Matthew v The State (Trinidad and Tobago)  UKPC 33 (07 July 2004)
Privy Council Appeal No. 12 of 2004
Charles Matthew Appellant
The State Respondent
THE COURT OF APPEAL OF TRINIDAD
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 7th July 2004
Present at the hearing:-
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Mr. Justice Edward Zacca
[Majority judgment delivered by Lord Hoffmann]
- The issue in these appeals is the constitutionality of the mandatory death penalty in Trinidad and Tobago. The relevant provisions of the constitution are sections 2, 4 and 5, and 6(1). Section 2 says that the constitution shall be the supreme law of Trinidad and Tobago and that any other law shall be "void to the extent of the inconsistency". Section 4 declares the "right of the individual to life" and section 5(2)(b) says that Parliament "may not impose or authorise the imposition of cruel and unusual treatment or punishment". But section 6(1) provides that "nothing in sections 4 and 5 shall invalidate … an existing law". The law decreeing the mandatory death penalty was an existing law at the time when the constitution came into force and therefore, whether or not it is an infringement of the right to life or a cruel and unusual punishment, it cannot be invalidated for inconsistency with sections 4 and 5. It follows that despite section 2, it remains valid.
- The language and purpose of section 6(1) are so clear that whatever may be their Lordships' views about the morality or efficacy of the death penalty, they are bound as a court of law to give effect to it. As Lord Bingham of Cornhill said in Reyes v The Queen  2 AC 235, 246, "The court has no licence to read its own predilections and moral values into the constitution". And their Lordships do not understand the appellant to dispute that if one simply reads the constitution, there is no basis for holding the mandatory death penalty invalid for lack of consistency with sections 4 and 5.
- This is a very important point. It is not suggested that there is any ambiguity about the constitution itself. It is accepted that it is simply not susceptible to a construction, however enlightened or forward-looking, which would enable one to say that section 6(1) was merely a transitional provision which somehow and at some point in time had become spent. It stands there protecting the validity of existing laws until such time as Parliament decides to change them.
- Recognising this difficulty, the main argument advanced by Mr Fitzgerald QC for the appellant is that a provision in the Act of Parliament which brought the constitution into effect but did not form part of the constitution itself requires the existing law so far as possible to be modified to conform to sections 4 and 5 and that such conformity can be achieved by deeming the death penalty to be discretionary.
- For substantially the reasons given by their Lordships in their judgment delivered today in Boyce and Joseph v R, they regard this argument as completely untenable. It is incompatible with the status of the constitution as the supreme law of Trinidad and Tobago and arbitrary to the point of absurdity in its results. It follows that it must be rejected.
- The result is that although the existence of the mandatory death penalty will not be consistent with a current interpretation of sections 4 and 5, it is prevented by section 6(1) from being unconstitutional. It will likewise not be consistent with the current interpretation of various human rights treaties to which Trinidad and Tobago is a party. Their Lordships have anxiously considered whether there is some possible construction of the constitution which would avoid these results and have concluded that none exists. Their Lordships naturally respect the views of the minority who see more merit in Mr Fitzgerald's argument but since their opinion does not deal with the objections which their Lordships regard as insuperable, they remain unpersuaded. It follows that the decision as to whether to abolish the mandatory death penalty must be, as the constitution intended it to be, a matter for the Parliament of Trinidad and Tobago.
- The effect of today's decision is to overrule the recent case of Roodal v State of Trinidad and Tobago  2 WLR 652. Henceforth the death sentence for murder will continue to be mandatory. But for reasons which their Lordships will explain, they do not think it would be fair to deprive anyone presently under sentence of death of the benefit of the Roodal decision. They will accordingly allow the appeal against sentence and substitute a sentence of imprisonment for life.
- On 3 December 1999 the appellant was convicted at the Port of Spain Assizes of the murder of Louise Gittens and sentenced to death. On 1 December 2000 the Court of Appeal dismissed his appeal against the conviction. He petitioned the Privy Council for special leave to appeal against conviction and sentence. On 12 May 2003 the petition for leave to appeal against the conviction was dismissed. But on 12 January 2004 the Judicial Committee granted leave to appeal against sentence. The only ground for appeal is that the judge wrongly thought that the death sentence was mandatory. It is submitted that in fact it had become discretionary in one of three ways: by virtue of a provision in the Interpretation Act Chapter 3:01 or by a necessary modification pursuant to section 5(1) of the Constitution of the Republic of Trinidad and Tobago Act 1976 Chapter 1:01 or to comply with the principle of the separation of powers.
- The same submissions were advanced in the recent case of Roodal v State of Trinidad and Tobago  2 WLR 652, when a combination of the first two arguments was accepted by a majority of the Board. Subsequently, at the hearing of the appeals in Boyce and Joseph v The Queen, a case from Barbados which raised very similar questions, doubts were expressed about the correctness of the decision in Roodal. The appeals were adjourned to be reargued before an enlarged Board, together with this appeal and an appeal from Jamaica which was also thought to involve similar issues. The purpose of the combined hearing was to arrive at a definitive ruling which could be applied to all the constitutions having similar provisions in countries for which the Privy Council is the final court of appeal.
- In its judgment delivered today in Boyce and Joseph v The Queen the Board has rejected the reasoning in Roodal and decided that the law imposing a mandatory death penalty for murder in Barbados remains valid. Their Lordships do not propose to repeat all that was said in their judgment in that case, to which reference should be made. They will confine themselves to setting out the relevant legislation in Trinidad and Tobago and explaining why the reasoning in Boyce and Joseph v The Queen also leads to the conclusion that the law imposing the mandatory death penalty for murder in Trinidad and Tobago remains valid. It will then be necessary to consider the practical consequences of the decision that Roodal was wrongly decided.
- The mandatory death penalty in Trinidad and Tobago is contained in section 4 of the Offences Against the Person Act Chapter 11:08: "Every person convicted of murder shall suffer death". On the other hand, section 4 of the 1976 Constitution contains a declaration that certain fundamental human rights and freedoms "have existed and shall continue to exist". Among these is the "right of the individual to life". Section 2 declares the Constitution to be the supreme law of Trinidad and Tobago and provides that any law inconsistent with the Constitution shall be "void to the extent of the inconsistency". Section 5(1) reinforces the declaration of supremacy in section 2 by providing that "no law may abrogate, abridge or infringe" any of the recognised rights and freedoms and section 5(2)(b) says specifically that Parliament may not impose or authorise the imposition of cruel and unusual treatment or punishment.
- Their Lordships consider that for reasons similar to those given in Reyes v The Queen  2 AC 235 and Boyce and Joseph v The Queen the mandatory death penalty is a cruel and unusual punishment and therefore inconsistent with sections 4(a) and 5(2)(b) of the Constitution. Their Lordships note that Trinidad and Tobago is, like Barbados, a party to the International Covenant on Civil and Political Rights and a member of the Organisation of American States and that the Human Rights Committee and Inter-American Commission have both decided that the mandatory death penalty is inconsistent with the international law obligations created by adherence to the ICCPR and membership of the OAS respectively: see Kennedy v Trinidad and Tobago (2002) CCPR/C/67/D/845/1998 and Edwards v The Bahamas (2001) Report No 48/01. The principle that domestic law should so far as possible be interpreted consistently with international obligations and the weight of opinion expressed in domestic cases decided in other jurisdictions supports the conclusion that sections 4 and 5 the Constitution should be similarly interpreted. For further discussion on this point, their Lordships refer to the judgment in Boyce and Joseph v The Queen.
- The question in this case, however, is whether inconsistency with sections 4 and 5 has any effect on the validity of the mandatory death penalty. Section 6(1) contains an exception to the operation of the previous two sections:
"Nothing in sections 4 and 5 shall invalidate -
(a) an existing law;
(b) an enactment that repeals and re-enacts an existing law without alteration; or
(c) an enactment that alters an existing law but does not derogate from any fundamental right guaranteed by this Chapter in a manner in which or to an extent to which the existing law did not previously derogate from that right."
- The Offences Against the Person was passed in 1925, replacing earlier similar legislation. It therefore cannot be invalidated by anything in sections 4 or 5. As the Constitution contains no other provisions which can affect its operation or validity, it follows that if one is concerned only to construe the Constitution as the supreme law of Trinidad and Tobago, there is no basis for challenge.
- The submission of Mr Fitzgerald is that a power (or duty) to modify section 4 of the Offences Against the Person Act can be derived from section 5(1) of the 1976 Act:
"Subject to the provisions of this section, the operation of the existing law on and after the appointed day shall not be affected by the revocation of the Order in Council of 1962 but the existing laws shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Act."
- He submits that section 6(1) does not mean that sections 4 and 5 have no application to an existing law. It says only that those sections shall not "invalidate" such a law. This is by contrast with section 3(1) of the previous (1962) constitution, which said that the equivalent sections should "not apply" in relation to any existing law. Mr Fitzgerald described that subsection as a "shut-out" clause which precluded any judicial examination of whether an existing law was in conformity with the sections declaring human rights and fundamental freedoms. But the fact that sections 4 and 5 cannot invalidate an existing law does not mean that the law is deemed to be in conformity with them. The court is still obliged by section 5(1) of the 1976 Act to modify the existing law to bring it into conformity with sections 4 and 5. The only thing that it cannot do is wholly to invalidate such a law.
- Their Lordships reject this submission for much the same reasons as they rejected a similar submission in Boyce and Joseph v The Queen. It is inconsistent with the supremacy of the Constitution, irrational in its consequences and contrary to the language and purpose of section 5(1) of the 1976.
- A reading of the Constitution, without reference to the 1976 Act, leaves no doubt that sections 4 and 5 are not intended to have any effect on existing laws. The only way in which the Constitution provides for those sections to affect any laws is by its express provisions for the invalidity of any laws inconsistent with them: by the provision for such laws being "void to the extent of the inconsistency" in section 2 and the provision in section 5(1) that "no law may" abrogate the declared rights and freedoms and the provision in section 5(2) that "Parliament may not" do the specified acts. This is the language of invalidity. When section 6(1) provides that nothing in sections 4 and 5 shall invalidate an existing law, it precisely mirrors the effect which sections 2, 4 and 5 would otherwise have.
- Their Lordships see no significance in the change of language from "shall not apply" to "shall not invalidate". If there was any deep purpose in this change, a reader of the Constitution would find it remarkably obscure. The effect is exactly the same. If some reason is required, it probably lies in the language of the declaration of supremacy in section 2 - "void to the extent of the inconsistency" – which was new to the 1976 Constitution and which the draftsman thought it convenient to mirror with the words "Nothing … shall invalidate".
- If the Constitution itself shows a plain intention to preserve existing laws, their Lordships find it impossible to accept that Parliament, by enacting section 5(1) of the 1976 Act, can have created a mechanism outside the Constitution for undermining the effect of its provisions. It is true that such a provision, enacted by a sovereign Parliament, would not have been ultra vires in the same way that their Lordships considered the equivalent provision in the Barbados Independence Order 1966 SI 1455 would have been: see Boyce and Joseph v The Queen. But section 5(1) was a virtually word for word reproduction of section 4(1) of the Trinidad and Tobago (Constitution) Order in Council 1962 SI 1962 No. 1875, which brought the 1962 Constitution into effect and it is difficult to believe that it was intended to serve a different purpose.
- The irrational consequences of the construction for which Mr Fitzgerald contends, namely that any law incapable of modification or adaptation remains valid, are fully discussed in Boyce and Joseph v The Queen and the Board adopts its reasoning in that case. The Board accepts that the power of modification conferred by section 5(1) is extremely wide (see the passage from the judgment of de la Bastide CJ in Roodal, quoted in  2 WLR at p. 662) although on Mr Fitzgerald's argument it is necessary, in order to leave some work for section 6(1) to do, to suppose that in some cases inconsistency with sections 4 or 5 can result in nothing short of total invalidity. It is that which produces the absurd consequence that the survival of a law which is ex hypothesi inconsistent with sections 4 and 5 depends upon its form rather than its substance.
- On the other hand, a rational scheme results from construing the power of modification, however broad, to be directed to the preservation of those parts of an existing law which are consistent with the Constitution. In such a case, if the form of the legislation is that some part can be retained, the remedy is modification under section 5(1) to remove the part which is offensive. If the whole is offensive, it is invalidated. In either case, it is only the offensive provisions which are struck down and this is done on the basis of substance rather than form.
- This purpose appears from the language of section 5(1) even more clearly than it does from the equivalent provision in the Barbados Order in Council. The opening words are that "the operation of the existing laws shall not be affected" by the new Constitution but they "shall be construed" with appropriate modifications. This language shows that purpose of the section is to preserve those parts of the laws which are not in substance inconsistent with the Constitution but which, in the absence of a power of modification, might be invalidated because as a matter of form they were bound up with provisions to which objection could be made.
- Mr Fitzgerald argued that, despite the fact that his construction of section 5(1) would be irrational, contrary its evident purpose and subversive of the supremacy of the Constitution, it should be adopted to give effect to international obligations and a judicial policy of keeping the Constitution up to date. A similar submission was made by Mr Starmer QC in Boyce and Joseph v The Queen and their Lordships reject it for the same reasons.
- Their Lordships now turn to the argument based upon section 68(2) of the Interpretation Act:
"Where in any Act or statutory instrument provision is made for any minimum penalty or fine, or for any fixed penalty or fine, as a punishment for a criminal offence, such Act or statutory instrument shall have effect as though no such minimum penalty or fine had been provided, or as though the fixed penalty or fine was the maximum penalty or fine, as the case may be."
- The submission is that the death penalty is a "fixed penalty" and that this section, first enacted in 1941, made it a maximum penalty. Their Lordships consider that no one can ever have thought of the death penalty as a fixed penalty within the meaning of this Act. Nor does it help to treat section 68(1) as "always speaking", as section 10 of the same Act enjoins one to do. The death penalty was and remains a punishment in an altogether different category from the "fixed penalty" contemplated by the Act. Nothing that has happened since 1941 has brought it into the same category. The fact that in 1941 the mandatory death penalty was more generally accepted than it is today cannot bring it into the same category of punishment as the fixed penalties contemplated by section 68(2). So to construe the Act would not be, in the language of section 10, "according to its true spirit, intent and meaning".
- Mr Fitzgerald's third argument was that the mandatory death penalty is contrary to the principle of the separation of powers. The decision as to whether the sentence should be commuted or the sentence carried into execution is vested in the President by section 87 of the Constitution, acting on the advice of the Advisory Committee constituted under section 88. The President, as the executive authority (section 74), is thereby exercising a sentencing function which properly belongs to the judiciary.
- As their Lordships observed in Boyce and Joseph v The Queen, the principle of the separation of powers is not an overriding supra-constitutional principle but a description of how the powers under a real constitution are divided. Most constitutions have some overlap between legislative, executive and judicial functions. The only question for their Lordships is whether the mandatory death penalty is in accordance with the actual constitution of Trinidad and Tobago. As the constitution itself makes express provision for the exercise of the power of commutation by the President and preserves the mandatory death penalty, their Lordships do not think there is some other principle by which these laws can be invalidated.
- For these reasons their Lordships consider that Roodal was wrongly decided. Mr Fitzgerald submitted that it should nevertheless be followed. In the ordinary way, that would be right. It is not the practice of their Lordships to depart from a previous decision merely because the Board as later constituted thinks that it was wrongly decided. But the present enlarged Board was constituted for the purpose of deciding whether Roodal should be followed not only in Trinidad and Tobago but also in other Caribbean states which have similar constitutions and a right of appeal to the Privy Council. Their Lordships consider that it would be impossible to apply it to other countries merely for conformity with Trinidad and Tobago but equally impossible to declare that it was not the law in other countries but still formed part of the law of Trinidad and Tobago.
- That nevertheless leaves a serious problem. The appellant in this appeal, Mr Matthew, was given to understand in consequence of Roodal that the question of whether he should be sentenced to death would now be considered by a judge. Mr Roodal himself is no doubt awaiting a similar hearing and there may be others in the same position. But the effect of their Lordships' decision today is that a judge would have no discretion to change a death sentence which has already been imposed according to law. Such a resentencing cannot therefore take place.
- On the other hand, simply to leave the sentence to be carried out, subject to the decision of the President, appears to their Lordships unfair to Mr Matthew. He has been given the expectation of a review of his sentence, additional to the possibility of presidential commutation, of which he is now deprived. Their Lordships think that it would be a cruel punishment for him to be executed when that possibility has been officially communicated to him and then been taken away. There is an analogy with Pratt and Morgan v Attorney-General for Jamaica  2 AC 1. In that case the Board said (at p. 33) that while the death penalty itself was not inhuman punishment, "to execute these men now after holding them in an agony of suspense after so many years" would be. The same is true of executing them after informing them (at the time correctly) that the law would give them the opportunity to persuade a judge to impose a lesser sentence and then denying them that opportunity.
- In Pratt and Morgan their Lordships exercised the power vested in the Supreme Court of Jamaica by the constitution to make "such orders … as it may consider appropriate for the purpose of enforcing … any of the provisions [relating to human rights and fundamental freedoms]" by allowing the appeal and commuting the death sentence to life imprisonment. There is a similar power in section 14(2) of the Constitution of Trinidad and Tobago. Pursuant to this power, their Lordships will allow the appeal, set aside the sentence of death and impose a sentence of life imprisonment.
- In their Lordships' opinion, the same considerations apply to anyone else sentenced to death and awaiting execution at the date of this judgment. Such persons may be fortunate because Roodal left open the possibility that the judge could still as a matter of discretion sentence them to death. However, in the absence of a judicial discretion as to sentence, their Lordships see no alternative course which it would be fair to take. On the other hand, the same considerations do not apply to persons convicted and sentenced to death after the date of this judgment, even though they may have been awaiting trial at the time of the Roodal decision. There is again an analogy with the Pratt and Morgan principle as applied by the Board in Fisher v Minister of Public Safety and Immigration  AC 673. In that case it was held that pre-trial delay did not count as part of the period after which an execution would be presumed to be cruel and inhuman. Lord Goff of Chieveley said that the state of mind of the accused before trial is not "the agony of mind of a man facing execution" but the somewhat different anxieties of a person who faces the possibility of conviction and sentence. There is obviously some common element but their Lordships do not think it is sufficient to justify treating the case as the same as that of a person actually sentenced to death.
Dissenting judgment by Lord Bingham of Cornhill,
Lord Nicholls of Birkenhead, Lord Steyn and
Lord Walker of Gestingthorpe
- In recent years the Privy Council has generally shown itself to be an enlightened and forward-looking tribunal. It has of course recognised that the provisions of any constitution must be interpreted with care and respect, paying close attention to the terms of the constitution in question. But it has also brought to its task of constitutional adjudication a broader vision, recognising that a legalistic and over-literal approach to interpretation may be quite inappropriate when seeking to give effect to the rights, values and standards expressed in a constitution as these evolve over time. It is such an approach which Lord Wilberforce stigmatised, in the phrase of Professor de Smith which he made famous, as "the austerity of tabulated legalism": de Smith, The New Commonwealth and its Constitutions (1964), p 194; Minister of Home Affairs v Fisher  AC 319, 328. It is such an approach also which, in our opinion, vitiates the reasoning of the decision of the majority in this appeal. We consider the decision of the majority to be unsound in law and productive of grave injustice to a small but important class of people in Trinidad and Tobago. It is in our opinion clear that the interpretation of the 1976 Constitution of Trinidad and Tobago which commends itself to the majority does not ensure the protection of fundamental human rights and freedoms, degrades the dignity of the human person and does not respect the rule of law. With much regret, but without doubt, we dissent from the majority decision.
- Two points must be very clearly understood at the outset. First, this appeal does not in any way concern the constitutionality of the death penalty in Trinidad and Tobago. The appellant accepts (as did the appellant in Roodal v State of Trinidad and Tobago  UKPC 78,  2 WLR 652 in argument before the Board) that a defendant convicted of committing a murder with the intent needed to constitute that offence in law may, consistently with the Constitution, be sentenced to death and executed. In other places and at other times the death penalty itself has been the subject of acute legal controversy; it is accepted that the provisions of the Constitution now preclude such controversy in Trinidad and Tobago. This appeal concerns, and concerns only, the constitutionality of the mandatory death penalty for murder: that is, the constitutionality of the law which requires sentence of death to be imposed on anyone convicted of murder, without regard to the circumstances of the offence or the offender or to any features which may tend to mitigate the gravity of the crime, and without giving the defendant any opportunity to address the judge and advance reasons why he does not deserve to die. Under the law as enacted and hitherto understood in Trinidad and Tobago, the judge has no choice but to pass sentence of death. Section 4 of the Offences Against the Person Act 1925 provides that "Every person convicted of murder shall suffer death". It is that absence of choice which the appellant attacks as unconstitutional.
- Secondly, the State accepts that the mandatory death penalty for murder amounts to "cruel and unusual treatment or punishment" within the meaning of the Constitution. That was the conclusion unanimously reached by the Board when it considered the mandatory death penalty in Belize in Reyes v The Queen  UKPC 11,  2 AC 235, relying on authorities and materials derived from Belize, Canada, Guyana, India, St Lucia, South Africa, the United Kingdom, the United States, the European Court of Human Rights, the Human Rights Committee established under the International Covenant on Civil and Political Rights and the Inter-American Commission on Human Rights. The correctness of this conclusion and its applicability to the mandatory death penalty in Trinidad and Tobago are accepted. It may seem surprising that the respondent State should strive to uphold a right to subject its citizens to what it acknowledges to be cruel and unusual treatment or punishment, but that is what it seeks to do and what the majority hold it is entitled to do.
- Trinidad and Tobago became independent in 1962 under a Constitution which, in section 1, recognised and declared that certain human rights and fundamental freedoms had existed and should continue to exist without discrimination. These rights were listed in section 1 in a manner based on the Canadian Bill of Rights of 1960 rather than, as in some other countries in the Caribbean, directly on the European Convention on Human Rights. But the Canadian Bill of Rights drew its inspiration from the European Convention and the Universal Declaration of Human Rights 1948. Section 2 of the 1962 Constitution provided that subject to sections 3 (existing laws), 4 (public emergency) and 5 (Acts passed with an enhanced majority), no law should abrogate, abridge or infringe any of the rights and freedoms listed, and in particular no Act of Parliament should "(b) impose or authorise the imposition of cruel and unusual treatment or punishment". It was then however provided in section 3(1) of the Constitution that "Sections 1 and 2 of this Constitution shall not apply in relation to any law that is in force in Trinidad and Tobago at the commencement of this Constitution". There was thus (in section 1) a presumption of past and a promise of future enjoyment of the listed rights, but (in section 3) an absolute exclusion of laws in force on the commencement of the Constitution ("existing laws") from the scope of sections 1 and 2. It is plain that sections 1 and 2 could not be relied on to challenge an existing law since sections 1 and 2 did not apply to any existing law. Thus the presumption of compliance was conclusive and irrebuttable, and the Board so held in de Freitas v Benny  AC 239 and Maharaj v Attorney-General of Trinidad and Tobago (No 2)  AC 385. It follows that the power conferred by section 4 of the Trinidad and Tobago (Constitution) Order in Council 1962 (SI 1962/1875) could never be invoked to rectify an existing law said to be inconsistent with sections 1 and 2 of the Constitution, for the reason already given: that those sections did not apply to existing laws.
- In 1962 the presumption of compliance was fully understandable. On ratifying the European Convention in March 1951 the United Kingdom had believed its domestic laws to comply with the requirements of the European Convention, and after the Convention had come into force in September 1953 it had acted swiftly (in October 1953) to extend the application of the Convention to a large number of its dependent territories overseas, including Trinidad and Tobago. Between 1953 and 1962 no violation of the Convention had been established against the United Kingdom or the colonial government of Trinidad and Tobago.
- The Constitution adopted in 1976 (in which expression we include the 1976 Act to which it was scheduled) departed from its 1962 predecessor in certain important respects while following it in other respects which are also important. First, the State became a republic. This marked a significant departure not only from the history of Trinidad and Tobago since the early nineteenth century but also from its history since 1962. Secondly, the 1976 Constitution declared in its preamble, as the 1962 Constitution had also done, the principles upon which the State was founded. These included "faith in fundamental human rights and freedoms", "the dignity of the human person", "the rule of law" and, in (e), the desire of the people
"that their Constitution should enshrine the above-mentioned principles and beliefs and make provision for ensuring the protection in Trinidad and Tobago of fundamental human rights and freedoms."
Thirdly, the 1976 Constitution was declared (in section 2) to be the supreme law of Trinidad and Tobago, and any other law inconsistent with the Constitution was to be void to the extent of the inconsistency. Fourthly, it was again recognised and declared (this time in Chapter I, section 4) that certain fundamental human rights and freedoms had existed and should continue to exist in Trinidad and Tobago without discrimination. The rights were listed in the same terms as in 1962. Fifthly, it was provided (in section 5(1)) that except as otherwise expressly provided in Chapter I and in section 54 (constitutional amendment), no law might abrogate, abridge or infringe the listed rights and freedoms and, in section 5(2), that without prejudice to subsection (1) but subject to Chapter 1 and section 54, Parliament might not "(b) impose or authorise the imposition of cruel and unusual treatment or punishment". Sixthly, it was provided in section 6(1):
"Nothing in sections 4 and 5 shall invalidate –
(a) an existing law;
(b) an enactment that repeals and re-enacts an existing law without alteration; or
(c) an enactment that alters an existing law but does not derogate from any fundamental right guaranteed by this Chapter in a manner in which or to an extent to which the existing law did not previously derogate from that right."
"Existing law" was defined to mean, so far as relevant for present purposes, a law in force immediately before the commencement of the Constitution: section 6(3). Seventhly, it was provided in section 5(1) of the 1976 Act that revocation of the 1962 Order in Council should not, subject to the provisions of that Act, affect the operation of existing law,
"but the existing laws shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Act."
A similar, but discretionary and time-limited, power was conferred on the President, (in whom the executive authority of the State was vested by section 74 of the Constitution) "without prejudice, however, to any powers conferred by any law upon any other person or authority to modify any existing law": section 5(2) of the 1976 Act. Lastly, section 14 of the 1976 Constitution followed section 6 of the 1962 Constitution in giving the High Court a broad power to hear applications by those complaining that the human rights provisions of the Constitution had been or were likely to be contravened in relation to them, and to give effective redress.
- This appeal turns on the proper approach to and construction of three provisions of the 1976 Act and Constitution in particular: section 2 of the Constitution, which provides in unqualified terms that any law inconsistent with the Constitution shall be void to the extent of the inconsistency; section 6(1)(a) of the Constitution which provides that nothing in sections 4 and 5 (of the Constitution) shall invalidate an existing law; and section 5(1) of the Act, which imposes a mandatory obligation to construe existing laws with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution. How, read together and in the context of the Constitution as a whole, are these provisions to be understood?
- The majority give section 6 of the 1976 Constitution the same effect as section 3 of the 1962 Constitution. Thus sections 4 and 5 of the 1976 Constitution do not apply to an existing law such as section 4 of the Offences Against the Person Act 1925. Since those sections do not apply to existing laws, there can be no inconsistency between an existing law and the human rights protected by the Constitution, and no question of modification under section 5(1) of the Act can arise. The alternative construction of the Constitution, which we prefer, accepts that sections 4 and 5 cannot be relied on to make an existing law null and void, or to deprive it of all legal efficacy, but holds that section 5(1) of the Act can be used to modify existing laws so as to bring them into conformity with the Constitution so long as such modification does not render the existing law null and void or deprive it of all legal efficacy. This was the conclusion reached by a majority of the Board, in our view rightly, in Roodal. Our reasons for reaching the conclusion we do are cumulative, and are summarised in the paragraphs which follow.
- The correct approach to interpretation of a constitution such as that of Trinidad and Tobago is well-established by authority of high standing. In Edwards v Attorney-General for Canada  AC 124, 136, Lord Sankey LC, giving the judgment of the Board, classically described the constitution established by the British North America Act 1867 as "a living tree capable of growth and expansion within its natural limits". The provisions of the Act were not to be cut down "by a narrow and technical construction", but called for "a large and liberal interpretation". Lord Wilberforce spoke in similar vein in Minister of Home Affairs v Fisher  AC 319, 328-329, when he pointed to the need for a "generous interpretation", "suitable to give to individuals the full measure of the fundamental rights and freedoms referred to" in the constitution and "guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences". The same approach was commended by Dickson J, giving the judgment of the Supreme Court of Canada in Hunter v Southam Inc  2 SCR 145, 155:
"The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind. Professor Paul Freund expressed this idea aptly when he admonished the American courts 'not to read the provisions of the Constitution like a last will and testament lest it become one'."
In Attorney-General of Trinidad and Tobago v Whiteman  2 AC 240, 247, Lord Keith of Kinkel, giving the judgment of the Board, said:
"The language of a Constitution falls to be construed, not in a narrow and legalistic way, but broadly and purposively, so as to give effect to its spirit, and this is particularly true of those provisions which are concerned with the protection of human rights."
Reference may also be made to Attorney-General of The Gambia v Momodou Jobe  AC 689, 700, Vasquez v The Queen  1 WLR 1304, 1313, and Reyes v The Queen  UKPC 11,  2 AC 235, paragraphs 25-26.
- Section 10(1) of the Trinidad and Tobago Interpretation Act 1962 provides that "Every written law shall be construed as always speaking". This is a general principle of statutory interpretation, but it applies with particular force to constitutions. Their effect may change over time, and is not frozen at the historical moment of birth.
- While entrenched human rights provisions expressed in a codified constitution are, like the other provisions of the constitution, a manifestation of the popular will, they nonetheless have a special place. As James Madison said in 1789, when commending what became the Bill of Rights in the United States Constitution, a Bill of Rights would have "a salutary effect against the abuse of powers" because
"independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights":
see Bernard Schwartz, The Great Rights of Mankind: A History of the American Bill of Rights (1992), p 168. Madison recognised risks of abuse by the legislative power as by the executive and also "the body of the people, operating by the majority against the minority": ibid, p 169. Constitutional protection of human rights of course operates for the benefit of all the citizens of any state. But it is of particular importance to the weakest and most vulnerable members of society, who lack wealth and influence, among whom those subjected to admittedly cruel and unusual treatment or punishment must ordinarily be included.
- In contrast with the broad and liberal construction to be given to constitutional provisions generally, and in particular those directed to the protection of human rights, the proper approach to the interpretation of savings clauses should be strict and narrow. This point was clearly made by the Board very recently when, construing a savings provision in the Constitution of St Lucia in R v Hughes  UKPC 12,  2 AC 259, paragraph 35, Lord Rodger of Earlsferry said:
"Since paragraph 10 introduces these exceptions to the rights and protection which people would otherwise have under the Constitution, it must be construed like any other derogation from constitutional guarantees. In State v Petrus  LRC (Const) 699, 720D-F in the Court of Appeal of Botswana, Aguda JA referred to Corey v Knight (1957) 150 Cal App 2d 671 and observed that 'it is another well known principle of construction that exceptions contained in Constitutions are ordinarily to be given strict and narrow, rather than broad, constructions'. In case of doubt paragraph 10 should therefore be given a strict and narrow, rather than a broad, construction."
- We attach significance to the principles upon which, as declared in the preamble to the 1976 (as to the 1962) Constitution, the people of Trinidad and Tobago resolved that their state should be founded. This declaration, solemnly made, is not to be disregarded as meaningless verbiage or empty rhetoric. Of course, the preamble to a statute cannot override the clear provisions of the statute. But it is legitimate to have regard to it when seeking to interpret those provisions (see Bennion, Statutory Interpretation, 4th ed, (2002) Section 246) and any interpretation which conflicts with the preamble must be suspect.
- While the opening words of section 4 of the 1976 Constitution, as of section 1 of the 1962 Constitution, ("It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist ..."), may be said to raise a presumption of past enjoyment of the rights thereafter listed, those words do not of themselves raise a conclusive or irrebuttable presumption. They were borrowed directly from the Canadian Bill of Rights 1960 and were not interpreted in Canada as immunising existing laws against challenge on grounds of inconsistency with the Bill of Rights. What was held to preclude challenge to existing laws under the 1962 Constitution was section 3 ("shall not apply"). Thus in de Freitas v Benny  AC 239, 244, the Board held
"Section 3 debars the individual from asserting that anything done to him that is authorised by a law in force immediately before August 31, 1962, abrogates, abridges or infringes any of the rights or freedoms recognised and declared in section 1 or particularised in section 2."
The ruling was repeated in Maharaj v Attorney-General of Trinidad and Tobago (No 2)  AC 385, 395-396:
"In view of the breadth of language used in section 1 to describe the fundamental rights and freedoms, detailed examination of all the laws in force in Trinidad and Tobago at the time the Constitution came into effect (including the common law so far as it had not been superseded by written law) might have revealed provisions which it could plausibly be argued contravened one or other of the rights or freedoms recognised and declared by section 1. Section 3 eliminates the possibility of any argument on these lines."
The ruling was again repeated in Thornhill v Attorney-General of Trinidad and Tobago  AC 61, 72. Reliance has also, in the past, been placed on Director of Public Prosecutions v Nasralla  2 AC 238: we have considered that authority in our opinion in Lambert Watson v The Queen (The Attorney-General intervening)  UKPC 34, paragraphs 59-61, and we would refer to, without repeating, what we have there said.
- In the 1976 Constitution, however, the wording of the savings clause was changed. The wording of section 3 ("Sections 1 and 2 of this Constitution shall not apply ...") was discarded and replaced in section 6 ("Nothing in sections 4 and 5 shall invalidate ..."). The State contends that this change of wording was intended to effect no change of meaning. We find this unconvincing. If a form of words has acquired a clear and settled meaning and the draftsman wishes to reproduce that meaning in a later statute, he uses the same form of words again. It is suggested that the new wording was a response to section 2, the supremacy clause, of the new Constitution, and we accept that it may well have been. But if it had been intended that sections 4 and 5 of the new Constitution should not apply to an existing law, there could have been no reason for not saying so. The Board was referred to contemporary parliamentary material, and we would accept that the provisions we are considering are sufficiently ambiguous to raise a question whether the rule in Pepper v Hart  AC 593 may in principle be applicable. But the material itself is inconclusive. It shows that a parliamentary amendment to reproduce the 1962 wording was defeated. It shows that it was intended to save existing laws on the coming into force of the new Constitution, and this was obviously so; chaos would have ensued had all existing laws ceased to have effect. But the question whether existing laws could be modified if inconsistent with the human rights provisions of the Constitution was not raised or addressed, and this material gives no help in resolving the present problem.
- The Oxford English Dictionary defines the transitive verb "invalidate" as meaning "to render invalid; to destroy the validity or strength of (an argument, contract, etc): to render of no force or effect; esp to deprive of legal efficacy; to make null and void". This definition reflects ordinary usage. Thus section 6(1) provides that nothing in sections 4 and 5 shall render invalid or destroy the validity or strength of or render of no force or effect or deprive of legal efficacy or make null and void any existing law. But these meanings are, in our opinion, directed to total invalidity. This again reflects ordinary usage. If a passport is invalidated it will be null and void for all purposes. If a ticket is invalidated you cannot travel on it. If a credit card is invalidated it cannot be used. Thus whereas section 2 provides that any law other than the Constitution that is inconsistent with it is void to the extent of the inconsistency, section 6 provides that nothing in section 4 and 5 shall render an existing law null and void, devoid of all force and effect, wholly invalid. This does not preclude the application of section 5(1) of the Act, requiring an existing law to be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with sections 4 and 5 of the Constitution where this can be done without annulling the existing law. To read the provisions in this way is to give effect to the principles of construction set out above in a way which the interpretation favoured by the majority does not.
- The authorities show that the power to modify, which is found in many constitutions, has been exercised judiciously and creatively to achieve constitutional conformity where this is possible, while stopping short of impermissible judicial legislation. In Kanda v Government of the Federation of Malaya  AC 322 a conflict was found between an existing law and the terms of the Constitution. The Board gave a restricted meaning to a saving provision, held that in a conflict between existing law and the Constitution the latter should prevail and modified the existing law to the extent necessary to bring it into conformity with the Constitution. In Beckles v Dellamore (1965) 9 WIR 299 it was held by the Court of Appeal of Trinidad and Tobago that existing law must be read subject to modifications necessary to bring it into conformity with the Constitution. "The manifest intention of these provisions", said Phillips JA at page 317, construing the 1962 Constitution,
"is, in my judgment, to make every effort to prevent the implied repeal of existing laws and to secure the continuance of their validity in so far as it is possible to make them conform with the provisions of the Constitution."
The Court of Appeal of the West Indies Associated States held in Charles v Phillips and Sealey (1967) 10 WIR 423 and Herbert v Phillips and Sealey (1967) 10 WIR 435 that the provisions of an existing law were not in conformity with the Constitution of St Christopher, Nevis and Anguilla and that the nonconformity was so great as to preclude any construction which would bring it into conformity. It accordingly held that orders made under the law were void, as it was free to do. A very similar question reached the Board in Attorney-General of St Christopher, Nevis and Anguilla v Reynolds  AC 637, when a different view was taken. Giving the judgment of the Board, Lord Salmon said at page 655:
"If the Court of Appeal were right in concluding that no modification or adaptation or qualification or exception could bring the Order in Council into line with the Constitution, then they would have been plainly right in holding that the Order in Council was nugatory and the Emergency Powers Regulations 1967 invalid. Their Lordships cannot, however, accept that the Constitution would have preserved the life of the Order in Council of 1959 for any period if the Order in Council could not be construed under section 103 of the Constitution so as to bring it into conformity with the Constitution. It is inconceivable that a law which gave absolute power to arrest and detain without reasonable justification would be tolerated by a Constitution such as the present, one of the principal purposes of which is to protect fundamental rights and freedoms. Their Lordships do not consider that there is any difficulty in construing the Order in Council by modification, adaptation, qualification, or exception so as to bring it into conformity with the Constitution. As stated in the judgment of their Lordships' Board in Minister of Home Affairs v Fisher  AC 319, a Constitution should be construed with less rigidity and more generosity than other Acts."
The Board then read the relevant term of the Constitution into the existing law.
- In San José Farmers' Co-operative Society Ltd v Attorney-General (1991) 43 WIR 63 the Court of Appeal of Belize exercised its modifying power to make ambitious amendments needed to bring an existing law into conformity with the Constitution. The Constitution of Belize contained, in section 21, a five-year time-limited savings clause, and the dispute in question arose after expiry of that period. With reference to section 21, Henry P said at page 70:
"The section does not, however, in my view, detract in any way from the power of a court either during the five-year period or afterwards to construe an existing law 'with such modifications, adaptations, qualifications, and exceptions as may be necessary' to bring it into conformity with the Constitution. At the same time the modifications, etc., must be such only as are necessary and a court must be wary of usurping the functions of Parliament by introducing new and possibly controversial legislation in the guise of a modification necessary to bring a particular law into conformity with the Constitution."
Following Reynolds, Liverpool JA was of the same opinion: see pages 78, 86-87. Thus the Court of Appeal modified three sections of the existing law. But one section was held to be incapable of modification and was struck out of the law, a course open to the Court.
- More recently, in Browne v The Queen  1 AC 45 and Director of Public Prosecutions of Jamaica v Mollison  UKPC 6,  2 AC 411 the Board modified existing laws in, respectively, St Christopher and Nevis and Jamaica which provided for an indefinite sentence of detention during the Governor-General's pleasure in order to respect the constitutional imperative that the effective decision on the measure of punishment an individual offender should undergo should, in the absence of a fixed penalty set by legislation and uniformly applied and enforced, be a matter of judicial, and never executive, decision. In Rojas v Berllaque  UKPC 76,  1 WLR 201 a majority of the Board modified a discriminatory existing law governing the composition of juries in Gibraltar in order to give effect to the fair trial right guaranteed by the Constitution.
- Most directly germane to the present appeal is the exercise of the power to modify an existing law providing for imposition of a mandatory death penalty on a defendant convicted of murder (or capital murder) in order to make the law conform to constitutional prohibitions of cruel and unusual treatment or punishments or similarly worded prohibitions. In Reyes v The Queen  2 AC 235, R v Hughes  UKPC 12,  2 AC 259 and Fox v The Queen  UKPC 13,  2 AC 284 modifications were made to the laws of Belize, St Lucia and St Christopher and Nevis respectively which did not outlaw the death penalty but substituted a discretion to impose sentence of death in appropriate cases for a mandatory duty to impose it. A similar course was followed, in our view rightly, by a majority of the Board in Roodal v State of Trinidad and Tobago  UKPC 78,  2 WLR 652. In his judgment in the Court of Appeal in Roodal, de la Bastide CJ said, in a passage quoted by the Board with approval in Mollison, page 427, paragraph 17, which bears repetition:
"Having made this review of the authorities, we are now in a position to assess the purport and effect of section 5(1) of the 1976 Act. The first thing we can say about that section is that though it speaks of existing laws being 'construed', the type of 'construing' which is involved is not the examination of the language of existing laws for the purpose of abstracting from it their true meaning and intent, nor is it attributing to existing laws a meaning which, though not their primary or natural meaning, is one that they are capable of bearing. In fact, the function which the court is mandated to carry out in relation to existing laws under this section, goes far beyond what is normally meant by 'construing'. It may involve the substantial amendment of laws, either by deleting parts of them or making additions to them or substituting new provisions for old. It may extend even to the repeal of some provision in a statute or a rule of common law. Mr Daly's submission that the section should be regarded as conferring very limited powers is, I am afraid, a brave but unavailing attempt to turn the clock back."
The Chief Justice went on to hold that section 5 of the 1976 Act could be used to the same effect in Trinidad and Tobago as it had been in Belize, St Lucia and St Christopher and Nevis, were it not for the effect which he gave to section 6 of the Constitution. On that point a majority of the Board was later to differ from him, and we continue to differ. In our opinion, section 5 of the 1976 Act requires section 4 of the 1925 Act to be modified to bring it into conformity with the Constitution.
- We find nothing strange in a provision which requires a court to construe an existing law with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with a human rights instrument but prohibits it from annulling the law. It is not dissimilar from the approach prescribed by sections 4 and 6 of the New Zealand Bill of Rights Act 1990 and sections 3 and 4 of the United Kingdom Human Rights Act 1998. The initial stage of interpretation is close to what the Court of Justice of the European Communities had in mind in Marleasing SA v La Comercial Internacional de Alimentación SA (Case C – 106/89)  1 ECR I-4135, 4159 para 8, when it said:
"in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter ...."
The result of our construction is, we accept, to require the rectification of some disconformities while leaving others unrectified. Those which cannot be rectified will generally be matters which call for legislative deliberation and on which the court is not well-equipped to intervene; they will not necessarily be the most flagrant or obvious infractions of human rights (compare the observations of Lord Hope of Craighead in Bellinger v Bellinger  UKHL 21,  2 AC 467, 486-487, paragraphs 66-69). But we cannot regard this outcome as less rational, or less likely to have been intended, than a prohibition for an indefinite period of rectification of any disconformities, whether large or small.
- It is common ground between the parties to this appeal that an obligation binding on a state in international law but not forming part of its domestic law cannot override or even influence the construction and application of a clear and unambiguous provision of domestic law. It is also common ground that if a provision of a state's domestic law is ambiguous and permits of two interpretations, one of which will accord with the state's international obligations and the other of which will involve a violation of those obligations, a court will so far as possible adopt that interpretation which will accord with the state's international obligations. We accept both propositions, which are supported by authorities such as Matadeen v Pointu  1 AC 98, 114, Lewis v Attorney-General of Jamaica  2 AC 50, 78 and Reyes v The Queen  2 AC 235, 247. These propositions apply to constitutions as to other domestic law, and apply even if the international obligations were undertaken after the date of the constitution: see Matadeen v Pointu; Thomas v Baptiste  2 AC 1; Lewis v Attorney-General of Jamaica and Reyes v The Queen. Since we consider section 5 of the 1976 Act and sections 2 and 6 of the 1976 Constitution to be ambiguous, as evidenced by the difference of opinion between ourselves and the majority and between the majority and the minority in Roodal, it is in our view relevant to explore the international obligations of Trinidad and Tobago in relation to the issue before the Board. We also think it important to do so, since human rights treaties have a special character, as explained by the Inter-American Court of Human Rights in Advisory Opinion OC-2/82 of 24 September 1982 (Ser. A) No 2 (1982):
"29. The Court must emphasize, however, that modern human rights treaties in general, and the American Convention in particular, are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States. Their object and purpose is the protection of the basic rights of individual human beings irrespective of their nationality, both against the State of their nationality and all other contracting States. In concluding these human rights treaties, the States can be deemed to submit themselves to a legal order within which they, for the common good, assume various obligations, not in relation to other States, but towards all individuals within their jurisdiction. The distinct character of these treaties has been recognized, inter alia, by the European Commission on Human Rights, when it declared
'that the obligations undertaken by the High Contracting Parties in the European Convention are essentially of an objective character, being designed rather to protect the fundamental rights of individual human beings from infringements by any of the High Contracting Parties than to create subjective and reciprocal rights for the High Contracting Parties themselves. (Austria v Italy, Application No 788/60, 4 European Yearbook of Human Rights 116, at 140 (1961).)'"
- For nearly nine years, from 25 October 1953 until 31 August 1962, the European Convention applied to Trinidad and Tobago without any reservation. Article 3 of that Convention provides that no one shall be subjected to inhuman or degrading treatment or punishment. With reference to the death penalty, the European Court of Human Rights has recently reiterated that the Convention is a living instrument which must be interpreted in the light of present day conditions, and has pointed out that the concept of inhuman and degrading treatment and punishment has evolved considerably since the Convention came into force: Öcalan v Turkey (2003) 37 EHRR 238, paras 193-194.
- On becoming independent, Trinidad and Tobago became a member of the United Nations. It was then bound to observe the Universal Declaration of Human Rights, article 5 of which provides that no one shall be subjected to cruel, inhuman or degrading treatment or punishment. On 21 December 1978 the State acceded to the International Covenant for Civil and Political Rights, subject to reservations not relevant for present purposes. Article 7 provides that no one shall be subjected to cruel, inhuman or degrading treatment or punishment. Article 2 provides (in part):
"1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind ...
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognised in the present Covenant."
On 14 November 1980 the State acceded to the Optional Protocol to the ICCPR, recognising the competence of the Human Rights Committee to receive communications from parties claiming to be victims of violations of the Covenant. The State withdrew from the Optional Protocol on 26 May 1998, but re-acceded subject to a reservation seeking to exclude communications from prisoners under sentence of death. This reservation was held to be invalid by the Human Rights Committee on 2 November 1999 (Communication No 845/1999: Kennedy v Trinidad and Tobago, 31/12/99), which went on to hold in a later decision of 26 March 2002 (Communication No 845/1998) that mandatory imposition of the death penalty, particularly when coupled with the murder/felony rule, violated the prisoner's right to life protected by article 6 of the Covenant. No separate decision was made on article 7. The State again withdrew from the Optional Protocol on 27 March 2000 with effect from 27 June 2000, but it remains a party to the Covenant. On 18 October 2000 the Human Rights Committee held (Communication No 806/1998, Thompson v St Vincent and the Grenadines) that the imposition of the mandatory death penalty violated the prisoner's right to life, his complaint under article 7 raising no issue separate from the finding of violation under article 6.
- On 14 March 1967 Trinidad and Tobago became a member of the Organisation of American States and became, as such, bound to uphold the rights in the American Charter and Declaration. Under article XXVI of the Declaration every person accused of an offence has the right not to receive cruel, infamous or unusual punishment. The Declaration was held by the Inter-American Commission on Human Rights in Resolution 23/81 (case 2141, United States, 6 March 1981) to be binding on members of the OAS whether or not they had ratified the American Convention on Human Rights. But Trinidad and Tobago ratified that Convention on 28 May 1991. The Convention provides, in article 2, that
"Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measure as may be necessary to give effect to those rights or freedoms."
The Convention protects the right to life in article 4 and provides in article 5(2) that no one shall be subjected to cruel, inhuman or degrading punishment or treatment. On ratification of the American Convention the State recognised the compulsory jurisdiction of the Inter-American Court of Human Rights but on 26 May 1998 (with effect from 26 May 1999) it denounced the Convention and the jurisdiction of the Court. It remains a member of the OAS. In a series of cases the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights have consistently held that the mandatory death penalty violates the Convention or (as the case may be) the Declaration. Examples are: McKenzie and Others v Jamaica (Report No 41/00, 13 April 2000, paragraph 8a); Baptiste v Grenada (Report No 38/00, 13 April 2000, paragraphs 80-87); Edwards and Others v The Bahamas (Report No 48/01, 4 April 2001, paragraphs 136-154); and Sewell v Jamaica (Report No 76/02, 27 December 2002, paragraphs 91-97). In Hilaire, Constantine and Benjamin and Others v Trinidad and Tobago (21 June 2002, Ser. C No 94 (2002)) the Inter-American Court ruled on petitions by 32 prisoners convicted of murder in Trinidad and Tobago, all of whom complained (among other things) that imposition of the mandatory death penalty violated their rights under the Convention. In paragraphs 103-108 of its decision the Court said:
"103 The Court finds that the Offences Against the Person Act of 1925 of Trinidad and Tobago automatically and generically mandates the application of the death penalty for murder and disregards the fact that murder may have varying degrees of seriousness. Consequently, this Act prevents the judge from considering the basic circumstances in establishing the degree of culpability and individualising the sentence since it compels the indiscriminate imposition of the same punishment for conduct that can be vastly different. In light of Article 4 of the American Convention, this is exceptionally grave, as it puts at risk the most cherished possession, namely, human life, and is arbitrary according to the terms of Article 4(1) of the Convention.
104 The Court finds that the Offences Against the Person Act has two principal aspects: a) in the determination of criminal responsibility, it only authorizes the competent judicial authority to find a person guilty of murder solely based on the categorization of the crime, without taking into account the personal conditions of the defendant or the individual circumstances of the crime; and b) in the determination of punishment, it mechanically and generically imposes the death penalty for all persons found guilty of murder and prevents the modification of the punishment through a process of judicial review.
105 The Court concurs with the view that to consider all persons responsible for murder as deserving of the death penalty, 'treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the death penalty.'
106 In countries where the death penalty still exists, one of the ways in which the deprivation of life can be arbitrary under Article 4(1) of the Convention is when it is used, as is the case in Trinidad and Tobago due to the Offences Against the Person Act, to punish crimes that do not exhibit characteristics of utmost seriousness, in other words, when the application of this punishment is contrary to the provisions of Article 4(2) of the American Convention.
107 It is the view of this Court that although a violation of Article 4(2) of the Convention was not specifically alleged by the Commission in its Applications (supra para 3), but rather only in its final arguments (supra para 90), the Tribunal is not prevented from examining that issue, by virtue of the general principle of law iura novit curia, 'on which international jurisprudence has repeatedly relied and under which a court has the power and the duty to apply the juridical provisions relevant to a proceeding, even when the parties do not expressly invoke them.'
108 In the light of these facts, the Court concludes that because the Offences Against the Person Act submits all persons charged with murder to a judicial process in which the individual circumstances of the accused and the crime are not considered, the aforementioned Act violates the prohibition against the arbitrary deprivation of life, in contravention of Article 4(1) and 4(2) of the Convention."
A footnote to paragraph 103 referred to United States authority holding the mandatory death penalty to be cruel and unusual punishment. The Court went on to hold (paragraph 116) that the mere existence of section 4 of the Offences Against the Person Act 1925 constituted a violation of the Convention. In paragraph 152(c), adopting what we consider to be an incorrect interpretation of section 6 of the 1976 Constitution, the Court concluded:
"c) The Court draws attention to the fact that Section 6 of the Constitution of the Republic of Trinidad and Tobago of 1976 establishes that no law in effect prior to the date the Constitution entered into force may be the object of constitutional challenge under Sections 4 and 5 (supra para 84(f)). The Offences Against the Person Act is incompatible with the American Convention and thus any provision that establishes that Act's immunity from challenge is likewise incompatible, by virtue of the fact that Trinidad and Tobago, as a party to the Convention at the time that the acts took place, cannot invoke provisions of its domestic law as justification for failure to comply with its international obligations."
- It is in our opinion clear that the effect of reversing Roodal is to put the State in breach of its international obligations under the Universal Declaration, the ICCPR, the American Declaration and the American Convention, to all of which the State was party when the appellant committed his crime and to the first three of which it remained a party at the date when he was sentenced. In acknowledging, as it does, that imposition of the mandatory death penalty is cruel and unusual treatment or punishment, the State must indeed be taken to admit these breaches of its international obligations.
- For the foregoing reasons we would modify section 4 of the 1925 Act. The same result could be achieved by giving section 68(2) of the Interpretation Act 1962 its literal meaning: since the death sentence mandated by section 4 of the 1925 Act is a fixed penalty, it would then fall to be treated as a maximum penalty. But it is preferable to amend section 4 since, as enacted, it appears to require that every person convicted of murder must not only be sentenced to death but must also be executed. It seems very unlikely that such was ever the practice in Trinidad and Tobago. It certainly was not the practice in 1925, and has not been the practice at any time since. We accordingly consider it necessary to modify section 4 so as to bring it into conformity with the Constitution. The section should henceforward be construed to read: "Any person convicted of murder may be sentenced to, and may suffer, death".
- There is no substance in the objection that the court has no power under the 1925 Act to impose any sentence other than death and no power to impose a sentence of imprisonment. The effect of the modification is to convert the mandatory death penalty into a discretionary death penalty. In a case where it is judged (subject to any appeal) that the defendant's crime is so heinous as to merit the ultimate penalty, that sentence may be passed. In other cases a less severe form of punishment than death may be imposed. The judge will have no more difficulty deciding what is a less severe form of punishment than death than the President (or the Minister advising him) when acting under section 87(2)(c) of the Constitution; neither of them has any express power to impose a sentence of imprisonment either, yet sentences of life imprisonment are routinely substituted for sentences of death. Under the law of Jamaica there was similarly no express judicial power to impose any sentence other than death on a convicted murderer, but in Pratt v Attorney-General for Jamaica  2 AC 1, the Board ordered that the death sentence imposed on the applicants be commuted to life imprisonment.
- The modification which we favour has the additional advantage of curing a serious constitutional anomaly in the existing arrangements. There is ordinarily no constitutional objection to the setting by Parliament of a fixed penalty for a prescribed criminal offence, provided that is the penalty which is imposed and (save in exceptional cases) enforced. But there is a serious objection to the legislative setting of a fixed penalty, which the judge is obliged to impose, when the passing of sentence by the judge is in practice a prelude to the determination by the executive of what punishment the offender really deserves. Such is the procedure in Trinidad and Tobago, since it has been accepted in practice for very many years that by no means all those who are sentenced to death deserve to die. In practice, therefore, the decision whether an individual defendant should or should not be executed is taken by a Minister designated by the President on the advice of the Prime Minister: Constitution, section 87. The Advisory Committee which considers capital cases comprises the designated Minister, the Attorney General, the Director of Public Prosecutions and not more than four other members appointed by the President after consultation with the Prime Minister and the Leader of the Opposition: section 88. This is plainly not a judicial body, but equally plainly it is carrying out what is in effect a sentencing function. Such an arrangement was condemned in Hinds v The Queen  AC 195, 226-227, in Browne v The Queen  1 AC 45, 49 and in Director of Public Prosecutions of Jamaica v Mollison  2 AC 411. Rejection of such a procedure underpinned the decision of the House of Lords in R (Anderson) v Secretary of State for the Home Department  UKHL 46,  1 AC 837. The high desirability, on constitutional grounds, of entrusting to the judiciary the effective decision (subject always to exercise of the prerogative of mercy) on the measure of punishment which a convicted murderer should undergo does not in our opinion give the appellant an independent ground of appeal, but does underline the need to make the modification which we favour. It cannot be said that the provision made for the Advisory Committee in the Constitution is inconsistent with the modification we favour, since even if the death sentence were discretionary it would still be appropriate for an executive body to consider whether there were exceptional grounds on which mercy should be shown to a condemned defendant.
- For all these reasons we would modify section 4 as indicated above, allow the appeal and remit the case to the High Court in order that a just and appropriate sentence may be passed on the appellant. We would add that we view with dismay the practical consequences of reversing the majority decision in Roodal, not only as it affects the appellant and those who, like him, have been encouraged to look forward to a judicial determination of their sentences but also as it affects those covered by the Board's decision in Khan v The State  UKPC 79,  2 WLR 692, whose future is now thrown into doubt. The result of reversing Roodal is to replace a regime which is just, in accordance with internationally-accepted human rights standards and (as experience in the Eastern Caribbean has shown) workable by one that is unjust, arbitrary and contrary to human rights standards accepted by the State.
Dissenting judgment by Lord Nicholls of Birkenhead
- Lives may depend on the outcome of this appeal and the associated appeals from Barbados and Jamaica: Boyce and Joseph v The Queen and Watson v The Queen. Under the law of Trinidad and Tobago everyone convicted of murder must be sentenced to death. The law of Barbados is the same. The judge has no discretion, whatever the personal conditions of the defendant or however extenuating the circumstances. The law of Jamaica draws a distinction between types of murder, some are classified as capital, others non-capital. Conviction of capital murder and, in some cases, non-capital murder attracts a mandatory sentence of death.
- Years ago no one thought mandatory death sentences were an unusual or inhumane form of punishment. They existed in the United Kingdom until 1965. As recently as 1981 Lord Diplock was able to say there was nothing unusual in a capital sentence being mandatory: Ong Ah Chuan v Public Prosecutor  AC 648, 674.
- Times have changed. Human rights values set higher standards today. The common endeavour, to rid the world of man's inhumanity to man, has not ceased. Conduct, once tolerated, is no longer acceptable. Murder can be committed in all manner of circumstances. In some the death penalty will plainly be excessive and disproportionate. As Lord Lane noted, there is "probably no offence in the criminal calendar that varies so widely both in character and in degree of moral guilt as that which falls within the legal definition of murder": see the report of the Prison Reform Trust (1993), page 21. To condemn every person convicted of murder to death regardless of the circumstances is a form of inhumane punishment. A sentence of death which lacks proportionality lacks humanity.
- The three countries with which these appeals are concerned have human rights values at the very forefront of their constitutions. Among the fundamental human rights expressly enshrined is prohibition of cruel and unusual punishment in section 5 of the Constitution of Trinidad and Tobago, inhuman punishment in section 17 of the Constitution of Jamaica, and inhuman punishment in section 15 of the Constitution of Barbados. Each country has also entered into international commitments of a like nature.
- Despite these constitutional and international guarantees the governments of these countries insist on continuing to inflict on their citizens a form of punishment which, by today's standards, is inhuman. Each government justifies its mandatory sentences of death for murder by pointing to a transitional savings clause in the country's constitution in respect of laws in force when the constitution was adopted. Each government seeks thereby to clothe a form of inhuman punishment with continuing constitutional legitimacy and an appearance of human rights respectability.
- I do not believe the framers of these constitutions ever intended the existing laws savings provisions should operate to deprive the country's citizens of the protection afforded by rising standards set by human rights values. The savings clauses were intended to smooth the transition, not to freeze standards for ever. The constitutions of these countries should be interpreted accordingly, by giving proper effect to their spirit and not being mesmerised by their letter. A literal interpretation of these constitutions means that the law of Jamaica, a country which has taken steps to distinguish between different types of murders, is held to be unconstitutional, whereas the laws of Barbados and of Trinidad and Tobago, where no ameliorating steps have been taken, are held to be constitutional. This is bizarre.
- Self-evidently, an interpretation of the constitutions which produces this outcome is unacceptable. A supreme court of a country which adopts such a literal approach is failing in its responsibilities to the citizens of the country. A constitution should be interpreted as an evolving statement of a country's supreme law.
- This is not to substitute the personal predelictions of individual judges for the chosen language of the constitution. Rather, it is a recognition that the values underlying a constitution should be given due weight when the constitution falls to be interpreted in changed conditions. A supreme court which fails to do this is not fulfilling its proper role as guardian of the constitution. It is abdicating its responsibility to ensure that the people of a country, including those least able to protect themselves, have the full measure of protection against the executive which a constitution exists to provide. Dickson J, delivering the judgment of the Supreme Court of Canada in Hunter v Southam Inc  2 SCR 145, 155, summarised the responsibility of the judiciary:
"The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind."
- For some years now their Lordships' Board, in discharge of its responsibilities as the supreme court of a number of countries, has sought to give effect to the human rights values declared and entrenched in the constitutions of these countries. It has done so by decisions such as Pratt and Morgan v Attorney-General for Jamaica  2 AC 1, concerning time spent on death row, Lewis v Attorney General of Jamaica  2 AC 50, concerning conditions on death row, and Reyes v The Queen  2 AC 235, concerning mandatory sentences of death. By the Constitution (Amendment) Act, 2002 the Constitution of Barbados was amended so as to reverse the effect of all three of these decisions. This was done by enacting that, for the future, the conduct declared to be unconstitutional by these decisions of the Board shall not be held to contravene section 15 of the Constitution.
- All courts of Barbados, including their Lordships' Board when sitting as the supreme court of Barbados, must of course give effect to this change in the Constitution of Barbados. If the requisite legislative support for a change in the constitution is forthcoming, a deliberate departure from fundamental human rights may be made, profoundly regrettable although this may be. That is the prerogative of the legislature.
- If departure from fundamental human rights is desired, that is the way it should be done. The constitution should be amended explicitly. Departure from fundamental rights entrenched in the constitution should not be carried through by misapplication of transitional savings clauses.
- I add these observations because of the exceptional constitutional importance of these appeals.