Written constitutions, however, are not panaceas for human rights. They are vulnerable both to the cunning of those who draft them and the lack of imagination of those who interpret them. Michael’s appeal was vulnerable on both scores. In the first place, we sought to argue that the death penalty was, in itself, a cruel and unusual punishment. We were emboldened to take this position because it was the stance of several judges in the great case of Furman v Georgia, recently decided by the US Supreme Court. They fortified our argument that the penalty of death ‘is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity’ (Justice Stewart), and that ‘the calculated killing of a human being by the State involves, by its very nature, a denial of the executed person’s humanity . . . in comparison to all other punishments today [it] is uniquely degrading to human dignity’ (Justice Brennan). But the problem which stared us in the face every time we looked at the Trinidad Constitution was that although Section 2 provided that no law shall ‘impose or authorise the imposition of cruel or unusual treatment or punishment’, Section 3 said ‘Section 2 shall not apply in relation to any law that is in force in Trinidad at the commencement of this Constitution’. Trinidad’s Constitution commenced at its independence in 1962, when death by hanging was in full swing under colonial law. In other words, what the draftsman gave with one hand in Section 2 – namely protection from inhumane treatment – he took away in Section 3, so far as the death sentence was concerned. This is the case in almost every ‘Westminster model’ constitution bequeathed by Britain to its former colonies. They include a Bill of Rights with its standard guarantee against inhuman punishment, but by one formula or another they slyly preserve punishments (such as whipping and hanging) which were lawful under the British colonial administration. The task that was to preoccupy me, on and off for almost twenty years, was to find a satisfactory legal way around this constitutional blockage.
The first argument which occurred was to deploy the Bill of Rights of 1688, a meagre measure which mainly protects the rights of parliamentarians, but which does prohibit the infliction of cruel and unusual punishments. Like other British laws, it was part of the law of the colony at the time of independence, and so was ‘preserved’ by the constitution in the same way as the law which prescribed hanging as the mandatory punishment for murder. Might one colonial law cancel the other out? The problem was that in 1688 death by hanging was not perceived as cruel, and was by no means unusual. The phrase originated from popular outrage at the treatment of Titus Oates, who was sentenced by the infamous Judge Jeffreys to life imprisonment as well as to whipping, pillorying and defrocking, for the crime of perjury in what was perceived to be a good (i.e. anti-Catholic) cause. This sentence was regarded both as ‘cruel’ (in the sense of over-severe) and ‘unusual’ (in the sense of ‘unbecoming’ or ‘inappropriate’). Notwithstanding the barbarity of 1688, we argued that these words meant ‘unbecoming to human dignity’, a phrase which applied to hangings as described by a prison warden who had seen many:
When the trap springs the prisoner dangles at the end of the rope. There are times when the neck has not been broken and the prisoner strangles to death. His eyes pop almost out of his head, his tongue swells and protrudes from his mouth, his neck may be broken, and the rope many times takes large portions of skin and flesh from the side of the face that the noose is on. He urinates, he defecates, and droppings fall to the floor while witnesses look on . . . A prison guard stands at the feet of the hanged person and holds the body steady, because during the first few minutes there is usually considerable struggling in an effort to breathe.
There may come a time when lawyers who read such descriptions are prepared to say, without rhetorical flourish or bothering to search for precedent, that by any standard of ‘human rights’ this is treatment by the State which irretrievably violates them. Even in America that time may come, probably when executions are televised and attract such ratings that the nation will only suppress this bread and circus barbarity by abolishing capital punishment. But in 1975, any appeal to human rights principles was regarded as the last resort of a desperate advocate, and it proved impossible even to begin to persuade five Law Lords that these death sentence rituals, in which they had themselves participated in Britain only a decade previously, were indecent and inhuman. Society does not progress quite so quickly.
The main plank of our argument was that a prolonged stay on death row amounted to cruel and unusual treatment, contrary both to the Bill of Rights and to Section 2 of the Constitution. We pointed out that in Britain execution had always been carried out quickly – the period between conviction, appeal, rejection of mercy petitions and execution averaged only six weeks. In Trinidad, prior to independence, the equivalent delay (even with an appeal to the Privy Council in London) averaged five months: by now it had risen to two years or upwards. We cited eminent psychologists, whose work united in describing death row as a ‘grisly laboratory, the ultimate experimental stress, in which the condemned prisoner’s personality is incredibly brutalised’. But this argument, too, came up against a glib judicial logic: if death row was a place of torture, why was Michael de Freitas so reluctant to be put out of his misery? He had delayed his death for sixteen months by appealing his conviction, and then extended his suffering for another sixteen months by taking these constitutional proceedings. The judges quite understood how a prisoner who wanted to go quietly and quickly to the scaffold might have cause for complaint if the State did not get around to executing him. He might even be entitled to bring a legal action demanding to be put to death. But he certainly could not complain about what the judges termed ‘self-induced delay’ caused by his own actions in appealing or in bringing constitutional motions like this one. It took two decades before the Privy Council saw the light, shone by Lord Scarman: ‘It is no answer to say that the man will struggle to stay alive. In truth, it is this ineradicable human desire which makes prolongation inhuman and degrading.’
The case was listed for May 1975. I was led by Louis Blom-Cooper, a remarkable institution in the Temple. The door to his room was always open, where his clever mind was available to young barristers: after a session with Louis, you came away emboldened to argue the impossible (until you were on your feet making the attempt). But the Michael X hearing was an introduction to the Privy Council’s attitude to human rights as brutal as Garfield Barwick’s after-dinner stories. Louis argued valiantly, but he stood at the lectern like a condemned man in front of a firing squad before crumpling to his seat. Lord Diplock, the most accurate hitman, needed no help from the other side: he motioned the usher for the fatal card from which the presiding judge read: ‘Their Lordships need not trouble the respondents, and will humbly advise Her Majesty that the appeal should be dismissed for reasons to be delivered later’.
Translated into ordinary English, this formula means that the appellant’s case is so hopeless that the State need not bother to answer it. We had lost, as the judgment would in due course confirm, and Michael was once again liable to execution. Denis, Louis and I trooped along Whitehall, talking of our next trick. It was the last, and the lowest, card in the death-row defender’s hand: an application to the court to stay the hanging of our client until it was established that he was sane. Such humanity as may be found in the common law decrees that the only humans who cannot be hanged are women while they are pregnant, and lunatics until they recover their wits. This latter exception was established centuries ago, by judges who had no compunction in burning witches, but drew the line at hanging village idiots. As one Chief Justice, Edward Coke, put it: ‘The execution of the offender is for example, but so it is not when a madman is executed; that should be a miserable spectacle, both against law, and of extreme inhumanity and cruelty, and be not an example to others’.
For all the craziness of the killings at Christina Gardens, and the paranoid symptoms Michael had exhibited to prison visitors, nobody had thought to check on his sanity. The Trinidad government had
refused point-blank our request to permit a psychiatrist to see him, so our final hope was to ask the courts to stay his execution until this avenue was explored. The prison authorities claimed there was no evidence of mental disorder, thereby ignoring (as V S Naipaul later put it in The Killings in Trinidad) the obvious evidence of his life, of ‘a man led to lunacy by all the ideas he had been given of who he was’. I had no hesitation in raising this issue and nor did Michael, although we knew it would be unwelcome to Kunstler and the ‘International Committee to Save Michael X’, whose crusade was predicated on the proposition that he was a perfectly sane ‘political prisoner’. We needed time to prepare and file a new constitutional motion and believed we would have it – the Privy Council always took months before delivering its judgments, which had to be drafted, agreed by five separate judges, and then printed before being formally handed down. But we reckoned without the irony: our argument about delay, which Lord Diplock derided as hopeless, had sufficient impact for him to write the judgment immediately, and for it to be agreed and handed down in record time, just two weeks later.
That day of judgment – Thursday, 15 May – passed without incident in Trinidad. My call from London that evening to Michael’s Port of Spain solicitor established that no death warrant had been read to him that afternoon for his execution the following Tuesday. He assured me we had at least a week, until the next Thursday, before the execution countdown could commence. I had the weekend to draft the fresh constitutional motion to stay the execution and force a proper inquiry into Michael’s sanity. The papers would arrive in Trinidad by courier on Tuesday (such was legal life before the advent of the fax machine) and would be filed in court on Wednesday.
Down on death row Michael too assumed he was safe for another week. But the death penalty brutalises all involved in it, including the State and its high officials. This time, the government was taking no chances. Disgracefully, it prevailed upon the Governor General to sign a warrant on Monday evening for Michael’s execution a few hours later – before dawn the next morning. This warrant was rushed to the Royal Gaol, where it was read to Michael at 9 p.m. There was no time for the traditional last meal, let alone for any last-minute legal action: the Court Registry was closed at night, his lawyers were off-duty and he was not permitted to call them; my draft papers would arrive a few hours after his death. John Lennon’s piano gave out no final tinkle, and Michael X was rushed to the gallows just as he had predicted, wearing the white robe and the Ku Klux Klan-style hood. Reports of his death say that he went quietly. Condemned men usually do, overpowered by the sense of relief of getting it finally over. (Albert Pierrepont, who hanged hundreds, could recall only one who struggled at the end, ‘and he was a German’.) I would have preferred him to kick and scratch and curse the flunkies about to breakfast around his twisting corpse, because I believe that of all the wasteful acts of violence done in this world, the time and money and imagination invested in despatching prisoners out of it tops the bill. But the dead man walked, leaving his lawyer to keep the promise made that day in his cage on death row, when silence fell.
I believed that the argument made in Michael X’s case was correct: the problem was that it had been made in his case. If the law is to be advanced through test-cases, the advocate’s first task is to select one with a set of facts most likely to pass the test. In 1980 I flew to Jamaica to meet some like-minded local lawyers, Denis Daley and Lloyd Barnett, and together we planned another approach to the Privy Council. Five inmates were selected, all of whom had been left on death row for five years after the rejection of their final appeal. It could not be said of them (as of Michael) that they had delayed their own deaths by taking legal actions, because the delay in executing them had been caused by Michael Manley’s government, which placed a moratorium on capital punishment while it was the subject of a commission of inquiry. Noel Riley and the four other appellants were courageous in lending their names to this appeal. It is an unhappy fact of life on death row that the best way to save your neck is to keep your head down: those selected for execution tend to be those who irritate the State by suing it. Once again, the argument would be that the constitution, which in Jamaica prohibited the infliction of ‘inhuman or degrading punishment or other treatment’ was infringed by keeping these men in death-row conditions for an unjustifiably prolonged period. The death-row chaplain testified to their ‘frightened, animal-like reaction’ when the warrants were read to them after the four-year delay, while two leading psychiatrists confirmed that all five appellants had ‘clinical features of psychological disturbances related in a causative way to the mental stresses they have undergone during the time they have been under sentence of death . . . the most prominent clinical features were those of anxiety and feelings of alternating hope and despair’.
The case of Noel Riley and others v Attorney General of Jamaica was dismissed in the local courts, which relied on the decision in Michael X’s case. I applied successfully to the Privy Council for leave to have the point re-argued, and this was done by the Jamaican lawyers at a hearing in 1981 which lasted just half a day. It was chiefly remarkable for the presence of Lord Scarman, who had a clear grasp of human rights principles, and who could not approve of leaving anyone – black or white – in degrading and inhumane conditions for five years. Could he persuade his colleagues? Behind the scenes the five judges were diametrically divided. Eventually, three of them declared that the State could execute whenever and in any way it wished, and could keep inmates on death row for as long as it liked, provided it did not use a crueller method than hanging (such as burning at the stake). Lord Scarman and a colleague eloquently dissented, but the Jamaican government rushed Noel Riley and his co-appellants to the gallows to ‘serve them right’ for bringing the case. They were followed over the next four years by eighty others.
In the justice game, losing by 3–2 is as bad as 5–nil. The catastrophic result of Riley was to remove all constitutional inhibitions on cruel treatment of death-row inmates in countries throughout the British Commonwealth. Condemned men could still petition the Privy Council for leave to appeal their conviction, if they could find a barrister to act for them free of charge in London. This was a miserable business which engaged me through the eighties: you had to scour a haystack of badly photocopied trial transcripts in the hope of finding a legal needle to prick the conscience of the Privy Council. These applications (like executions in Trinidad) took place in Downing Street on Tuesday morning; the barrister had fifteen minutes in which to persuade a panel of three Law Lords that the local courts had taken leave of their senses. These pauper petitions were watched with amazement by barristers from Australia and New Zealand, waiting to resume their lucrative cases concerning oil pipelines and insurance contracts to which the Privy Council devoted most of its time. Yet whenever I visited the Caribbean to urge the abolition of the death penalty because there was no fail-safe system to prevent execution of the innocent, I would receive the explanation: ‘There is here. All our murder convictions are approved by the finest judges in the world, sitting in the Privy Council in Downing Street.’ This was a cargo-cult view of our fifteen-minute flailings before a Privy Council that behaved like a relic of colonialism: between 1980 and 1987 it quashed only one conviction in a capital case. In this period I wrote editorials for the Guardian calling for its abolition: why should the British government make judges available to help the hangmen of the Commonwealth?
I changed my opinion because the Privy Council changed its approach. This curious court lacks a historian to explain its turn towards human rights in the late 1980s. Three influences propelled it in this direction. First, there was the impact of the European Convention on Human Rights, through rulings by the court at Strasbourg critical of the failings of English common law and English judges. These embarrassing but educative decisions provided the intellectual impetus. Then came the disastrous discovery of how justice had miscarried in serious trials: the Birmingham Six and the Guildford Four and all the res
t. This was the second influence on the Law Lords: it ended the era of complacency about police behaviour and the infallibility of the adversary system. Greater attention to human rights offered some safeguards against wrongful convictions. Thirdly, in 1989 came the massacre at Tiananmen Square, ordered by a Chinese government which would, in less than a decade, come to rule Hong Kong. Prior to the massacre, the British had shown not the slightest interest in providing a Bill of Rights for Hong Kong: in its aftermath, a Bill was speedily enacted in the expectation that the Privy Council would provide vigorous legal precedents which might restrain the Chinese after the 1997 handover. Since the Privy Council was now expected to act as a human rights court for Hong Kong, it could scarcely adopt a different posture towards its other client states. They could always abolish its jurisdiction over them if they did not like the legal punches it was no longer prepared to pull – Singapore did so as soon as it criticised Lee Kuan Yew’s pliant judges for jailing his political opponent, Ben Jeyaretnam. As a result of these influences, and stocked by a new generation of judges, by 1990 the Privy Council started to make constitutional guarantees of human rights mean what they said.
The Justice Game Page 12
