Judical Comittee of the Privy Council
| Published date | 01 April 1976 |
| DOI | 10.1177/002201837604000208 |
| Date | 01 April 1976 |
| Subject Matter | Article |
Judical Comittee
of
the Privy Council
Comments
on
Cases
VALIDITY OF DEATH SE:\;TE:"iCE
de Freitas v, Benny
The
appellant
in this case was Michael de Freitas also known as
Michael
Abdul
Malik.
The
notoriety
surrounding
his conviction of
murder
is
not
equalled by the
importance
of
any
legal
problem
raised
by his appeals.
His
conviction was
upheld
by the
Court
of Appeal
and
by
the
Judicial
Committee
of
the Privy Council.
He
thereupon
applied
to the
High
Court
for a
declara
tion
that
the
carrying
out of the death
sentence would
contravene
his
human
rights recognised
and
protected
under
ss. 1
and
2
of
the
Trinidad
and
Tobago
(Constitution)
Order
in
Council, 1962.
This
application,
and
an
appeal
from it, were dismissed
and,
finally, the
Judicial
Committee
also declared
that
his claim was
erroneous.
Upon
the
constitutional
is-sue,
the
Board
held
that
he was
debarred
by s. 3
of
the
Constitution
from claiming
that
the executive act
of
carrying
out
the
death
sentence
pronounced
by a
court
of law
abrogated,
abridged-or
infringed
any
of his rights or freedoms recog-
nised
and
declared
in the
Constitution.
That
section preserved any
laws
that
were in force
at
the
commencement
of
the Constitution;
and
these
included
the
death
penalty.
A
further
legal issue,
and
one
of
more
general
importance,
was
raised by the
appellant.
He
claimed
that
he
had
been wronged by a
refusal to disclose to
him
the
material
furnished to the advisory com-
mittee
and
to the
Minister
on which the
Minister
had
tendered advice
to
the
Governor-General
as to the exercise
of
the prerogative
of
mercy.
This
claim
was
based
upon
the proposition
that
the consideration of the
question
of
mercy
by the advisory
committee
is a quasi-judicial process,
so
that
the
appellant
was entitled to
appear
before the
committee
at
a
hearing
at
which he is legally represented.
Assuming
the consideration
of
the
question
to be a quasi-judicial process, it would be a
breach
of
natural
justice
that
the
appellant
should
not
know the case against
him
or
be allowed to
attempt
to
answer
it.
The
Board
held, however,
that
at
common
law
the
prerogative
of
mercy is
purely
discretionary. As
Lord
Diplock
said
(at
p. 394f),
'Mercy
is
not
the
subject
of
legal rights.
It
begins
where
legal rights end. Aconvicted
person
has
no legal
right
114
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