Transitional Justice: To what Extent does Trinidadian Law Regarding Capital Punishment for Murder Continue to be Hindered from Progress on Account of British Colonialism, Inciting the Need for Legal Reform?
| Author | Amirah Adam |
| Position | LLB (Soton) |
| Pages | 104-136 |
(2022) Vol. 12
Transitional Justice: To What Extent Does Trinidadian Law Regarding
Capital Punishment for Murder Continue to be Hindered From Progress
on Account of British Colonialism, Inciting the Need for Legal Reform?
Amirah Adam
*
Abstract
This dissertation assesses the extent to which Trinidadian law regarding the mandatory death
penalty for murder, section 4 of the Offences Against the Person Act 1925, is impeded from
advancing due to the colonial residue that is inculcated in the constitution. Thereafter, the
question is prompted whether legal reform is necessary. It argues that on account of the
‘savings clause’1 that is imbued in the legislation, judicial review is inhibited. Thus, an ‘Act of
Parliament’2 is needed in order to progress. However, it is contended that the legislature is
hindered from interceding due to the executive and public’s stance on the retention of the
penalty. Thus, it seeks to identify whether the courts may be able to bolster advancement via a
counter-majoritarian role.3 Additionally, it is asserted that due to the state’s neglect of the Pratt
and Morgan v Attorney General for Jamaica4 ruling and its international human rights law
obligations, transitional justice is needed to redress the prolonged human rights abuses.
Therefore, this dissertation examines whether legal reform is a suitable course of action that
Trinidad and Tobago may undertake in order to rectify the colonial remnants in the system. It
is argued that the ‘savings clause’5 could be surmounted with sufficient support from the public,
executive, judiciary, and legislature thereby creating an avenue for individualized sentencing.
Thenceforth, a scheme may be instituted which assures the absolute nullification of the
mandatory death penalty. Consequently, Trinidad and Tobago may no longer be hindered from
progress on account of British colonialism, thus achieving transitional justice.
*LLB (Soton). Dissertation submitted in partia l fulfilment of the requirements for the degree of LLB.
1 The Constitution of the Republic of Trinidad and Tobago 1976, s 6(1).
2 Matthew v State of Trinidad and Tobago [2004] UKPC 33, [2005] 1 AC 433 [3-4] (Lord Hoffman); Roger Hood
and Florence Seemungal, ‘Public Opinion on the Manda tory Death Penalty In Trinidad’ (2011) A report to the
Death Penalty Project and the University of the West Indies Faculty of Law 6
<https://www.deathpenaltyproject.org/wp-content/uploads/2018/02/Public-Opinion-on-the-Mandatory-Death-
Penalty-in-Trinidad-Report-Final.pdf> accessed 13 November 2020.
3 Calvin R Massey, Brannon P Denning, American Constitutional Law: Powers and Liberties (6th Edn, WK 2019)
37.
4 [1993] UKPC 37, [1994] 2 AC 1.
5 The Constitution of the Republic of Trinidad and Tobago 1976, s 6(1).
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Introduction
his dissertation is analysed in three parts: it discusses whether the law regarding capital
punishment for murder in Trinidad and Tobago is inhibited from advancement due to
the colonial baggage ingrained in the Constitution, 6 thus inciting the need for
transitional justice and legal reform.
Colonialism: this dissertation illustrates that due to section 4 of the Offences Against the Person
Act 1925: ‘every person convicted of murder shall suffer death’, the colonial remnant: section
2 of the 1842 ‘Ordinance for Assimilating the laws of the Colony, relating to Offences against
the Person, to the laws of England in the like cases’ persists in Trinidadian legislation. For the
purposes of this dissertation, Privy Council decisions from other jurisdictions are generally
regarded as persuasive authority. This dissertation argues that the judiciary is blocked from
challenging the mandatory death penalty’s constitutionality on account of the ‘savings clause’
embedded in the Constitution.7 Thus far, the only way forward is ‘by an Act of Parliament’.8
However, the legislature is impeded from amending the law due to the pressure it bears from
the executive. Therefore, in this instance, the Trinidadian judiciary may serve a counter-
majoritarian role. Finally, it is argued that there is an irony that exists wherein the creators of
the penalty itself, the British legislators, advocate for its amendment whereas the government
of Trinidad and Tobago protects it from judicial review. It is contended that the executive
perpetuates the penalty due to the public’s wishes, ‘cultural exceptionalism’9 and to avoid the
‘overlegalization of international obligations’10 to human rights.
Transitional Justice: the lack of response to the extensive human rights transgressions in the
nation is evident from the state’s disregard for the Pratt and Morgan11 decision. Consequently,
convicts are often on death row for a period surpassing 5 years. Furthermore, it is asserted that
Trinidad and Tobago overlook its international commitments, particularly as regards the
American Declaration of Human Rights.12 Thus, transitional justice is arguably needed to
restore the nation following colonialism.
Legal Reform: on this basis, this dissertation contends that reform may be required in order to
remedy these human rights violations, as endorsed by the judiciary. Furthermore, as it is
apparent that the arguments against reform of the mandatory death penalty may be insufficient
to justify its existence when paired with the abuses it incites, this suggests that amending the
6 The Constitution of the Republic of Trinidad and Tobago 1976.
7 ibid s 6(1).
8 Matthew (n 2); Roger Hood and Florence Seemungal (n 2).
9 Roger Hood and Florence Seemungal, ‘Sentenced to Death Without Execution: Why capital punishment has not
yet been abolished in the Eastern Caribbean and Barbados’ (2020) A report to the Death Penalty Project 13
<https://www.deathpenaltyproject.org/wp-content/uploads/2020/04/2809872v1_WSDOCS_-Sentencing-to-
Death-Without-Execution-2020.pdf> accessed 12 November 2020.
10 Laurence R Helfer, 'Overlegalizing Human Rights: International Relations Theory and the Commonwealth
Caribbean Backlash against Human Rights Regimes' (2002) 102 CLR 1832, 1886.
11 Pra tt and Morgan (n 4).
12 American Declaration of the Rights and Duties of Man 1948.
T
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constitution may be the preferable approach for Trinidad and Tobago. Finally, an appropriate
plan for Trinidad and Tobago to undertake may be: to circumvent the ‘savings clause’13 with
the countenance of all the limbs of the state (the public, judiciary, executive and legislature),
the introduction of a discretionary power over the sentence in order to facilitate individualized
sentencing and a strategic approach towards the abolition of capital punishment for murder.
Thenceforth, Trinidad and Tobago may redress the legacy of human rights violations, realize
transitional justice and overcome its colonial baggage as regards capital punishment for murder.
13 The Constitution of the Republic of Trinidad and Tobago 1976, s 6(1).
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