‘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.
‘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.’
In regards to the question posed above; it is my submission to put forward an analytical discussion about the significant developments in jurisprudence on fundament 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, the three cases that will be highlighted are Reyes, Hughes and Fox1, in order to show the significant development in jurisprudence on fundamental rights in Commonwealth Caribbean constitutions.
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. In accordance with the Constitution of The Commonwealth of The Bahamas, article 16 speaks to the protection of the right to life. Article 16 (1) authoritatively lay down that ‘no person shall be deprived intentionally of his life save in execution of the sentence of a court in respect of a criminal offence of which he has been convicted. Article 16 (2) states that ‘a person shall not be regarded as having been deprived of his life in contravention of this article if he dies as the result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable-
For the defence of any person from violence or for the defence of property;
In order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
For the purpose of suppressing a riot, insurrection or mutiny; or in order to prevent the commission by that person of a criminal offence, or if he dies as a result of a lawful act of war.
The Privy Council has recently ruled in a trilogy of cases2 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”3.
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 protect4.
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 independent Commonwealth states of the Caribbean and its periphery5 all have written Constitutions all contain a chapter devoted to the protection of human rights, which thus shares in the character of the supreme law of the state6.
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 Parliament7, 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 amended8.
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 fro 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 out9.
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 Another10.
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.
The death penalty has been retained throughout the Commonwealth Caribbean as the mandatory punishment for murder11. 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 matters12.
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 populace13.
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 justice14. 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 justice15.
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 punishment16. Thus the Board referred to the decisions of the Supreme Court of the United States, in Woodson v. North Carolina17 and Roberts v. Louisiana18, 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 Grenada19. 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 cases20.
1 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.
2 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.
3 Constitution of Belize, Pt II, s.7, Constitution of Saint Lucia, s.5 and Constitution of Saint Christopher and Nevis, s.7.
4 Per Lord Bingham in Reyes at para. 43.
5 Antigua and Barbuda, The Bahamas, Belize, Barbados, Dominica, Grenada, Guyana, Jamaica, St. Christopher and Nevis, St. Lucia, St. Vincent and the Grenadines, Trinidad and Tobago.
6 Carnegie, A.R., The Constitutional Protection of Human Rights in the Commonwealth Caribbean. p.152
7 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).
8 Carnegie, A.R., The Constitutional Protection of Human Rights in the Commonwealth Caribbean. p.152
9 Ghany, Hamid A., International Journal of Human Rights; Summer2000, Vol. 4 Issue 2, p30, 14p
10 See S. de Smith and R. Brazier, Constitutional and Administrative Law, (London Penguin 1994), p 169.
11 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.
12 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.
13 R. George Wright, The Death Penalty and the Way We Think Now, Loyola of Los Angeles Law Review [Vol. 33:533]
14 Website: http://www.ijchr.com/Constitution%20&%20Death%20Penalty.htm. Barnett, Lloyd, Changing the Constitution and the Death Penalty.
15 Website: http://www.ijchr.com/Constitution%20&%20Death%20Penalty.htm. Barnett, Lloyd, Changing the Constitution and the Death Penalty.
16 The death penalty and the constitutions of the Commonwealth Caribbean, [2002] P.L. Winter © Sweet & Maxwell and Contributors, p 678
17 428 U.S. 280 (1976).
18 431 U.S. 633 (1977).
19 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).