Anthony Cohen v The Attorney General of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Madam Justice Eleanor Joye Donaldson-Honeywell |
| Judgment Date | 25 October 2023 |
| Neutral Citation | TT 2023 HC 333 |
| Docket Number | Claim No. CV2022-02240 |
| Court | High Court (Trinidad and Tobago) |
In The Matter Of The Constitution Of The Republic Of Trinidad And Tobago Being The Schedule To The Constitution Of The Republic Of Trinidad And Tobago Act Chap 1:01 Of 1986
and
In The Matter Of An Originating Motion Of Anthony Cohen (A Person Alleging That Certain Provisions Of The Said Constitution To Wit Section 1, 2, 4, 5 14(1), 53 And 54 Of The Said Republican Constitution Have Been, Are Being And Likely To Be Contravened In Relation To Him) For Redress In Accordance With Section 14(1) Of The Said Constitution.
and
In The Matter Of Sections 4, and 6 of the Offences Against The Persons Act Chap, 11:06 Of The Laws Of Trinidad And Tobago.
and
In The Matter Of Section 2a (1) Of the Criminal Law Act Chap.10:04 of the Revised Laws of Trinidad and Tobago
and
In The Matter Of Sections 3 and 4 of the State Liability and Proceedings Act Chap, 8:02
The Honourable Madam Justice Eleanor Joye Donaldson-Honeywell
Claim No. CV2022-02240
IN THE HIGH COURT OF JUSTICE
Port of Spain — Virtual Hearing
Mr. Anthony Cohen, self-represented
Ms. Mary Davis and Ms. Jinai Chong Sing, instructed by Mr. Nairob Smart, Attorneys at Law for the Defendants
Mr. Douglas Mendes SC, Mr. Aaron Mahabir instructed by Ms Kavita Roop Boodoo, Attorneys-at-Law for the Law Association of Trinidad and Tobago
Ms. Savarna Jaimungalsingh for the Criminal Bar Association
The Claimant, a self-represented litigant and currently incarcerated, filed this Claim, which challenges the constitutionality of the savings for existing law clause [“savings clause”] of the Constitution. The relief sought in his constitutional motion included the following declarations:
1 st Relief — A Declaration that the mandatory death penalty, which was an existing law before 1976 and is saved by the savings clause found in section 6 of the Republican Constitution, violates international treaties and conventions, of which the State of Trinidad and Tobago is a signatory and which denounce the imposition of the death penalty, as it is cruel and inhumane punishment.
3 rd Relief — A Declaration that the failure of Parliament to amend the Constitution by altering the “savings clause” in order to remove the mandatory death penalty from enjoying the protection of immunity from invalidation, constitutes a breach of his constitutional right to have Parliament make laws for the peace, order and good government of the Republic of Trinidad and Tobago. [Emphasis added]
4 th Relief — A Declaration that the “savings clause” in the Republican Constitution which makes the mandatory death penalty law consistent with the Constitution despite being clearly inconsistent with sections 1, 2, 4 and 5, pollutes section 2, the Supreme Law Clause, by modifying it to include a law which, had it not been for the savings clause, violates the right to life, the protection of the law, equality before the law, due process of the law, the right to a fair trial by an independent and impartial tribunal established by law and the prohibition against the imposition of cruel and inhumane punishment.
5 th Relief — A Declaration that the Republican Constitution is unconstitutional as it has authorized the Death Penalty, which is protected by the savings clause to abrogate, abridge, infringe all the rights and freedoms which the Bill of Rights sought to confer on the citizens of the Republic of Trinidad and Tobago.
6 th Relief — A Declaration that the Judgment of the Judicial Committee of the Privy Council in CHANDLER AND THE STATE has confirmed that the Republican Constitution is ambiguous because it has created the Bill of Rights to confer fundamental rights and freedoms on the citizens and at the same time saved the Death Penalty which is a punishment that abrogate, abridge, infringe, and authorized the abrogation, abridgement and infringement of all the rights and freedoms which the Bill of Rights sought to confer on the citizens of the Republic of Trinidad and Tobago.
9 th Relief — A Declaration that the savings clause which saved existing laws compromised the constitutional declaration that Trinidad and Tobago is a sovereign democratic state, because the sovereignty was sacrificed since existing laws, were not laws passed by the Republican Parliament for the peace, order and good government of the Republican State, but emanated from the British Parliament, the Legislative Council and the Independent Parliament.
14 th Relief- A Declaration that the inclusion of the savings clause in the Republican Constitution cannot be justified in a society that has regard for the protection of fundamental rights and freedoms as contained in the Bill of Rights and the deeply entrenched provisions.
The Claimant further seeks an Order “striking down” the savings clause as being void and, by the said striking down, making the death penalty unconstitutional. He also seeks an order granting his release on the ground that the sentence imposed on him was unconstitutional.
The Claimant is incarcerated, having been convicted of murder and sentenced to the mandatory death penalty. He seeks constitutional redress for claimed breaches of his constitutional rights arising from the passage of the Constitution Act 1976 [1976 Act] and the inclusion therein of the savings clause at Section 6.
More specifically, the Claimant contends that the inclusion of that savings clause is unconstitutional as it saves the mandatory death penalty provided for at section 4 of the Offences against Person Act, Chapter 11:08 despite it being a cruel and inhuman punishment.
The Claimant cites, as a starting point for his challenge, the decision of the Judicial Committee of the Privy Council in Jay Chandler v The State (No. 2) (Trinidad and Tobago) [2022] UKPC 19. In so doing, he underscores that the Privy Council held that, while the mandatory death penalty is a cruel and unusual punishment, it is striking that it is still on the statute books of Trinidad and Tobago, and the Parliament has not taken steps to remove it. However, the Claimant accepts that the Privy Council further held that section 6 of the Constitution protects the mandatory death penalty from any challenge for inconsistency with section 5 of the Constitution and, indeed, renders the mandatory death penalty constitutional.
In light of the foregoing, although the Claimant's specific concern is with the death penalty, his focus in the instant claim is on the contention that the savings clause at section 6 of the Constitution is itself unconstitutional because it is a provision that is not reasonably justifiable in a society that respects the fundamental rights and freedoms of the individual and is therefore inconsistent with section 13 of the Constitution.
Further, the Claimant contends that the 1976 Act, which brought the Constitution and section 6 of the Constitution into force, is inconsistent with section 5(2)(b) of the Constitution by enacting section 6, which saves the mandatory death penalty and is therefore rendered invalid by section 13 of the Constitution.
Additionally, the Claimant argues that because the mandatory death penalty is inconsistent with section 5 of the Constitution, it is rendered invalid by Section 2 of the Constitution, which enshrines the Constitution as the supreme law.
Therefore, since section 6 of the Constitution applies to laws inconsistent with sections 4 and 5, it does not apply to laws inconsistent with section 2. Consequently, the Claimant argues that section 6 of the Constitution should be read as subordinate to section 2. He seeks to persuade the Court to conclude that section 6 of the Constitution is unconstitutional since it is inconsistent with sections 2 and 13.
Further, the Claimant challenges as unconstitutional the failure of Parliament to amend the savings clause and seeks a declaration of the Court that Parliament thereby breached his constitutional rights.
Another submission made by the Claimant is that the effect of the savings law clause, in preserving the mandatory death penalty, violates Trinidad and Tobago's obligations in upholding international human rights standards.
After filing the Claim and supporting Affidavit on 17 June 2022, the Court issued directions on 21 July 2022 for filing an Affidavit in response by the Defendants on or before 7 October 2022. Proceedings herein were delayed by omissions on the part of the Defendants to file any response to the Claim. Eventually, at a Case Management Conference held on 6 January 2023, Counsel for the Defendants indicated that the Defendants would not seek to reply to the Claimant's Affidavit. Rather, the matter would be addressed by written submissions on points of law. Accordingly, the Court issued directions for the Defendants' written submissions to be filed by 27 February 2023.
The Defendants failed to file a response to the Claim after a further extension of time was granted in March 2023. The Claimant sought costs on account of the repeated non-compliance by the Defendants, which caused the matter to be adjourned. His application was deferred to the conclusion of the proceedings.
On the invitation of the Court, the Law Association of Trinidad and Tobago and the office of Public Defender were asked to assist with submissions on whether there is any merit to the constitutional challenge launched by a legally un-assisted lay litigant. There was a concern that the Defendants may have discounted the value of treating with this matter due to the Claimant's incarcerated status. This concern was later dispelled with the filing of thoroughly researched, well-articulated and nuanced submissions by Counsel for the Defendants. State Counsels are commended for the attention paid to this matter.
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