Trinidad and Tobago is one of only a very few countries worldwide which still retains the mandatory death penalty for persons convicted of murder. The mandatory death penalty is provided for in Section 4 of the Offences Against the Person Act 1925 which states that ‘Every person convicted of murder shall suffer death.’ On independence in 1962, the mandatory death penalty for murder remained law.
Although the Privy Council has ruled that the mandatory death penalty for murder is unconstitutional (see more here), in Trinidad and Tobago the penalty is protected by a ‘savings clause’ at section 6 of the Constitution which states that: ‘Nothing in sections 4 or 5 [Recognition and Protection of Fundamental Human Rights and Freedoms] shall invalidate an existing law.’
‘Savings clauses’ were inserted into the constitutions of many former British colonies when they became independent; they were intended to provide continuity and reduce uncertainty in the transitionary period (see ‘Savings Clauses‘ section).
Therefore, although in 2003 the Privy Council held that the mandatory death sentence for murder infringed the constitutional right not to be subjected to cruel and unusual punishment, the ‘savings clause’ meant that the mandatory sentence could only be abolished by enacting a law.
In response to rulings such as these, Trinidad and Tobago have withdrawn from various conventions. In 1998, the government withdrew from the American Convention on Human Rights and in May of 1998 the country withdrew from the First Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR). The government then re-acceded to the ICCPR with a reservation on the right of individuals to petition the Human Rights Committee. Following a declaration of the Human Rights Committee that this was contrary to the object and purpose of the First Optional Protocol, Trinidad and Tobago again denounced the measure.
Debate on the question of the death penalty is a prominent issue in Trinidad and Tobago. Various Commissions of Inquiry have submitted recommendations for reform. In 1980, the majority of the members of the Abdulah Commission concluded that the death penalty should be retained. However, the Commission also recommended a discretionary system which differentiated between murders, and recommended that the death penalty should be restricted to murders ‘where the act is particularly heinous and/or where the killing takes place with premeditation and malice aforethought.’ In addition, a minority recommended that the death penalty should be abolished for a trial period of five years.
In 1990, the Prescott Commission concluded that the death penalty for murder and treason should be retained, but that killings involving self-defence, insanity or provocation should not attract the death penalty. The Commission also recommended that prisoners who had been under sentence of death for 10 years should have their sentence commuted to life imprisonment. However, for prisoners whose appeals had been exhausted, the Commission recommended that executions should be resumed (subsequent review of the evidence surveyed by the Prescott Commission led two independent experts to claim that the conclusions were based on seriously flawed arguments and interpretation of data, see Amnesty International’s report ‘Trying to execute regardless’ (1994) for a fuller overview of these Commissions’ findings).
Repeated attempts by successive governments have shown that Trinidad and Tobago’s politicians remain seemingly committed to resuming hanging.
The Offences Against the Person (Amendment) Act 2000 would have differentiated murders into capital and non-capital categories, however this Act was not commenced. In 2011, the government looked to pass the Constitution (Amendment) (Capital Offences) Bill which would also have categorised murders; however the Bill was defeated. In January 2015, the Attorney General informed opposition leader Dr Keith Rowley (now Prime Minister) that the government intended to reintroduce the Constitutional (Amendment) (Capital Offences) Bill. While no movement has been made on this so far, the current Attorney General Faris Al-Rawi has repeatedly called for the resumption of hanging, and has sought to fast-track cases so they would be eligible for execution within the five year window imposed by the Privy Council case of Pratt and Morgan ( 4 All ER 769) (see ‘Delays and Death Row Phenomenon‘ section for more on this).