Before the Honourable Mr Justice Myers (Acting) Dr Charles Seepersad and Mr Mark Seepersad instructed by Mr Gerald Ramdeen for the Applicant

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1 TRINIDAD TOBAGO IN THE HIGH COURT OF JUSTICE HCA No of 2003 IN THE MATTER OF SECTION 4 5 OF THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD TOBAGO ACT No 4 OF 1976 IN THE MATTER OF SECTION 87 OF THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD TOBAGO IN THE MATTER OF SECTION 70 OF THE CRIMINAL PROCEDURE ACT CHAPTER 12:02 IN THE MATTER OF THE DETENTION OF SANGIT CHAITLAL FROM 4 th JANUARY 1994 TO THE PRESENT DAY BY THE COMMISSIONER OF PRISONS HIS OFFICERS SERVANTS /OR AGENTS BEING OFFICERS OF THE STATE OF THE REPUBLIC OF TRINIDAD TOBAGO IN THE MATTER OF AN APPLICATION BY SANGIT CHAITLAL A CITIZEN OF THE REPUBLIC OF TRINIDAD TOBAGO ALLEGING THAT CERTAIN PROVISIONS OF THE SAID CONSTITUTION HAVE BEEN CONTRAVENED ARE BEING CONTRAVENED IN RELATION TO HIM FOR REDRESS IN ACCORDANCES WITH SECTION 14 OF THE CONSTITUTION BETWEEN SANGIT CHAITLAL Applicant THE ATTORNEY GENERAL OF TRINIDAD TOBAGO Respondent Appearances: Before the Honourable Mr Justice Myers (Acting) Dr Charles Seepersad and Mr Mark Seepersad instructed by Mr Gerald Ramdeen for the Applicant Mr Avory Sinanan SC and Mr Mitra Bimsingh for the Respondent Page 1 of 9

2 TRINIDAD TOBAGO IN THE HIGH COURT OF JUSTICE HCA No of 2003 IN THE MATTER OF SECTION 4 5 OF THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD TOBAGO ACT No 4 OF 1976 IN THE MATTER OF SECTION 87 OF THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD TOBAGO IN THE MATTER OF SECTION 70 OF THE CRIMINAL PROCEDURE ACT CHAPTER 12:02 IN THE MATTER OF THE DETENTION OF FAZAL MOHAMMED FROM 4 th JANUARY 1994 TO THE PRESENT DAY BY THE COMMISSIONER OF PRISONS HIS OFFICERS SERVANTS /OR AGENTS BEING OFFICERS OF THE STATE OF THE REPUBLIC OF TRINIDAD TOBAGO IN THE MATTER OF AN APPLICATION BY FAZAL MOHAMMED A CITIZEN OF THE REPUBLIC OF TRINIDAD TOBAGO ALLEGING THAT CERTAIN PROVISIONS OF THE SAID CONSTITUTION HAVE BEEN CONTRAVENED ARE BEING CONTRAVENED IN RELATION TO HIM FOR REDRESS IN ACCORDANCE WITH SECTION 14 OF THE CONSTITUTION BETWEEN FAZAL MOHAMMED Applicant THE ATTORNEY GENERAL OF TRINIDAD TOBAGO Respondent Before the Honourable Mr Justice Myers (Acting) Appearances: Dr Charles Seepersad and Mr Mark Seepersad instructed by Mr Gerald Ramdeen for the Applicant Mr Avory Sinanan SC and Mr Mitra Bhimsingh for the Respondent Page 2 of 9

3 REASONS 1. Introduction 1.1 I deal with these Motions together because the parties agreed at an early stage they should be called together and that Mr Mohammed s would abide the outcome of Mr Chaitlal s. 2. Background Facts 2.1 When the Privy Council decided Pratt & Morgan v The Attorney General of Jamaica 1 the Applicants had been among more than forty men who had been awaiting execution for more than five years. In respect of those men some two months after Pratt, the then President of the Republic, His Excellency Mr Noor Hassanali had written to the then Chief Justice Clinton Bernard informing him that he had commuted their sentence of death to life imprisonment, for the term of natural life. On the 4 th of January 1994, the then Chief Justice made an order, the effect of which was an order of imprisonment for the rest of the Applicants natural lives in the State Prison and that they be kept there during the whole of the said term of imprisonment. These orders were purported to have been made under 70 of the Criminal Procedure Act The Applicants in their affidavits tell the story that when the Order of the Chief Justice was made on the 4 th of January, they had no idea that their sentence of death was about to be reviewed, they were not informed, or rather given any opportunity to see the materials before the Minister of National Security, the Mercy Committee and the President, nor were they given the opportunity of making representations. The effect of the decision was that the Applicants were to die in prison. These men were not shown copies of the relevant documents, they were not allowed to make representations, nor were they legally represented. They were taken thereafter to the Maximum Security Prison at Arouca. 2.3 The Applicants complain that the sentence at the State s pleasure is an indeterminate sentence; that is to say a sentence containing no determined date for release. The person is detained at such place and under such conditions as the Minister may direct. The Minister decides when he is to be released on licence and 1 (1993) 43 WIR Chapter 12:02, Laws of Trinidad and Tobago. Page 3 of 9

4 upon what conditions. The effect of such a sentence is therefore that it is not one determined by the Court. The Minister determines for how long the convicted person is to be detained. This is a classical sentencing in that sentence is effectively passed by the Minister. It is therefore an exercise of judicial power and cannot be performed by the executive. 2.4 On 28 th June 2005 I ordered that the Applicants sentences be vacated and that they be re-sentenced by the High Court in accordance with the law. I also the directed the applicants be examined by a psychiatrist and have probation reports and other prison reports submitted to the Court. I understand that this has been done. In the written (paragraph 26) and oral submissions for the Attorney General Mr Sinanan SC conceded the position argued for by Mr. Seepersad (paragraph 5) that that sentence for the rest one s natural life was unknown to the law. 2.5 I now give reasons for my decision after some considerable delay which I regret. 3. Issues 3.1 The parties identified a series of issues for me to determine. The evolution of events has meant that it is no longer necessary to deal with all of the authorities and submissions made, especially those which concern precedent. 3.2 During the course of the time that this case was being argued before me two important decision of the Privy Council appeared. The first was Roodal 3, which went in one direction and the others were Boyce 4, Matthews 5 and Watson 6, which went in the opposite direction. 3.3 I have not burdened this judgment with references to the interlocutory applications and rulings that I considered. (a) The first issue: the ouster clause effect of 38 ad 80 of the Constitution. The first issue was what Mr Mark Seepersad called the ouster clause effect of 38 and 80 of the Constitution. I can dispose of this point shortly as there has been no real attempt to seek to make the former President answerable in any way to this or any Court for his decision to act in accordance with the decision of the Privy Council in Pratt & Morgan v The Attorney General of Jamaica. Indeed the State put before the court evidence of the then 3 (2003) 64 WIR (2004) 64 WIR 37 5 (2004) 64 WIR (2004) 64 WIR 241 Page 4 of 9

5 (b) Minster of National Security that the His Excellency had so acted in accordance with advice. 7 The second issue: the power of the Court to review the exercise of the prerogative of mercy pursuant to 87 of the Constitution. (iii) (iv) (v) The second issue relates to the power of the Court to review the exercise of the prerogative of mercy pursuant to 87 of the Constitution. Mr Sinanan accepted that it was obvious that there could be such a review for an obvious error and this is in keeping with the rule of law and the Constitution as the supreme law of the land. Mr Sinanan also accepted that the tide had changed beginning with the decision in Council of Civil Service Unions v The Minister for the Civil Service 8 (the GCHQ case). He did not seek to refute Mr. Seepersad reliance on Burt v Governor General and R v Secretary of State for the Home Department, ex parte Bentley. 9 Instead Mr Sinanan directed my attention to the suggestion that Lord Diplock s observations in de Freitas v Benny 10 that the prerogative of mercy remained beyond challenge: except in so far as it may have been altered by the Constitution the legal nature of the exercise of the royal prerogative of mercy in Trinidad and Tobago remains the same as it was in England at common law. At common law this has always been a matter which lies solely in the discretion of the sovereign, who by constitutional convention exercises it in respect of England on the advice of the Home Secretary to whom Her Majesty delegates her discretion. Mercy is not the subject of legal rights. It begins where legal rights end. A convicted person has no legal right even to have his case considered by the Home Secretary in connection with the exercise of the prerogative of mercy. In tendering his advice to the sovereign the Home Secretary is doing something that is often cited as the exemplar of a purely discretionary act as contrasted with the exercise of a quasi-judicial function.. The fact of the matter is that, contrary to Mr Sinanan s position, since the decision in Lewis v Attorney General of Jamaica 11 the decisions of ex parte Bentley 12 and Burt v Governor General have 7 See 80(2) of the Constitution. See also Thomas & Paul v The Attorney General HCA Nos. 6346/7 of 1985, 51, per Davis J and Lincoln Smith v The Attorney General HCA No 2475 of 2003, Dean-Amorer J. 8 [1984] 3 All ER [1994] QB [1976] AC 239, [2001] 2 AC Above. Page 5 of 9

6 (c) been preferred to that de Freitas 13 and Reckley (No 2) 14 which was not followed in Lewis. 15 The third issue: the correct source of power, whether 69 to 70 of the Criminal Procedure Act or 87 of the Constitution. (iii) (iv) (v) The third issue has to do with the correct source of power, whether 69 to 70 of the Criminal Procedure Act or 87 of the Constitution. The submission advanced by Mr Seepersad was that 70 is contrary to the separation of powers and if not the Chief Justice must exercise the 70 power in accordance with the fundamental rights. The way that submission was summarized was to say that in the final analysis, the submission for the Applicants is that 70 of the Criminal Procedure Act transfers the powers of commutation from the Executive/President to the Judiciary thereby empowering the judiciary to exercise a power which the Constitution had vested in the Executive. That is not so. In my view all that 70 does is to give effect to the exercise of the power under 87 of the Constitution. The words of 70 are clear: if the President in the name and on behalf of the State intends to extend mercy to any such person upon condition of imprisonment, then the Court shall allow it. To paraphrase the section, it provides a procedural means or administrative device to give effect to the exercise of a 87 power. More than that the decisions in Pratt, 16 Lewis 17 and Matthews 18 all make clear that the courts are imposing as matter of law an outcome that had the effect of a general commutation not an individual one; it is not a sentencing exercise. It seems the effect of the concession made by the Attorney General has been to obscure that which argument might have made plain. Just as on the facts of these cases, all of the forty plus men are similarly circumstanced and similarly treated by the President: their death sentences were commuted to a sentence of imprisonment. There has this been only one sentence, the original sentence, which has been commuted and which commutation need not be attended 13 Above. 14 Reckley v Minister of Public Safety and Immigration (No 2) [1996] AC See Lewis v The Attorney General of Jamaica [2001] 2 AC 50, 77b-c, per Lord Slynn of Hadley. 16 Above. 17 Above. 18 Above. Page 6 of 9

7 (d) by a trial or public hearing. And 4 and 5 of the Constitution have no application. The fourth issue: whether the effect of the commutation was to impose a sentence unknown to the law. (iii) (iv) I turn now to the fourth issue which is whether the effect of the commutation was impose a sentence unknown to the law. Mr Seepersad submitted that the commutation of the death sentence was the grant of a conditional pardon and that if the condition were invalid then the pardon was unconditional. This too was conceded by the Attorney General without any argument. Mr Seepersad went so far as to argue that the sentence was a usurpation of the legislative function citing Hinds. 19 Quite why the sentence of natural life was different from a life sentence was never explained by either side. Mr Seepersad argued that the term natural life cannot be read as a proviso to a life sentence and instead it was a recommendation that the there be a minimum sentence of 20 years. Mr Sinanan accepted that it was a sentence unknown to the law and cited Green Browne v R 20 and Chuck Attin v Attorney General. 21 The speech of Lord Hobhouse in Green Browne (above) and its citation by Mendonca J (as he then was) in Chuck Attin concerned detention at the pleasure of the Governor or Her Majesty and therefore offended against the separation of powers. In Green Browne (above) Lord Hobhouse, like Mendonca J recognized that, after modifying the offending statutory provision so that it is to be read detained at the Court s pleasure and the offender needed to have his sentence reviewed from time to time. That argument has no application to this case since the decision of the Judicial Committee in Matthews. Lord Hoffman for the majority in Matthews disposed of that argument in these words: 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 19 Hinds v R (1975) 54 WIR (1999) 54 WIR HCA No. 217 of 2003, Mendonca J ( ). Page 7 of 9

8 (e) (v) (vi) 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. (para 28). Furthermore, I have had my attention drawn to the very helpful and incisively analytical decision of Rajkumar J in Allan Henry v The Attorney General 22 the judge discussed 23 the sentence of natural life both at common law and on the statue book. He concluded that a sentence of 75 years could be less or equivalent to natural life. It could never be more than natural life as imprisonment must end upon the end of natural life. More than that the sentencing in Chuck Attin demonstrated that a life sentence could result in more than 20 years. The judge concluded after argument that the sentence of natural life was well known to the law. The fifth issue: the right of the Applicant to invoke the Prison Rules to insist upon a review every four years and to make representations and all of that is due process. (iii) The fifth issue is the right of the Applicants to invoke the Prison Rules to insist upon a review every four years and to make representations and all of that is due process of law. Mr Sinanan argued there was no obligation on the part of the Prison Authorities to encourage or hear any representation on the part of the prisoner. However, in reliance on the decision in Lincoln Smith, 24 the prisoner has mandamus available to him. To the same effect is the Mercy Committee. The prisoner, if he is so minded, can make representations to the Mercy Committee. I agree and I am supported by the reasoning in Allen Henry 25 where Rajkumar J ruled that the right to petition His Excellency the President for the exercise of discretion under 87 of the Constitution can be invoked by a prisoner at any time. If the prisoner chooses not to petition for mercy on his own accord there exist the scheduled reviews under the Prison Rules, where, should there be a favourable review, it is conceivable that it could culminate in a recommendation by the Minister of National Security to the President for the exercise of his jurisdiction to grant mercy under 22 CC , 1 st December At pages 51 to Above, Dean-Amorer J. 25 Above. Page 8 of 9

9 4. Conclusion and disposition 87 of the Constitution, citing Lewis. 26 In this the prisoner should know that a review was being conducted in relation to him; he should know the material that is being considered; he should have the opportunity to put forward representations by himself or his advisors in response. He should have sufficient time available to do so. 4.1 Had I not ordered wrongly there should have been a re-sentencing hearing I might have been prepared to explore in more depth whether the applicant have been deprived of due process. 4.2 In all the circumstances apart from the order that I have already made I dismiss the motions with no order as to costs. Dated this 24 th day of April David A Myers Puisne Judge (Acting) 26 Above. Page 9 of 9