NINE Privy Council judges are being asked to make the death penalty discretionary.
Before them is an appeal brought by a convicted killer who is arguing that the imposition of the mandatory death penalty in Trinidad and Tobago is unconstitutional.
In 2011, Jay Chandler was convicted of killing a fellow inmate at the remand section of the prison in Arouca in 2004. It was his second trial.
His appeals to the Court of Appeal and the Privy Council were denied, but in December 2020, he received permission from the London-based court to appeal his sentence.
His appeal is being heard by nine judges of the Privy Council, which is usually only done if the court is being asked to depart from a previous decision, if the case is of high constitutional importance and is of great public importance.
In Chandler’s case, not only are the judges being asked to hold that the mandatory death penalty in TT, as provided for in section 4 of the Offences Against the Person Act, is unconstitutional, but also to overturn the Privy Council decision in 2005 of Charles Matthew, which reinstated the mandatory death penalty.
Two days have been set aside for the hearing of the appeal in hybrid mode with Chandler’s local attorneys, Douglas Mendes, SC, and Rajiv Persad making submissions virtually from Trinidad, while his co-lead counsel, Edward Fitzgerald, QC, is at the Supreme Court building in London.
Also making up his legal team is Amanda Clift-Matthew for the UK-based human rights lobby Death Penalty Project. The team of local and UK attorneys is acting pro bono.
In London for the hearing are the attorneys for the State Fyard Hosein, SC, and the UK team of Howard Stevens, QC, Tom Poole, QC, and Hannah Fry.
Hearings began at 6.30 am (TT time) on Tuesday and will continue on Wednesday.
It is Chandler’s contention that TT is the only Commonwealth nation in the region to retain the mandatory death penalty and his attorneys have pointed to a 2018 ruling of the Caribbean Court of Justice (CCJ) in a Barbados case which declared the mandatory death penalty unconstitutional.
Fitzgerald, in his opening remarks, said Chandler’s appeal seeks to reverse Matthew to bring the practice in TT with the rest of the Commonwealth Caribbean to make the death penalty discretionary, not mandatory.
“We accept the death penalty cannot be voided. But it can be discretionary,” he said suggesting that the Privy Council will not be called on to invalidate section 4 of the Offences Against the Person Act find that it contravened the Constitution and modify it so it lines up with the rights and freedoms afforded to citizens.
He said a mandatory death penalty was cruel and unusual punishment and infringed the separation of powers, as it took away the Judiciary’s discretion to apply punishment based on the evidence of a case.
“The legislature has imposed this penalty and it takes away from the Judiciary the power of imposing the appropriate punishment (for murder). Determining the appropriate punishment is quintessentially a judicial function and
