200140017
University of the West Indies
LL.B Degree Programme
Topic: ‘Litigation initiated by capital defendants in Caribbean courts (including the Privy Council) over the last decade or so has produced significant developments in jurisprudence on fundamental rights in Commonwealth Caribbean constitutions. Paradoxically however, despite the intensity of litigation, we still know little about the scoop and ambit of the right to life under Caribbean constitutions.’
Subject: Human Rights
Course Number:
Lecturer: Calvin Eversley
Student Number: 200140017
In regards to the question posed above; it is my submission to put forward an analytical discussion about the significant developments in jurisprudence on fundamental rights in the Commonwealth Caribbean constitutions, while highlighting the scoop and ambit of the right to life under the Caribbean constitutions. In the course of this analytical discussion, fundamental issues will be discussed, namely, whether or not the death penalty is unconstitutional in regards to the right to life, whether or not as a result of the constitutional mechanism of saving law clauses the death penalty is constitutional, whether or not the Privy Council is in a position to alter laws that are expressly laid down in the constitution thus going against the grain of constitutional supremacy.
Bill of Rights
The first fundamental issue that will be address in the following discussion comprises of, what is the scoop and ambit of the right to life under the Caribbean Constitutions. It should be noted that every West Indian Constitution contains a Bill of Rights; which is one of the deeply entrenched provisions of the Constitution1 devoted to the protection of human rights, which thus shares in the character of the supreme law of the state2. Mr. Justice Robert Jackson of the US Supreme Court has observed:
The very purpose of a Bill of Rights [is] to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote: they depend on the outcome of no elections3.
It is imperative at this point to determine what are some the fundamental rights in Commonwealth Caribbean constitutions? The Constitution of the Commonwealth of The Bahamas will be used as it mirrors equivalent constitutions of other Commonwealth Caribbean Countries, whereby the constitutions have been modelled as a mechanism for independence. In accordance with the Constitution of the Commonwealth of The Bahamas, the fundamental rights comprises of: Fundamental rights and freedoms of the individual, Protection of right to life, Protection from inhumane treatment, Protection from slavery and forced labour, Protection from arbitrary arrest or detention, Provisions to secure protection of law, Protection for privacy of home and other property, Protection of freedom of conscience, Protection of freedom of expression, Protection of freedom of assembly and association., Protection of freedom of movement,
“The fundamental rights and freedoms listed in our constitutions are in fact versions or a species of some of the basic human rights declared in the famous Universal Declarations, such as the Universal Declaration of Human Rights promulgated by the United Nations in 1948”4.
Inhumane Treatment
Does a five year wait period on death row constitute inhuman treatment? The Board in Pratt had held there would be “strong grounds for believing” that the delay would constitute inhumane or degrading punishment or other treatment and the death sentence would be commuted to life imprisonment5.
In Fisher (No.2) v. Minister of Public Safety and Immigration6, the Privy Council was asked to consider whether an execution, while a petition was outstanding, would infringe the right to life under article 16 of the Bahamian Constitution; or whether an execution in these circumstances would amount to inhuman and degrading treatment or punishment under Article 177.
Death Penalty
What is the death penalty?
The death penalty is a matter of continuing fascination. Critics of the death penalty in contemporary American jurisprudence have claimed the inevitability of caprice and mistake and have pointed to racial and other biases in the imposition of the death penalty. Currently, the death penalty in principle seems acceptable to the Supreme Court and to the general populace8.
The sentence of death is imposed for the offence of murder in most territories, except the British Virgin Islands. It was abolished by England in its overseas territories who were reluctant to do it themselves.
The death penalty has been retained throughout the Commonwealth Caribbean as the mandatory punishment for murder9. The death sentence is carried out by hanging. Those convicted of murder and sentenced to death by judge and jury, can appeal to the local court of appeal and if unsuccessful then to the Judicial Committee of the Privy Council in London. All Commonwealth Caribbean countries, save for Guyana, have retained the Privy Council as the final court of appeal in all criminal and civil matters10.
Constitutionality of the Death Penalty
Is the death penalty in the Commonwealth Caribbean constitutional?
One of the major legal and constitutional issues that the Judicial Committee has had to address is the constitutionality of the death penalty in the Commonwealth Caribbean. This has come about largely because the grant of independence to the former colonies of Great Britain in the Caribbean has included constitutional provision that have saved many laws enacted by the colonial legislatures as existing laws.
By the 1980s, it was clear that the Judicial Committee was beginning to start the process of rendering the death penalty unconstitutional where delay measured in terms of years was a factor. The first sign of such a change manifested itself in their judgment in the Jamaican case of Riley and others v Attorney General of Jamaica and Another11.
In this case, the Judicial Committee divided three to two on the issue of what effect delay ought to have on the carrying out of the sentence of death. The majority (Lords Hailsham, Diplock and Bridge) held the view that delay could not override the effect of the meaning of section 17 of the Jamaican Constitution which reads as follows:
No person shall be subjected to torture or to inhumane or degrading punishment or other treatment.
Nothing contained in or done under the authority of any law shall be held to 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.
Response in regards to the death penalty
The second fundamental issue that will be discussed is how the Caribbean Courts and The Privy Council address their minds to the death penalty. The policy of the Privy Council towards the death penalty in the Commonwealth Caribbean is distant. The policy of the Privy Council towards the death penalty in the Commonwealth Caribbean has changed within a period of twenty years from de Freitas v Benny [1976] AC 239 to Pratt and Another v Attorney General of Jamaica [1993] 43 WIR 340. The key issue that has led to a change in judicial opinion on the issue of the death penalty in the region has been delay in carrying out the sentence. This manifested itself in the 1970s and the 1980s in the context of two opinions of the Privy Council, but was fully accepted by them in the 1990s as the key to determining whether or not the sentence of death ought to be carried out12.
Saving Law Clauses
What effect if any, has the saving law clause impact the fundamental issue of the right to life?
In both Fisher (No.2) and Higgs the Board rejected the expansive interpretation of the relevant constitutional provisions proposed by the council for the appellants. In line with a number of earlier Privy Council decisions13, the Board instead opted for a narrower interpretation, referring to the “existing” and “saving Laws” provisions of the Bahamian Constitution as a reason for refusing to imply new constitutional rights, where none had previously existed14.
Special Interest Groups
Has the death contravenes any fundamental human rights provisions.
What are the attitudes of the Caribbean People towards the death penalty?
Are there any attitudinal trends in regards to the death penalty in the Commonwealth Caribbean?
What are the positions of special interests groups, for and against the death penalty?
It should be noted that the Privy Council has recently ruled in a trilogy of cases15 that a mandatory death penalty for murder is unconstitutional because it offends the guarantee contained in each of the constitutions concerned that: ‘[n]o person shall be subjected to torture or to inhumane or degrading punishment or other treatment”16.
To deny the offender the opportunity, before sentence is passed, to seek to persuade the court that in all the circumstances to condemn him to death would be disproportionate and inappropriate is to treat him as no human being should be treated and thus to deny his basic humanity, the core of the right which section 7[no inhuman or degrading punishment] exists to protect17.
In St. Lucia, all murders carry the mandatory death sentence (by hanging). Hughes made a parallel challenge to Reyes under section 5 of the St Lucia Constitution not to be subjected to inhumane or degrading punishment. The St. Lucia Constitution, however, contains an active partial savings clause (the “torture proviso”), which immunises existing “descriptions of punishment” from constitutional inconsistency challenges (paragraph 10). The saving law clause was read strictly and narrowly (following Pratt v.
The human rights chapter by no means contains all the law relating to human rights. But where provisions relating to human rights rest on the common law Act of Parliament18, they are vulnerable to subsequent legislation which can be controlled by the government in power, unlike the provisions of the Constitution, which cannot be so easily amended19.
In the Reyes case the Board drew upon the growing corpus of jurisprudence from both national courts as well as international human rights authorities which have wrestled with the issue, whether a mandatory death penalty constitutes an inhuman or degrading punishment20. Thus the Board referred to the decisions of the Supreme Court of the United States, in Woodson v. North Carolina21 and Roberts v. Louisiana22, in which it was held that a state legislation whixh provided for a mandatory death penalty was cruel punishment and violated the Eighth Amendment. The Board also referred to the decision of the Supreme Court of India Criminal Code, which imposed a mandatory death penalty on those convicted of a murder committed while the offender was under sentence of imprisonment, violated Article 21 of the Indian Constitution, which protects the right to life. The Board further referred to a number of decisions of the Inter-American Commissiom in petitions emanating from the Bahamas, Jamaica and Grenada23. In each of these cases the Commission held that the imposition of a mandatory death penalty violated the convicted men’s rights under Articles XXV and XXVI and subjected them to cruel and inhuman punishment.
Amnesty International
Amnesty International calls on all governments to abolish the death penalty in law and practice. Pending abolition, the organisation calls on governments to respect international standards restricting the scope of the death penalty, to introduce a moratorium for executions, to commute death sentences and to introduce the most rigorous standards for fair trial in capital cases24.
the three cases that will be highlighted are Reyes, Hughes and Fox25, in order to show the significant development in jurisprudence on fundamental rights in Commonwealth Caribbean constitutions.
A constitution must above all express fundamental principles of justice applicable to all persons. The faithful observe of these principles may sometimes be inconvenient or restrict action which in the short term appears to be desirable. It may even restrain action which is favoured by the majority. But there are inevitable features of constitutional governments which respect their country’s Constitution as a very special instrument. For this reason amendments to achieve short term objectives are dangerous, particularly when it is intended to reverse the decisions of courts which seek to apply fundamental principles of justice26. Lloyd Barnett, also put forward that the hanging amendment proposed by the government is particularly dangerous because it would set a precedent for changing our Constitution to achieve short term objectives and reserve decisions based on the judicial application of principles of fundamental justice27.
1Simeon McIntosh, Caribbean Constitutional Reform: Rethinking the West Indian Polity (2002) pp.226
2 Carnegie, A.R., The Constitutional Protection of Human Rights in the Commonwealth Caribbean. p.152
3 West Virginia Board of Education v. Barnette, 319 U.S. 624, 638; quoted in Stephen Holmes, Passions and Constraint: On the Theory of Liberal Democracy 135 (1997). Also quoted in Simeon McIntosh, Caribbean Constitutional Reform: Rethinking the West Indian Polity (2002) pp.226
4 Simeon McIntosh, Caribbean Constitutional Reform: Rethinking the West Indian Polity (2002) pp.226 at 227-228
5 O’Brien. D, and Carter, V., Constitutional rights, legitimate expectations and the death penalty. [2000] P.L. Winter © Sweet & Maxwell and Contributors, p573.
6 [1999] 2 W.L.R. 349
7 O’Brien. D, and Carter, V., Constitutional rights, legitimate expectations and the death penalty. [2000] P.L. Winter © Sweet & Maxwell and Contributors, p573.
8 R. George Wright, The Death Penalty and the Way We Think Now, Loyola of Los Angeles Law Review [Vol. 33:533]
9 See Hughes and Spence delivered on 2nd April 2001, where the Eastern Caribbean Court of Appeal held that the mandatory imposition of the death penalty was unconstitutional.
10 Website: http://www.penalreform.org/english/dp_overview.htm Saul Lehrfreund MBE Simons Muirhead and Burton .An overview of the Death Penalty in the Commonwealth Caribbean.
11 See S. de Smith and R. Brazier, Constitutional and Administrative Law, (London Penguin 1994), p 169.
12 Ghany, Hamid A., International Journal of Human Rights; Summer2000, Vol. 4 Issue 2, p30, 14p
13 See DPP v. Nasralla [1967] 2 A.C. 238 and Maharaj v. Att.-Gen. of Trinidad and Tobago (No.20 [1979] A.C. 385.
14 O’Brien. D, and Carter, V., Constitutional rights, legitimate expectations and the death penalty. [2000] P.L. Winter © Sweet & Maxwell and Contributors, p575.
15 Reyes (Patrick) v. R. [2002] 2 W.L.R. 1034, R. v. Hughes (Peter) [2002] 2 W.L.R. 1058 and Fox (Berthill) v. R [2002] 2 W.L.R. 1077.
16 Constitution of Belize, Pt II, s.7, Constitution of Saint Lucia, s.5 and Constitution of Saint Christopher and Nevis, s.7.
17 Per Lord Bingham in Reyes at para. 43.
18 See, e.g., the Slavery Abolition Act 1833 (U.K.), s.12, Land Acquisition Act (Barbados cap. 228), ss. 14-21, and the Ombudsman Act (Jamaica).
19 Carnegie, A.R., The Constitutional Protection of Human Rights in the Commonwealth Caribbean. p.152
20 The death penalty and the constitutions of the Commonwealth Caribbean, [2002] P.L. Winter © Sweet & Maxwell and Contributors, p 678
21 428 U.S. 280 (1976).
22 431 U.S. 633 (1977).
23 Edwards v. The Bahamas (Report No. 48/01, April 4, 2001), Downer and Tracey v. Jamaica (Report No. 41/00, April 13, 2000) and Baptiste v. Grenada (Report No. 38/00, April 13, 2000).
25 Reyes (Patrick) v. R. [2002] 2 W.L.R. 1034, R. v. Hughes (Peter) [2002] 2 W.L.R. 1058 and Fox (Berthill) v. R [2002] 2 W.L.R. 1077.
26 Website: http://www.ijchr.com/Constitution%20&%20Death%20Penalty.htm. Barnett, Lloyd, Changing the Constitution and the Death Penalty.
27 Website: http://www.ijchr.com/Constitution%20&%20Death%20Penalty.htm. Barnett, Lloyd, Changing the Constitution and the Death Penalty.