Constitutional, but unjust | Columnist

Element I

Like numerous other people, I was awaiting the judgment of the Privy Council in the Chandler circumstance involving the preservation of the required dying penalty by virtue of the price savings clause in our Constitution. I experienced hoped that the Privy Council would have found a path to undertake the jurisprudence of the Caribbean Court docket of Justice, as expressed in Nervais and McEwan.

Nonetheless, I was let down, but not shocked. Lord Hodge’s judgment is creditable and perfectly-prepared, tracing in element the background of the challenges prior to the Privy Council on this problem heading back again to the early 2000s, and also giving the reasoning of the CCJ thanks pounds, regard and interest. I will study the Privy Council’s critique of CCJ jurisprudence independently.

The Privy Council decries the required loss of life penalty as staying “cruel and strange punishment”, which would be opposite to Sections 4 and 5 of our Constitution, which enshrine particular person legal rights. But the penalty is instituted by Segment 4 of the Offences Towards The Man or woman Act of 1925, which regulation is “saved” by Area 6 of the very Structure which suggests that it overrides or dis-applies Sections 4 and 5. We had the opportunity in the 1976 Structure to excise or restrict or amend the personal savings clause, and we did not do so. In thinly veiled language, the Privy Council, in its closing paragraph, states: “It is hanging that there remains on the statute guide a provision which, as the authorities accepts, is a cruel and uncommon punishment mainly because it mandates the death penalty devoid of regard to the diploma of culpability.”

In outcome, then, the Privy Council, like most ideal-considering individuals, acknowledges that the regulation as it stands is unjust. Nevertheless, the Privy Council concludes, “it is not unconstitutional”. Its arguments are by no implies flimsy.

To start with, they invoked the basic principle of stare decisis and the require for “legal certainty” that this theory gives. Overturning the the greater part in the 9-member panel in Matthew could not be accomplished flippantly. Second, the CCJ selections in Nervais and McEwan are distinguishable from Matthew.

In Trinidad and Tobago, the normal and endless price savings clause was retained in 1976 by a Parliament of a nation which experienced turn into unbiased 14 years previously. The Privy Council mentioned: “It was a conscious democratic decision to protect existing legal guidelines and not to transform the financial savings clause into a transitional provision… Parliament experienced the solution of dispensing with a cost savings clause at that time and intentionally chose not to do so.” Third, they argue, appropriately in my look at, that the modification clause in the Structure Act can not be made use of to dilute the influence of the discounts clause which is in the Constitution alone and which has priority. Additionally, whilst the interpretation of legal rights clauses (Sections 4 and 5) may perhaps evolve, the “meaning and reason of a financial savings clause which preserves existing legislation does not improve above time”.

The fourth argument fears the separation of powers, which the Privy Council argues “is not an overriding principle that exists independently of a Structure but is implicit in a Constitution obtaining regard to the powers of the judiciary, the legislature and the executive which are laid down expressly or by implication in a Constitution”. It is not a “higher authorized norm above the Constitution” which prohibits the legislature from mandating a particular punishment for a specific criminal offense or which the judiciary can invoke to overturn or invalidate this sort of a legislation.

In response to comparable “rule of law” arguments, the Privy Council asserted: “The Board is not persuaded that it is feasible to erect the rule of regulation into a justiciable unwritten basic principle which can be divided and untethered from the particular provisions of the 1976 Structure.”

In which our judges could not escape the clutches of the personal savings clause, they have chafed at but dutifully adopted Privy Council jurisprudence, while the CCJ has created daring to depart from it. The savings clause occurs not only on the lifetime-and-dying issue of the obligatory loss of life penalty, but also discrimination towards females, sexual offences, immigration laws, community wellbeing restrictions which are all caught in the “time warp” of colonial legislation. But why have our politicians more than just about 50 several years, in the experience of judicial turmoil on the demise penalty and other attacks on the rights of citizens from the colonial previous, refused to confront and offer with it? Component of the respond to lies in avoidance of the tricky function essential to determine and reform all those offensive but “saved” colonial rules and so hold faith with the essential concepts of our Constitution. It could not be, could it, that we just like it so?

Where does the Chandler selection go away us? It leaves us with a law on the books which is unjust. The Privy Council looks to consider some comfort in the actuality that there have been no executions here considering the fact that 1999, while this is the combined influence of Pratt and Morgan and the sloth of the criminal justice system. It leaves us with a Judiciary which would be confined to interpreting and making use of current legislation, even the Constitution itself, and not always performing justice.

We find ourselves in a area equivalent to apartheid South Africa within just a “wicked authorized system” with judges enjoined by our highest appellate court to handcuff on their own and utilize the regulations enacted by colonial legislatures in the distant past, having said that unjust all those guidelines could be. We have legality but not legitimacy, legislation but not justice. If the role of the Judiciary is to do justice, then it has a duty to strike down unjust legal guidelines. Ironically, our Structure (Portion 13) enables the court docket to do specifically this the place “…the Act is shown not to be reasonably justifiable in a society that has a right regard for the legal rights and freedoms of the individual”. But as Chandler, upholding Matthew, has affirmed, it simply cannot do so wherever an unjust (colonial) law is saved by Part 6!

• Portion II tomorrow