LEE MERRY
LORD Stephens: Mr Hosein…can I just get myself orientated around the submissions. I understand that you accept that the mandatory death penalty is a cruel and inhumane provision.
Hosein: It is my Lord, but it does not violate section 4 or 5 (of the Constitution).
Stephens: But you wish to uphold it.
Hosein: Yes my Lord.
Stephens: And has it been considered by the legislator since Matthew.
Hosein: No my Lord.
Stephens: Has there been any attempt to change the Constitution at all?
Hosein: No my Lord, and I'll get to that in a moment.
Stephens: I hesitate to ask, but is there a reason why there should be a continuation of a cruel and inhumane punishment?
Hosein: My Lord, my answer to that is that is a matter of legislative choice.
The above exchange took place during a hearing at the Privy Council last week. Lord Stephens, one of nine judges hearing the appeal of Chandler v The State, was making enquiries of Fyard Hosein SC who appeared on behalf of the State. The reference to 'Matthew' is a reference to the case of Matthew v The State, decided in 2004, in which the Privy Council held that the mandatory death penalty in Trinidad and Tobago is cruel and unusual punishment and therefore on its face unconstitutional.
If only it were that simple. The court in Matthew went on to find that the mandatory death penalty provision is 'saved' by another part of the Constitution commonly referred to as the 'savings law clause.' It therefore remains valid law.
The savings law clause was again under scrutiny at last week's hearing, in another case challenging the mandatory death penalty in TT. This follows strong rulings out of the Caribbean Court of Justice which resulted in the abolition of the mandatory death sentence in other Caribbean territories, including Barbados and Guyana. In the Barbadian case, then President of the CCJ Sir Dennis Byron opined: 'The general saving clause is an unacceptable diminution of the freedom of newly independent peoples who fought for that freedom with unshakeable faith in fundamental human rights. The idea that even where a provision is inconsistent with a fundamental right a court is prevented from declaring the truth of that inconsistency just because the laws formed part of the inherited laws from the colonial regime must be condemned.'
So what exactly is this savings law clause, and why do we still have it here in TT?
When we severed ties with the UK, the laws that were enacted prior to us becoming a republic continued in force. These are called 'existing laws.' Our Parliament of course has the power to revoke or modify these laws or to pass new laws as it sees fit.
There are many existing laws which are still in force today, not having been revoked or modified despite their significant vintage - many of them being around since the early 1900s.
Our Constitution guarantees all people certain fundamental human rights. These include the right to life, liberty and security of the person, the right to property, to freedom of the press, to equality
