have made it quite clear that delays in the appeal process cannot be used as a legal bar to carry out the death sentence. Their judgements are in accord with the views and decisions made by the Privy Council before it decided Pratt and Morgan”.

The implication here is that the Privy Council has changed its mind, and taken together with the statement about the “atmosphere” in which it operates, reinforces the idea that it is not only an obstacle to the realisation of our judicial aspirations, but a capricious one – a straw in the wind of an alien system. This suggestion was parroted by a number of participants in the consultation.

Ramesh Lawrence Maharaj’s party is on record as opposing the removal of the Privy Council as the final court of appeal for this country, on the grounds that they do not trust our own judges. So they cannot think that the Privy Council is as bad as all that.

But, confining ourselves to the consultation, it is not accurate to say that the Privy Council has changed its mind about judicial delay as a bar to execution. Even in the de Freitas, Abbott and Riley judgements which Ramesh cites as expressions of the earlier opinion, there were obiter dicta of the judges to the effect that excessive delays could amount to cruel and unusual punishment. For example, Lord Diplock in Abbott: “In such a case, which…would involve delay measured in years rather than in months, it might be argued that the taking of the condemned man’s life was not ‘by due process of law’.”

What the Pratt and Morgan judgement did was to show that ever since Magna Carta English law had taken strong positions against cruel and unusual punishment and held that justice must be swift. It was therefore wrong to have found, in the earlier cases, that English law would have condoned excess delay and that the “saving law” of newly independent or newly republican Commonwealth countries has preserved the principle that excess delay was no barrier to execution. Excess delay could not have been saved because it had not been legal in the first place.

So Pratt and Morgan was not a reversal of the Privy Council’s opinion in de Freitas, Abbott and Riley, but rather a refinement of it based on a deeper examination of precedent.

One of the other jurisdictions Ramesh cites as having laid down that delay cannot be used as a legal bar to executions is India. This is also not accurate. In India, the death penalty is not mandatory. The appellate court takes into account delay when deciding whether the death sentence should be imposed, and there are decisions on record in which Indian judges have stated not only that delay is a valid ground for appeal, but also that as long as there is delay the cause is immaterial.

With the logic of innuendo Ramesh combines the suggestion that the Privy Council has changed its mind with the assertion that judicial delay has been no barrier to executions in the United States. “They have executed condemned persons who spent eight years, ten years and even fifteen years between the date of conviction and the date of execution” he says. But he neglects to mention that the United States is the country par excellence where the Supreme Court changes its mind most frequently, and has in fact done so in relation to the death penalty, which it abolished some years ago only to reverse its own decision when the political composition of the court changed. And the grounds on which it abolished capital punishment was that the death penalty itself (not just delay in carrying it out) was cruel and unusual.

In the United States, too, people who were minors at the time of their crime are executed, as are mentally retarded killers. So, as far as the law of the United States as an exemplar of the jurisprudence, or of the morality, of capital punishment is concerned, you pays your money and you takes your choice. It would be just as logical to take Saudi Arabia as a model.

But the whole consultation was a lie, a half-truth and an innuendo all rolled into one. Ramesh’s repeated assertion that the discussion was not about the death penalty but about how to ensure that the law was carried out was not just disingenuousness but the grossest hypocrisy. People were there not because they wanted the law carried out but because they wanted that law carried out. If Ramesh really wanted the judicial system to work he would accept the challenge to reform the operations of the courts rather than meddle with the Constitution to circumvent the need for reform. What he is trying to do, instead, is to put delay on the books as an acceptable feature of the judicial process.

No one knows where Ramesh stands personally on anything, if indeed he has any principle at all. But if he is to get what he seems to want here, he will have to ask the nation’s Parliament to give him a two-thirds majority for it, no matter how many phony consultations he organises first. And he will have to explain why he is doing it in this bass-ackward way: asking the legislature to help him hang people without first asking it if it wants people to be hanged.

So he may fail, and the blood lust of his admirers in the Central Bank Auditorium may yet go unslaked. But if he succeeds, the result will be a whole series of Glen Ashbys dragged from the appeal court to the gallows as the political situation dictates, interspersed with even greater delays as the neglected procedures of the courts limp ever more slowly along.

Copyright © • Denis Solomon • Trinidad and Tobago Humanist Association • www.humanist.org.tt/humanist/forum/solomon Page Top