Re Jurisingh

• Jurisdiction: Trinidad & Tobago
• Judge: Sharma, J.A.,Sharma, J.
• Judgment Date: 29 April 1993
• Neutral Citation: TT 1993 CA 11
• Docket Number: Civil Appeal Nos. 151, 152 and 153 of 1992
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 29 April 1993

Court of Appeal

Bernard, C.J., Sharma, J.A; Hamel-Smith, J.A

Civil Appeal Nos. 151, 152 and 153 of 1992

Re Jurisingh

Appearances:

Mr. G. Dezlin for Gayman Jurisingh.

Mr. R. L. Maharaj and Mr. P. Ramadhar for Fazal Mohammed.

Mrs. A. Yorke-Soo Hon. and Mr. A. Sheppard for Peter Matthews.

Mr. A. Jacelon S.C., Mr. N. Bereaux, Mr. I. Benjamin and Mr. R. Harnanan for the state.

Constitutional Law - Fundamental rights and freedoms — Execution of death penalty for murder — Riley & Ors v. A.G. of Jamaica [1983] A.C. 719 applicable — No reasonable relief or legitimate expectation established that sentences would not be carried out.

Constitutional Law - Constitution — Comparison between Jamaica Constitution, s.17 and Trinidad & Tobago Constitution 1980, ss. 5(2), 6.

Sharma, J.A.

1 This judgment was prepared by Hamel-Smith J. and me. This appeal comes before this court, at a time when there is a great upsurge in crime in the country, and against a background of a relentless and intense public debate as to whether capital punishment ought to be abolished or not.

2 Naturally this is not an issue in which the court must become embroiled, as its function is to determine and declare the rights of citizens. Matters of enforcement and execution of orders are essentially for the executive.

3 The appellants, Gayman Jurisingh (“Jurisingh”) Fazal Mohammed (Mohammed”) and Peter Matthews (Matthews) are all convicted murderers who have exhausted all their legal remedies before the courts, and by this appeal seek to avoid being executed on the ground that to do so now would be unconstitutional.

4 Jurisingh was convicted on June 15, 1982, and his final appeal was dismissed by the Judicial Committee of the Privy Council (“the Privy Council”) on May 28, 1990.

5 Mohammed was convicted on July 19, 1982. His final appeal dismissed by the Privy Council on February 5, 1990. Matthews was convicted on February 2, 1984 and his appeal was dismissed by the Privy Council on December 15, 1986.

6 On November 5, 1992, warrants for the execution of these were issued and read to them. The date set for execution was November 10, 1992. On November 9, 1992 however, the appellants filed constitutional motions, in which they sought, inter alia, declarations to the effect that to carry out the death sentence would be unconstitutional. These motions were heard with the utmost dispatch by Jones J. ending with his oral decision dismissing the motions on November 11, 1992.

7 The reasons for the dismissal were amplified in a later written and concise judgment, in which the trial judge held, inter alia, that delay between the exhaustion of the appellants legal remedies and the reading of the warrants was not contrary to any of the provisions of the Constitution. In arriving at this decision, the trial judge relied heavily upon the case of Noel Riley and ors. v. Attorney General of Jamaica [1983] A.C. 719 ( Riley's case)

8 At the commencement of this appeal, counsel for all the appellants agreed, with the leave of the court, that counsel for Mohammed would be allowed to begin. His submissions were adopted by counsel for the other two appellants except for slight variations wherever the facts so warranted. In this judgment, the submissions made on behalf of Mohammed are treated as submissions made on behalf of the other two.

9 Counsel for Mohammed made a number of legal submissions but for convenience, brevity and, hopefully, clarity they can broadly de divided into three categories - namely - submissions based on Riley's case, those based on the theory of ‘reasonable belief’ and on the doctrine of ‘legitimate expectation.’

Outline of Submissions by Mr. Maharaj

10 Mr. Maharaj submitted that the challenge in the matter was neither constitutionality of the judicial sentence, nor of capital punishment per se, but was against the executive arm of the state (‘the Executive”) in its conduct in carrying out the death sentence after protracted delay. This, he contended, violated the appellants fundamental rights guaranteed under the Constitution of Trinidad and Tobago (‘the Constitution”) and, therefore, it would now be unconstitutional for the executive to carry out the death sentence.

11 He further submitted -that such procrastination by itself could raise, and did raise a reasonable belief on Mohammed's part that the death sentence would be commuted. This apart he contended that in this particular case the then Executive of the day had adopted the Prescott Report (of which more will be said later) in which one of the many recommendations proposed that convicted murderers who had spent ten years in death row should not be executed. Mohammed, he said, fell into this category which gave him a legitimate expectation that he would not be executed and could not now be executed.

12 We think it would be convenient to deal first of all with the submissions on Riley's case, mainly because the trial judge relied heavily on it in arriving at his decision to dismiss the motions, and also because we think that the other issues raised on this appeal seem to impinge upon Riley's case: in one way or another.

The Facts

13 The facts in Riley's case are in no way unique, yet they bear a striking similarity to the facts which give rise to the instant appeals.

14 Riley and four other men were convicted of murder and sentenced in various dates between March, 1975 and March, 1976. They appealed to the Jamaican Court of Appeal and to the Privy Council without success. Between 1975 and 1976 the death penalty was in abeyance in Jamaica but, after much debate in Parliament, it was retained. The Executive thereafter sought to execute the condemned men.

15 The appellants sought declarations that their execution after such a prolonged delay would infringe their rights guaranteed by section 17(1) of the Jamaican Constitution. The motions were dismissed by the courts of Jamaica. On appeal to the Privy it was held (Lord Scarman and Brightman dissenting), dismissing the appeals, that since at the time immediately before the Constitution came into effect execution of a death sentence would have been a punishment of a description which was lawful, notwithstanding any delay between the passing of the sentence and the issuing of the warrant of execution, the punishment was ‘to the extent’ that the law authorised within the meaning of section 17(1) of the Constitution and therefore did not contravene section 17(1).

16 It was to these provisions in the Jamaican constitution that counsel for Mohammed sought to ground his submissions. He contended that there was a fundamental difference between the provisions of section 17 in the Jamaican constitution and section 6 of the Constitution. If such a distinction was correct, he submitted, then this court could not follow the ruling in Riley's case.

17 We ought to point out at this stage that it was agreed by both sides that if this court held that there was no substantial difference between the relevant constitutional provisions of Jamaica and those in the Constitution, then this court would be bound to follow the Privy Council's decision in Riley's case. This would dispose of at least one of the more substantial issues in the appeal.

18 In attempting to persuade us that there were substantial differences between the relevant provisions in the Jamaican Constitution and the Constitution, counsel submitted that whereas in the former, the section which expresses the rights there are words of limitation in the enjoyment of these rights, in the latter's corresponding section there are no such words of limitation. Section 13 of the Jamaican Constitution, he argued, is in the nature of a preamble, while its Trinidad and Tobago counterpart, section 4 is an enacting section.

19 Another difference, he submitted, was that there is no clause of existing law in the Jamaican Constitution, that is to say, no clause which preserves the existing law in Jamaica, quite unlike the Constitution in which there is a specific section, section 6, which preserves all existing law.

The State's Submissions(Mr. Jacelon)

20 Mr. Jacelon (who did not appear in the court below) submitted, on the other hand, that the decision in Riley's case was wholly applicable to the instant case and proceeded to show us why he thought so.

21 It is true, he submitted, that Riley's case was based on a construction of section 17 (1) and (2) of the Jamaican Constitution but that section, he argued, was to the same effect as section 6 of the Trinidad and Tobago constitution.

22 It is convenient at this point to set out in detail the respective provisions:- Section 17 of the Jamaican constitution provides as follows:

• “(1) No person shall be subjected to torture or to inhuman or degrading punishment or other treatment;

• (2) Nothing contained in or done under the authority of any law shall be held try be inconsistent with or in contravention of this section to the extent that the law in question authorises the infliction of any description of punishment which was lawful in Jamaica immediately before the appointed day.”

Section 6(1) of the Constitution(Trinidad and Tobago) provides: “Nothing in sections 4 and 5 shall invalidate (a) an existing law…

23 Section 4 of the Constitution contains the rights and freedoms which are referred to in broad and absolute terms(in that section).

24 These rights and freedoms which Chapter 1 of the Constitution protects are those which existed on August 1, 1976. Section 5 sets out specific prohibitions upon what may be done by future Acts of Parliament. These prohibitions are set out in paragraphs (a) to (h), and are directed to what is meant by due process of law in section 4 (a) and the protection of the law in section 4(b).

25 They do not themselves create new rights or freedoms additional to those recognized and declared in section4. They merely state...