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Trinidad and Tobago and the Judicial Committee of the Privy Council A case against the JCPCs involvement

in Trinidadian Legal Affairs

By Oneka V !oach"Cam#bell $tudent number% &''''&()&

*lorida A+, -niversity College of La. *all /'&( La. and Politics of the Caribbean Professor Jeffery Bro.n J 0 Candidate 0ecember /'&(



After fifty one years of inde#endence and submission to the Judicial Committee of the Privy Council 1hereinafter the JCPC2 as the court of final resort3 is Trinidad and Tobago e4ui##ed to .ithdra. from the JCPC5 6f Trinidad and Tobago is ready to .ithdra. 7urisdiction from the JCPC but not ready to create a Court of *inal !esort .ithin the !e#ublic is the Caribbean Court of Justice 1hereinafter the CCJ2 a suitable re#lacement for the JCPC5 Trinidad and Tobago as a sovereign nation has de#ended too long on the JCPC As a ne. nation3 submission to the JCPC .as necessary to facilitate the nations gro.th3 and to mentor the inde#endent nation on self governance 8o.ever3 the JCPC is no. far removed from the realities of the #roblems that e9ist in the Caribbean region so should not be making legal decisions that affect the region The CCJ might be a good alternative for the JCPC Because the CCJ is staffed .ith Caribbean 7udges .ho kno. firsthand the legal ills faced by the nations of the Caribbean3 they are better e4ui##ed than the JCPC to deal .ith com#le9 Caribbean legal #roblems ,any Caribbean nations su##ort the move from JCPC to CCJ and some of them have already transferred original and a##ellate 7urisdiction to the CCJ 8o.ever3 there are a fe. legal critics that are .aiting for the CCJ to #rove itself or believe that a se#arate s#eciali:ed court needs to be established to hear death #enalty cases This is because death #enalty cases are high stakes cases since they deal .ith the fundamental right to live Trinidad and Tobagos de#endence on the JCPC remains #roblematic 6n order to gro. as a nation there comes a time .hen Trinidad and Tobago must begin to deal inde#endently .ith its #roblems and not de#end so largely on the o#inions3 a##rovals and 7udgments of the former

colonial masters By removing itself from JCPC and #lacing original and a##ellate 7urisdiction in the CCJ3 Trinidad and Tobago can start to alleviate that #roblem Caribbean 7udges3 .ho are not a #art of the old colonial masters regime3 .ill be better e4ui##ed to rationally and reasonable deal .ith the legal issues facing Trinidad and Tobago Because these 7udges live in the Caribbean region and are e9#eriencing firsthand the #ains of the region3 they have a better gras# of the legal #roblems than the JCPC .ould This .ould mean that they .ould be better e4ui##ed .ith solutions that fit the needs of the region and Trinidad and Tobago ;ith the advent of the CCJ in /''& Barbados3 Beli:e3 and <uyana have re#laced the JCPC .ith the CCJ The aforementioned nations sa. this as an o##ortunity to break the shackles of the #ast3 and to #lace 7urisdiction once held by the JCPC in the hands of a Caribbean Court3 namely the CCJ The CCJ re#resents for many the ideology of true inde#endence and the idea that Caribbean 7udges have .hat it takes to make sound legal decisions3 absent outside assistance *inally3 there .ould be a Caribbean court that .as e4ui##ed to deal .ith Caribbean matters through Caribbean lenses ;hy then has Trinidad and Tobago not submitted to the CCJs a##ellate 7urisdiction5 This #a#er .ill outline the history of JCPC 7urisdiction in Trinidad and Tobago 6t .ill e9#lore the decisions of the JCPC in Trinidad and Tobagos death #enalty cases and attem#t to the 4uestion3 =;hy does Trinidad and Tobago continue to use the JCPC as a court of last resort5> II. The Birth of a Nation 6n her s#eech to the #arliament of Trinidad and Tobago on A#ril /)th3 /'&/ the 8onorable ?amla Persad"Bissessar3 $C3 ,P3 Prime ,inister of the !e#ublic of Trinidad and Tobago

referred to Trinidads inde#endence on August (&st3 &@A/ as an action of =off the shackles of colonialism and> taking =its rightful #lace among the community of inde#endent nations of the .orld >& This statement re#resents a truth that is evident in the develo#ment of a nation that not only has develo#ed a com#le9 frame.ork of government3 banking3 education and legal infrastructure3 but has #roven itself as one of the economic leaders of the Caribbean region Trinidad and Tobagos government3 modeled after the ;estmenisterian style of #arliamentary democracy has ensured through democracy and #ro#er allocation of the nations resources that the nation continues to gro. by lea#s and bounds as a stable3 inde#endent nation3 deserving of its o.n rights of sovereignty in international circles Prime ,inister Persad"Bissessar also #ointed out the fact that even though our forefathers understood the need for inde#endence they also .isely kne. that as a ne.3 develo#ing nation3 Trinidad and Tobago .ould be foolish not to submit itself in some .ay to the mentorshi# of a committee such as the JCPC / ,any of our Caribbean counter#arts had done the same and this had hel#ed them in a time .hen 7uris#rudence .as ne.3 and the #ains of a ne. nation .ere evident Because the legal infrastructure had not yet been carved in stone3 Trinidad and Tobagos continued submission to the JCPC as a court of last resort .as necessary to allo. the ne. nation the time to gro. the muscles necessary to de#end on its o.n legal system .ithout Buro#ean assistance

Prime ,inister ?amla Persad" Bissessar3 $tatement to the Parliament by the 8onourable ?amla Persad"Bissessar3 $C3 ,P Prime ,inister of the !e#ublic of Trinidad and Tobago 1A#ril /)3 /'&/2 3 available at htt#%CC... tt#arliament orgCabout #h#5midD(A+idDmrEBEBEF
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Judicial Committee Act of 18333 and the Creation of the JCPC The Judicial Committee Act of &F(( states in To#ic (% All appeals from sentence of any Jud e! etc. to "e referred "y #is $a%esty to the Committee! to report thereon. And be it further enacted3 that all a##eals or com#laints in the nature of a##eals .hatever3 .hich3 either by virtue of this Act3 or of any la.3 statute3 or custom3 may be brought before 8is ,a7esty or 8is ,a7esty in Council from or in res#ect of the determination3 sentence3 rule3 or order of any Court3 Judge3 or 7udicial officer3 and all such a##eals as are no. #ending and unheard3 shall from and after the #assing of this Act be referred by 8is ,a7esty to the said Judicial Committee of the Privy Council3 and that such a##eals3 causes3 and matters shall be heard by the said Judicial Committee3 and a re#ort or recommendation thereon shall be made to 8is ,a7esty in Council for 8is decision thereon as heretofore3 in the same manner and form as has been heretofore the custom .ith res#ect to matters referred by 8is ,a7esty to the .hole of 8is JCPC or a committee thereof 1the nature of such re#ort or recommendation being al.ays stated in o#en court2

Trinidad and Tobago is a #ast British colony This #rovision gives 7urisdiction to the JCPC to hear causes arising from current and #ast colonies 6t is the foundation of the JCPC as it is kno.n today 6n the October &&3 /'&( Annual Caroline ;eatherill ,emorial Lecture3 Lord 0avid Geuberger gave a brief history of ho. the JCPC came into being 6n this address3 Lord Geuberger reminded the attendees at the 6sle of ,an that the JCPC dates back to the time of the Gorman ?ings H 6t .as a tool by .hich the monarch governed Bngland under the #hiloso#hy that =the ?ing is the fountain of all 7ustice throughout his dominions and e9ercises 7urisdiction in his

Judicial Committee Act3 &F((1Bng 2

Lord 0avid Geuberger3 The Annual Caroline ;eatherill ,emorial Lecture3 The Judicial Committee of the Privy Council in the /&st Century 1October &&3 /'&(23 available at htt#%CC... su#remecourt gov ukCdocsCs#eech"&(&'&& #df

Council3 .hich acts in an advisory ca#acity to the Cro.n> ) The Plantation Committee 1PC2 .as formed in &AF& to hear #etitions to the ?ing from disgruntled colonists .ho .ere not ha##y .ith the decisions handed do.n on the local level 1in the colonies2 A ;ith the #assage of time and the increased numbers of #etitions from the colonies3 the Judicial Committee Act of &F((E .as #assed Because of <reat Britains vast colonial em#ire3 the JCPC became a necessary body to manage Britains legal affairs in the colonies This included a##eals that .ould have historically come before 8is ,a7esty F As the colonies gained inde#endence3 the JCPC retained 7urisdiction over these common.ealths as a court of last resort According to Lord Geuberger3 the JCPCs current #rimary function is to hear a##eals from the colonies and former colonies of Britain @ 6n most cases3 o#inions from the JCPC are merely re#orts and recommendations3 leaving it in the hands of the state from .hich the a##eal originated to #ut it into effect or not 8o.ever3 in countries that have chosen to retain the JCPC as the highest a##eals court3 JCPC decisions are formal final orders The latter is the case in Trinidad and Tobago3 even after inde#endence

Id at &' Id at &'

Judicial Committee Act3 &F((1Bng 23 available at htt#%CC... legislation gov ukCuk#gaC;illHC(" HCH&Ccontents
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$ee Geuberger3 su#ra note H3 at && $ee Geuberger3 su#ra note H3 at /E


6n British Coal Corporation v. King&'3 Lord $ankey3 in delivering the o#inion3 said =it .as no #art of the #olicy of 8is ,a7estyIs <overnment in <reat Britain that 4uestions affecting 7udicial a##eals should be delivered other.ise than in accordance .ith the .ishes of the #art of the Bm#ire #rimarily affected> && Therefore3 every effort is made to make decisions not to overturn the local la. of the 7urisdiction from .hich the a##eal originated The JCPC has found its niche in inter#reting .hether the decision .as fair under the states e9isting la.3 not ruling on the legality of the s#ecific rule of la. 6n essence3 the JCPC esche.s deciding .hether a #articular la. should e9ist or not ,ost of their o#inions focus on .hether the la. .as a##lied uniformly across cases3 or .hether the a##ellant .as un7ustly affected by the a##lication of the states la. in a .ay not intended by the la.makers Trinidadian &ie's on the ()ymoron of Independence 'hile *u"mitted to JCPC Chief 7ustice of Trinidad and Tobago3 ,r 6vor Archie3 has been noted in /'&& to have said that Caribbean a##eals are being treated .ith less im#ortance by the JCPC 8e also said that it seems that Trinidad and Tobago is .aiting the =final humiliation of being asked to leave> &/ The 4uestions that .e must #onder are sim#le ones 8as the nation of Trinidad and Tobago not gro.n out of infancy in the last fifty one years to render its need for the continued 7urisdictionCmentoring of the JCPC of null effect5 Also3 if there is no longer a need for the


British Coal Cor#oration v ?ing J&@()K A C )'' 1P C &@()21a##eal taken from Lue 2 Id at &&


O.en Bo.cott + ,aya ;olfe !obinson3 ;est 6ndian 0eath !o. Prisoners to Be 0efended By British La.yers3 T8B <-A!06AG 3 June &/3 /'&&3 available at htt#%CC... theguardian comC.orldC/'&&C7unC&/Cdeath"ro."#risoners"caribbean"#rivy"council 1 accessed 0ecember (3 /'&(2

JCPCs intervention in Caribbean affairs3 is there a need for an a##eals court higher than the nations court3 and if so is the CCJ e4ui##ed to take the JCPCs #lace5 Prime ,inister Persad"Bissessar e9#ressed in her s#eech to the #arliament of Trinidad and Tobago on A#ril /)th that the eyes of the Trinidad and Tobago government is not blind to the fact that other Caribbean states such as Barbados3 Beli:e3 and <uyana have re#laced the JCPC .ith the CCJ &( 8o.ever3 she also #ointed out the fact that =Jamaica3 Bahamas3 0ominica and ,auritius still maintain the JCPC as a final court of a##eal >&H The government of Trinidad and Tobago felt the need to allo. the CCJ time to gro. since its ince#tion in /''& &) Just as Trinidad and Tobago has done .hen it first gained inde#endence3 it .anted to ensure that the CCJ had been given time to =gro. teeth and muscles> before trusting the CCJ .ith such a huge mandate as had been that of the JCPC 6n closing her s#eech to #arliament3 Prime ,inister Persad"Bissessar e9#ressed that legislation .as in the .orks to transfer the 7urisdiction to hear criminal a##eals to the CCJ .hile civil a##eals .ill stay .ith JCPC 6n a ne.s#a#er article dated A#ril /Eth3 /'&/3 t.o days after the #rime ministers #roclamation3 *ormer Chief Justice of the CCJ3 ,ichael de la Bastide3 further clarified the #rime ministers statement by e9#laining that even though most criminal cases .ere being transferred to the 7urisdiction of the CCJ3 hangingsCca#ital #unishment a##eals .ould stay under the 7urisdiction of the JCPC &A

$ee Persad" Bissessar3 supra note & Id Id



<eisha ?o.lessar3 B9"CJ% 8anging A##eals $tay .ith Privy Council3 /'&/ T!6G60A0 + TOBA<O <-A!06AG 3 A#r /E3 /'&/3 available at htt#%CC... guardian co ttCne.sC/'&/"'H"/ACe9" c7"hanging"a##eals"stay"#rivy"council 1accessed on October &/3 /'&(2

These moves by the Trinidad government to abolish a##eals to the JCPC and to move the 7urisdiction to hear cases closer to home is a reflection of the intent of most Caribbean states to gain an identity far removed from their colonial masters and to centrali:e Caribbean decisions in Caribbean Courts The !evised Treaty of Chaguaramus&E3 .hich .as the birthing stone for the CCJ3 aims to focus the Caribbean states on a collaborative effort to sustain develo#ment in the region Because death #enalty cases and civil cases are still left in the hands of the JCPC3 Trinidad and Tobago is still not at the #lace of full inde#endence that .as dreamed of .ith the #roclamation of inde#endence in &@A/3 some fifty one years ago JCPC involvement in Trinidad and Tobagos legal #rocesses throughout the years3 .hile not abolishing the death #enalty3 has led to many delays in e9ecutions These delays have led to #ersons sentenced to hang having their sentences commuted to life sentences based on the argument that hanging after such a delay is inhumane JCPC +ie's on the ()ymoron of ,emandin Continued JCPC assistance in -ree *tates One cannot hel# but to .onder .hat the Lords of the JCPC really think about Trinidad and Tobagos continued reliance on the JCPC after fifty one years of inde#endence British

ta9#ayers carry the heavy burden of kee#ing the JCPC viable This has led to many British 7udges s#eaking out and 4uestioning the necessity of the Caribbeans continued reliance on the JCPC &F 6t is true3 based on Prime ,inister Persad"Bissessars s#eech in /'&/ on the occasion of Trinidad and Tobagos )'th Anniversary of 6nde#endence that efforts are being made to .ean from the bosom of the former colonial ruler But from a birds eye vie.3 is the #ro#osed !evised Treaty of Chaguaramus3 July H3 &@E(3 CA!6CO,3 available at htt#%CC... caricom orgC7s#CcommunityCrevisedMtreaty"te9t #df


$ee Bo.cott3 supra note &/


transfer of the 7urisdiction to hear all criminal a##eal cases .ith the e9ce#tion of death #enalty cases to the CCJ .hile retaining civil and death #enalty cases in the JCPC a 7uvenile ste# or does it still fall in the #ervue of the toddler stage of develo#ment5 Are .e to believe that the =Lords of London> in their infinite .isdom are in touch .ith the realities of the economic3 social3 legal and cultural nuances of the Caribbean region after fifty or so odd years of decoloni:ation5 6s it that Caribbean leaders cannot trust Caribbean 7udges to understand and to react to Caribbean legal issues .ith fairness3 7ustice andCor an understanding of the la.5 Cant the 7udges entrusted .ith the enforcement of local la.s duly discern the intent of their forefathers using Caribbean lenses5 ;hose reality is the runa.ay crime rate in the region3 the lack of economic o##ortunities for the youth3 and the social ills of elitism on the faces of the =haves> in Caribbean society5 Arent la.s .ritten as a reflection of the social #roblems and ty#es of behaviors they aim to deter based on Caribbean e9#eriences in the Caribbean region5 Just as many Caribbean $tates have e9#ressed frustration and resentment for the continued 7urisdiction of the JCPC over a##eals from the region3 it is my vie. and the vie. of like minds that the JCPC is e9#ressing its discontent by .ay of its decisions on death #enalty a##eals being brought for.ard by Trinidadian nationals and others in the Caribbean region Like a mother .hose child has reached the age of maturity but still refuses to leave the comfort of the nest3 the JCPC is sending a clear message to those .ho have ears to hear *or one3 the #rocess of bringing an a##eal to the JCPC is3 one might say #ur#osefully3 cumbersome and e9#ensive Also3 the ma7ority of JCPC a##eals u#hold the decisions of the court *inally3 the JCPC is clear in its intent to make decisions consistent .ith the e9isting la.s and not to divert or suggest diversion from them

Based on these actions3 it is my o#inion that the JCPC is sending a message to the Caribbean that says it is time for them to gro. u# and deal .ith their o.n affairs By making the #rocess cumbersome and e9#ensive3 and not overruling most of the local decisions3 the JCPC is e9#ressing their need to .ithdra. from the Caribbean decision making #rocess The Constitution of Trinidad and To"a o The Constitution of the !e#ublic of Trinidad and Tobago Act &@EA on /@ ,arch &@EA3 $ections /3 H3 ) and A &@ The Amended Constitution The Constitution Amendment Ca#ital Offenses Act of /'&&/' created a mandatory death #enalty for #ersons convicted of ,urder & The Act in section AA states that =$ub7ect to this Part3 a #erson convicted of murder shall suffer death >/& 6t lays out the different circumstances under .hich a charge of ,urder & is a##ro#riate and distinguishes them from other ty#es of homicide A charge of ,urder & is reserved for the murder of certain state officials3 =murder that is es#ecially heinous3 atrocious or cruel3 manifesting e9ce#tional de#ravity> //3 and intentional murder due to a #ersons race3 religion3 nationality or country of origin /( III. ,eath Penalty Cases .eaffirmin /ocal /a' "y the JCPC Constitution of the !e#ublic of Trinidad and Tobago3 Act H of &@EA3 available at% htt#%CC... ref.orld orgCdocidCHeAA((bH/ html Jaccessed October @3 /'&(K

The Constitution Amendment Ca#ital Offenses Act 1/'&&21Trin + Tobago23 available at htt#%CC... tt#arliament orgClegislationsCb/'&&h'/ #df
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Id at / Id at ("H Id at H



A close study of the cases a##ealed to the JCPC from the Caribbean region .ill reveal a trend of noninterference in the 7udicial affairs of sovereign states The JCPC has for numerous years modeled3 and advised and led along the .ay Go. is the time for Caribbean nations to =break free> and to deal .ith their o.n issues 6t has al.ays been the #ractice of the JCPC not to interfere .ith the legality of local la.s As stated earlier3 from as early as the British Coal243 the JCPC has stuck to ans.ering a##eals based on misa##lication of already e9istent la.s in the region3 and staying clear of the 4uestion of .hether or not the la. should e9ist at all A. Pratt +. The Att0y 1en. of Jamaica 6n this &@@( case Pratt v. the Atty Gen. of Jamai a/)3 Pratt and ,organ had been incarcerated for murder &A years before the a##eal .as heard by the JCPC They had been sentenced to hang in &@E@ yet had s#ent the last &H years on death ro. They had even been transferred to the gallo.s three times .ith a date to be hung having been set and the death sentence read to them 0es#ite this3 the a##ellants had not been hung but had been left to endure the #sychological trauma of uncertainty of .hen they .ould be #ut to death3 cou#led .ith indefinite incarceration 6n delivering the o#inion3 Lord <riffiths of the JCPC #ointed out that delays of such magnitude .ere unheard of in the -nited ?ingdom /A On average most death #enalties .ere carried out .ithin three to si9 .eeks3 de#endent on .hether or not there had been an a##eal * a delay in e9ecution of t.o years3 in &@HE3 ,r ;inston Churchill .as noted to have

British Coal! A C )''

Pratt v Atty <en of Jamaica J&@@HK3 / A C &3 available at htt#%CC.ebarchive nationalarchives gov ukC/'&'&&'(&H'//HChtt#%CC... #rivy" council org ukCout#utCPage&E& as#
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Id at /

said N#eo#le ought not to be brought u# to e9ecution3 or believe that they are to be e9ecuted3 time after time .hether innocent or guilty3 ho.ever it may be3 .hatever their crime That is a .rong thing> /E The Lords also noted in this o#inion that3 =There is an instinctive revulsion against the #ros#ect of hanging a man after he has been held under sentence of death for many years >/F A distinction .as also made bet.een delays occasioned by the condemned o.n actions versus the actions of the state 6f the condemned causes his o.n delay due to a##eals3 etc then it cant be seen as inhumane 8o.ever3 hangings carried out by the state after long delays caused by the state are seen as inhumane *inally3 it .as the vie. of the Lords in Pratt that if a state chose to retain the death #enalty they should also take the res#onsibility of ensuring that the sentence is carried out .ithin a reasonable time /@ A balance should be sought bet.een time for the o##ortunity of the condemned to a##eal and the state not acting tortuously by holding the condemned for years after the death #enalty has been read ;hile not ruling against Jamaicas 0eath Penalty La.3 the Lords ruling can be inter#reted as saying if a #erson sentenced to death has not been hung after five years3 their sentence should be commuted to life im#risonment or something else close to such to be determined by the local state in a##lication (' 8ere the JCPC is sending the message that it .ill not overturn Caribbean la.s3 even though it recommends s#eedier e9ecutions or stay of e9ecution after a certain number of delayed years

Id at ( Id at &@ Id at /( Id at /A




B. $atthe' + Trinidad and To"a o31 Charles ,atthe. .as convicted of the murder of Louis <ittens in 0ecember &@@@ 8is a##eal .as dismissed by the Trinidad and Tobago Court of A##eals in 0ecember /''' ,atthe. a##ealed his mandatory sentence of death on the grounds that it .as unconstitutional 8e argued that it violated sections /3 H and ) of the Trinidad and Tobago constitution $ection / of the Constitution is the su#remacy clause 6t says that the Constitution is to be the su#reme la. of Trinidad and Tobago and #rovides that any la. inconsistent .ith the Constitution shall be =void to the e9tent of the inconsistency>(/ $ection H recogni:es% 1a2 the right of the individual to life3 liberty3 security of the #erson and en7oyment of #ro#erty and the right not to be de#rived thereof e9ce#t by due #rocess of la.O $ection ) states% 1&2 B9ce#t as is other.ise e9#ressly #rovided in this Cha#ter and in section )H3 no la. may abrogate3 abridge or infringe or authorise the abrogation3 abridgment or infringement of any of the rights and freedoms hereinbefore recognised and declared 1/2 ;ithout #re7udice to subsection 1& 23 but sub7ect to this Cha#ter and to section )H3 Parliament may not " P 1b2 6m#ose or authorise the im#osition of cruel and unusual treatment or

,atthe. v Trinidad and Tobago J/''HK3 & AC H((3 available at htt#%CC.ebarchive nationalarchives gov ukC/'&'&&'(&H'//HChtt#%CC... #rivy" council org ukCout#utCPageHE/ as#
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Id at A

Constitution of the "epu#li of $rinidad and $o#ago3 Act H of &@EA3 available at htt#%CC... ref.orld orgCdocidCHeAA((bH/ html Jaccessed October @3 /'&(K




6n e9amining this case3 the JCPC recogni:ed that the mandatory death sentence .as cruel and inhumane #unishment under section H and ) 8o.ever3 it .as saved by section A of the Constitution $ection A1&2 #rovided that nothing in section H or ) could invalidate an e9isting la. () The Offences Against the Person Act .as #assed in &@/) .hile the Constitution of the !e#ublic of Trinidad and Tobago Act .as #assed in &@EA Therefore3 the Offences Against the Person Act #receded the latter and .ould be considered an e9isting la. under the meaning of section A1&2 of the Constitutional Act of &@EA 6n analy:ing the o#inion of the JCPC in %atthe&3 it is my o#inion that this ty#e of decision sho.s the JCPCs reluctance to overturn Caribbean la.s Bven if la.s are found to contradict each other3 and to contradict international obligations made by the sovereign state3 the JCPC looks for .ays .ithin the e9isting body of la. to save and u#hold the la. 6f the la. is saved by any other clause or la. on the books of the sovereign nation3 the JCPC errs on the side of caution 6t is not .illing to make ma7or changes to e9isting la.s but gently suggests that the sovereign state take a second look at the #roblematic area on its o.n This says that the JCPC does not .ant to be involved in the #rocess of la.making in the Caribbean 6t is almost as though they are saying to the Caribbean that these are your la.s3 .e can suggest .ays to strengthen them3 but .e .ill not change them for you That is your 7ob C. Ben%amin +. Trinidad and To"a o32

Id at &F Id at &F"&@


Ben7amin v Trinidad and Tobago J/'&/K3 -?PC F3 available at htt#%CC... 7c#c gov ukCdecided"casesCdocsCJCPCM/''@M'&&(MJudgment #df


0eenish Ben7amin and 0eochan <anga .ere convicted in 0ecember /''A3 and sentenced to hang for the murder of $unil <anga 6n /''F3 their a##eals against their convictions and mandatory death sentences .ere dismissed by the Trinidad and Tobago Court of A##eals They a##ealed to the JCPC on nine issues3 one of .hich is relevant to this #a#er The A##ellants Ben7amin and <anga claimed that the mandatory death sentence .hich they had received .as in violation of section ) of the Constitution of Trinidad and Tobago because it .as cruel and unusual #unishment (E Their claim .as based on the fact that they .ere both found to be mentally retarded Both Ben7amin and <anga had been evaluated by 0r Latham3 a recogni:ed consultant in forensic #sychiatry 0r Lathams re#ort identified Ben7amin as having mental retardation and cognitive im#airment 8e has also al.ays needed significant hel# .ith all other chores e9ce#t for the basics of life <anga .as also found to be suffering .ith mental retardation 0r Lathams findings .ere also confirmed by another #athologist3 0r <reen The JCPC #assed on the 4uestion of .hether the #ractice of sentencing mentally retarded individuals to death constituted cruel and unusual #unishment as described in section ) of Trinidad and Tobagos constitution 6n its o#inion3 the JCPC #ointed to the fact that the Trinidad and Tobago Court of A##eals had not had the o##ortunity to rule on this issue (F The JCPC also highlighted the fact that not only had Trinidad and Tobago never dealt .ith the 4uestion on the a##ellate level3 but to date no other a##ellate 7urisdiction in the Caribbean region had ruled on the constitutionality of death sentences for the mentally retarded (@ The Lords reasoned that it Constitution of the !e#ublic of Trinidad and Tobago3 Act H of &@EA3 available at htt#%CC... ref.orld orgCdocidCHeAA((bH/ html 1accessed October @3 /'&(2
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Ben'amin3 -?PC F at &@ Id at &@



.ould be un7ust for them to touch the to#ic since the courts in the Caribbean region hadnt had the o##ortunity to formulate their o.n a##roach to the to#ic 6t is my o#inion that the JCPC3 here again3 is great deference to the Caribbean region and its courts The message it sends in this case is that the JCPC .ill not tell the Caribbean region ho. to govern itself 6t is also saying that the Caribbean region is in itself better e4ui##ed to this 4uestion than the JCPC and should be allo.ed to develo# this rule of la. on its o.n .ithout #remature outside interference 8ere again .e see the underlying message that the Caribbean is better e4ui##ed to deal .ith Caribbean issues I&. Best Alternati+e to the JCPC 3 CCJ A The Caribbean Court of Justice 1CCJ2 The CCJ o#erates as t.o courts combined H' 6t is an Original Jurisdiction Court dealing .ith the right of CA!6CO, members to move freely and do business bet.een CA!6CO, states as established by the !evised Treaty of Chaguaramus H& 6t is also an A##ellate Jurisdiction Court for CA!6CO, member states .ho have chosen to submit to it for that reason H/ 6n order to re#lace the JCPC .ith the CCJ3 the JCPC must first be removed legally To remove the JCPC as the court of last resort in Trinidad and Tobago a three 4uarters ma7ority vote from the 8ouse of !e#resentatives and a t.o thirds ma7ority vote from the $enate is necessary H(

htt#%CC... caribbeancourtof7ustice orgCabout"the"cc7Cfa4s Id. Id



,atthe. <ayle3 Cari##ean Court of Justi e or the Judi ial Committee of the Privy Coun il( A dis ussion on the final appellate Court for the Common&ealth Cari##ean ?6G<$ $T-0BGT LA; .4&I45 &(/6$4 III I**64 1 3 /'&&3 &/A $ee also 0 Pollard3 $he Cari##ean Court of Justi e) Closing the Cir le of Independen e3 T8B CA!6BBBAG LA; P-BL6$86G< CO,PAGQ 3


As of /''@3 A'R of a##eals to the JCPC came from Trinidad and Tobago and Jamaica combined HH 6n order to effectively transfer such a heavy caseload to the CCJ3 ade4uate funding3 staffing3 and #re#aration is a must Bstablished in /''&H)3 the CCJ heard its first case in August of /'') Although that case .as unrelated to the death #enalty3 the hearing of that case re#resented a shift for the Caribbean region ,any critics of the JCPC say that the CCJ .as established due to disenchantment .ith the JCPCs involvement in Caribbean legal issues One such controversial case3 as mentioned above .as Pratt.4* The JCPCs decision in Pratt that #ersons .ho a.aited hanging more than five years after being sentenced should have their sentences commuted to life sentences angered the Caribbean community This decision came even in light of the fact that the ma7ority of the #o#ulation in the Caribbean region favored the death #enalty According to 0avid !o.e3 ad7unct #rofessor of la. at the -niversity of ,iami $chool of La.3 many Caribbean critic see the JCPC as =a court that actively frustrates the e9ecution of the death #enalty3 .hich3 at least nominally3 remains on the books of most Caribbean territories3 des#ite very fe. hangings in recent decadesP>HE ,r !o.e further argued that these same critics actually vie. the invention of the CCJ as an attem#t /''H ?ingston at &(AO &)H

Taken from JCPC 0ecided A##eals /''H"/''@

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45 46

Pratt3 / A C &

Peter !ichards3 $rinidad Pressured to +rop %andatory ,anging3 CA!6BBBAG (A'3 ,ar &)3 /'&(3 available at htt#%CC... caribbean(A' comCinde9 #h#Cne.sCtrinidadMtobagoMne.sCAE((HE htmlSa9::/m9hm 0v&L


to by#ass the JCPC in order to re"introduce hangings HF Go one has been hung in Trinidad and Tobago since &@@@3 des#ite ca#ital offence convictions This is blamed largely on JCPC involvement and delays A /'&& study conducted in Trinidad and Tobago found that F@R of Trinidad and Tobago su##orts the death #enalty H@ 8o.ever3 a ma7ority of those .ho su##ort the death #enalty also believe that it should not be mandatory but that 7udges should have some discretion as to .hen it is a##lied )' 6n January /'&& it .as re#orted that (3(() murders .ere committed in Trinidad and Tobago from /''/ to /'&'3 and H/ inmates sat on death ro. )& The JCPC seems to be insensitive to the legal needs of the Caribbean3 as seen by the #rior mentioned study The JCPC has also been a heightening disinterest in the continued hearing of Caribbean a##eals A move to the CCJ .ould #otentially solve these #roblems The CCJ is located in the Caribbean3 namely in Trinidad and Tobago )/ By moving to the CCJ3 this .ill alleviate the #rocedural discomforts of travel to and from Bngland as .ell as largely decrease the #rice of litigation for those .anting to a##eal their convictions Because the Court is located in Trinidad and Tobago it should also have the effect of reducing delays in .hen a##eals are heard The #roblem of delayed hangings3 such as in Pratt3 can be eliminated or reduced significantly This could be a double edged s.ord though *or inmates it could mean

Id Id Id.



Peter !ichards3 $rinidad Aims to Bypass Privy Coun il on +eath Penalty3 6nter Press $ervice Ge.s Agency3 Jan /'3 /'&&3 available at htt#%CC... i#sne.s netC/'&&C'&Ctrinidad"aims"to" by#ass"#rivy"council"on"death"#enalty
51 52

The CCJ is located at &(H 8enry $treet3 Port of $#ain3 Trinidad and Tobago

the #ossibility of an a##eal .here it .as not #ossible before due to lack of funds to #ay for the e9#ensive #rocess of a##ealing to Bngland 8o.ever3 it could also mean that .ith the delay time being reduced3 less sentences being commuted to life sentences and more #eo#le being hung The CCJ is funded by the CCJ Trust *und )( This uni4ue funding ensures that no one country has #olitical control over the 7udges or its #rocesses This method of funding is also significant because unlike the JCPC 1.hich is funded by British ta9#ayers2 it is not funded by the ta9#ayers in Trinidad and Tobago This ty#e of funding structure also leads to stability .hich Trinidad and Tobago seeks in an a##ellate court The CCJ has been in e9istence for more than a decade in the Caribbean region)H and heard over EH cases in its a##ellate division )) Based on the fact that it has been able to sustain itself this long3 6 believe that Trinidad and Tobago .ill be making a #ositive ste# if a##ellate 7urisdiction is transferred from the JCPC to the CCJ Because the CCJ already has original 7urisdiction under the !evised Treaty of Chaguaramus for issues falling under that bracket3 the addition of the cases that regularly go to the JCPC .ill hel# to strengthen the CA!6CO, bond bet.een Trinidad and Tobago and the other states in the region 6t .ill also solve the #roblem of #utting Trinidadian #roblems in the hand of the JCPC for solutions Transferal of a##ellate 7urisdiction to the CCJ .ill mean Caribbean 7udges hearing and delivering o#inions on Trinidadian legal issues This is the ideal solution for the current #roblem facing Trinidad and Tobago today

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Agreement establishing the Caribbean Court of Justice3 *eb &H3 /''&3 available at htt#%CC... caribbeancourtof7ustice orgCabout"the"cc7Ccc7"conce#t"to"reality

htt#%CC... caribbeancourtof7ustice orgC7udgments"#roceedingsCa##ellate"7urisdiction" 7udgments