AG: Consultations coming on death penalty, sexual orientation discrimination

The content originally appeared on: Trinidad and Tobago Newsday

Faris Al-Rawi

ATTORNEY General Faris Al-Rawi has promised there would be national consultations next year on Privy Council judgements on whether the death penalty should be mandatory or discretionary and on the constitutionality of Sections 13 and 16 of the Sexual Offences Act, which criminalise consensual conduct.

Al-Rawi made this promise during the virtual 39th session of the UN’s Universal Periodic Review Working Group’s review of human rights in Trinidad and Tobago.

On the former, Al-Rawi said, “TT just last week, attended before the Privy Council which is its highest court of appeal, this particular matter of the issue of the mandatory implementation of the death penalty.

“We are currently awaiting the judgement of that nine-member court of the jurisprudence of the Privy Council which will start the final review, of our position in relation to the death penalty.”

Saying the death penalty remains on TT’s law books, buthas not been implemented since 1999, Al-Rawi said, “Upon delivery of this judgement, which we expect somewhere in the month of January 2022, the country intends to embark upon a national discussion in relation to the outcome of the decision (of the Privy Council).”

He said the process through which the death penalty can be implemented involves a full, open tribunal process, from the magistrates’ court all the way to the Privy Council, if necessary. Death sentences have been converted to life imprisonment sentences, he said, “by virtue of the Privy Council, in the case of Pratt vs Morgan.”

In 2018, the Privy Council reserved ruling on an appeal by convicted prisoner Jay Chandler, who received permission to challenge his sentence on the basis that the mandatory death sentence was unconstitutional, as deemed by the Caribbean Court of Justice (CCJ) in a ruling out of Barbados that year. Chandler had been convicted and sentenced to hang for the 2004 murder of an inmate at the prison in Arouca in 2011. The State has maintained that the CCJ’s ruling was not binding on TT, nor was the separation of powers breached by the imposition of the mandatory death penalty.

Al-Rawi also said, “With respect to equality of rights in the sphere of discrimination as it relates to sexual orientation, TT is again currently before its highest court of appeal (the Privy Council).”

He said this matter involved the legal challenge filed by Jason Jones in 2017 on the constitutionality of Sections 13 and 16 of the Sexual Offences Act.. Those sections, Al-Rawi continued, “criminalise same-sex consensual conduct.

“Those sections are before the Privy Council. We are awaiting the decision as to whether the High Court and Court of Appeal rulings which have already struck down these sections will be upheld.

“This is important,” he explained, “because the sphere of effect of this particular matter, goes much further than the current Sexual Offences Act.”

He said there are 27 other laws which could be affected by the Privy Council’s ruling on this matter, which is also expected next year, and these laws “are under review on the same issue.”

As TT is a Commonwealth nation, Al-Rawi said it will be important to find out “whether the Privy Council’s decisions will have imported effect, in terms of the interpretation of the laws.

He reiterated, “We are bound to await the outcome of this decision.”

Once this judgement is received, hesaid, “We will simply be taking steps in terms in terms of national discussion and legislative consideration on the many issues that effect the several laws…27 in total.”

In examinating issues relating to the Sexual Offences Act regarding discrimination on the basis of sexual orientation, Al-Rawi said, “We have developed a sexual harassment bill.”

He added this legislation is designed to deal with “complaints of the sexual harassment nature, which includes orientation issues,” and will allow “full protection under due process, so there can be visible and measured response to harassment.”

He also said the Sexual Offences Act is being examined as to how it deals with voyeurism and registration of sexual offenders, consultations have been completed and legislative amendents will come to Parliament this month.

On abortion, Al-Rawi said, “Currently, our laws do permit…when risk to the mother is in fact a medical survival issue…the legal carrying-out of abortions.”

With respect to voluntary reproductive choices, Al-Rawi said this “is a matter of policy discussion which has been undertaken by the Office of the Prime Minister.”

He also said Government is reviewing laws on corporal punishment.. After saying there were recent public views about continuing this type of punishment, Al-Rawi said, “Advice has been received by the Government of TT which looks at the issue of flogging as corporal punishment, with a potential for repeal of these laws.”

He said once public consultations are completed, Government will be able to finalise its policy on legislative amendment.

While TT does not have a national human rights institution, Al-Rawi said the combination of the Equal Opportunity Act, Equal Opportunity Commission, Equal Opportunity Tribunal and the Office of the Ombudsman “is the mechanism that is currently in operation to treat with this.”