This morning the Judicial Committee of the Privy Council handed down judgment in the constitutionally important appeal of Chandler v The State (No 2) (Trinidad and Tobago) [2022] UKPC 19.
Sitting as nine-member panel, owing to the significance of the case, the Privy Council dismissed the appeal, affirmed the decision in Matthew v The State [2005] 1 AC 433, and declined to follow the reasoning of two recent decisions of the Caribbean Court of Justice. Howard Stevens QC, Tom Poole QC, Fyard Hosein SC (of the Bar of Trinidad and Tobago) and Hannah Fry acted for the Respondent, instructed by Charles Russell Speechlys LLP.
The central issue in the case was whether the mandatory death penalty in Trinidad and Tobago, pursuant to section 4 of the Offences Against the Person Act 1925, is unconstitutional. Previously, in Matthew, by a majority, the Privy Council held that the mandatory death sentence for murder, which was an existing law in Trinidad and Tobago when the Constitution came into force, was prevented by the savings law clause in section 6 of the Constitution from being unconstitutional.
Unanimously dismissing the appeal, the Privy Council held that the Constitution of Trinidad and Tobago saves existing laws, including the mandatory death penalty, from constitutional challenge. After considering the principle of stare decisis in detail, the Privy Council held that here was no basis for overruling Matthew, and in fact good reasons not to do so:
- First, the issue as to the interpretation of the savings clause extended beyond the mandatory death penalty, and allowing the appeal would introduce considerable uncertainty into the law.
- Second, the Board had consistently adopted the approach to the interpretation of the savings clause which it upheld in Matthew.
- Third, the Board was not persuaded by the reasoning of the Caribbean Court of Justice in Nervais and McEwan that Matthew was wrongly decided.
- Fourth, the interpretation in Matthew of the relationship between the savings clause in the Constitution and the modification clause in the Act establishing the Constitution, was consistent with the wording of the Constitution and properly gave priority to the Constitution as the supreme law of Trinidad and Tobago.
- Fifth, the principle of the separation of powers was not an overriding supra-constitutional principle but a description of how the powers under a real Constitution are divided. The Constitution did not prohibit Parliament from enacting a mandatory punishment to be inflicted on all persons who commit a particular crime. The fact that, but for the savings clause, the mandatory death penalty would infringe section 4 of the Constitution was a different matter.
- Sixth, the acceptance of a justiciable principle of the rule of law that was untethered from the Constitution would contradict the fundamental provision that the Constitution is the supreme law of Trinidad and Tobago and would militate against legal certainty.
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