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 topic question posed above; it is the writer’s 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. 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, and 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.
The first fundamental issue that will be address 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.
“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. The human rights chapter by no means contains all the law relating to human rights. In the event that the provisions relating to human rights rest on the common law Act of Parliament5, 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 amended6. The disadvantageous position, relative to the Constitution, of the common law and legislation applies even more strongly, in the local law, to rights deriving their force from international law7.
Turning to another point, 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 provisions that have saved many laws enacted by colonial legislatures as existing laws8. What is the death penalty? The death penalty has been described as a matter of continuing fascination9. The death penalty is the sentence of death imposed for the offence of murder in most Commonwealth Caribbean 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 murder10. 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 matters11.
Is the death penalty in the Commonwealth Caribbean constitutional? To Put to death or not, that is the question. David Simmons posited that “the law is a mess! It has taken the Judicial Committee of the Privy Council, our highest court, almost six years to confess that their decisions and the attitude of the international human rights bodies have truly placed our countries ‘between a rock and a hard place’”12. O’Brien put forward that in the course of concluding that a mandatory death penalty was unconstitutional the Board expressly accepted a number of fundamental principles which could in the future form the basis for arguing that the circumstances for a condemned prisoner’s detention are relevant to the constitutionality of his execution. These principles are as follows:
First, that interpretation of the constitutional provisions which guarantee fundamental rights must take account of the norms incorporated in the international instruments to which each country subscribed, such as the American Declaration and the International Covenant on Civil and Political Rights. Secondly, that prior to independence the countries of the region were covered by the ECHR, the provisions which were in large measure incorporated in each constitution, and it could not be thought that on independence it was intended to diminish the rights that people had previously enjoyed. Thirdly, that the court is required to consider the substance of the fundamental rights at issue and ensure contemporary protection of those rights in the light of evolving standards of decency that mark progress of a maturing society. Fourth and finally, that the death penalty, even if constitutionally sanctioned, is still subject to the principle of proportionality13.
In retrospect 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. In regards to this discussion, the historical time line to start the process in rendering the death penalty unconstitutional would begin in de Freitas v. Benny 14. Michael de Freitas a.k.a Michael Abdul Malik challenged the carrying of the death penalty on two grounds15. First he argued that capital punishment was per se a cruel and unusual punishment16. Alternatively, he contended that the lapse of time between sentence and execution rendered it unconstitutional to carry out the death sentence17. Their Lordship rejected both arguments and de Freitas was duly executed18.
The Privy Council in de Freitas was headed by the great English judge Lord Diplock who presided in Abbot. In Abbott v. Attorney Gen. of Trinidad & Tobago19, although their Lordships greatly deplored the length of time between sentence and its being carried out on the ground that” [I]t brings the administration of criminal justice into disrepute among law-abiding citizens20”, they dismissed the appeal which was based on the ground that to execute after such a long delay was unconstitutional. They determined that execution of the sentence after six years did not amount to infringement of Abbot’s right to life21.
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 Another22. 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.
Up to this point, the judicial opinion in Riley that delay did not contravene the Constitution appeared reasonable solid. However, in Riley, the two the dissenting judges, Lord Scarman and Lord Brightman, dented the solidity of the judicial opinion. In the concluding words of their dissents, Lord Scarman and Brightman said, “Prolonged delay when it arises from factors outside the control of the condemned man can render a decision to carry out the death sentence of death an inhuman and degrading punishment”23.
On the other hand, the dissenting voices in Riley opened the way for Pratt v. Attorney-General of Jamaica24, this case was decided in November 1993 and the Judicial Committee of the Privy Council revisited the question of delay. A full court of seven judges implied that the law was about to be changed. They held as follows: first, that the execution of the death sentence after unconscionable delay would constitute a contravention of a constitutional provision against cruel and inhuman punishment except where the delay had been the result of fault on the part of the accused25. However, delay attributable to the accused’s exploring legitimate avenues of appeal did not fall within that exception26. Second, that to execute the appellants after holding them in custody and under sentence of death for nearly fourteen years would be inhuman and in breach of Section 17(1) of the Jamaican Constitution. Consequently, the sentences of death should be commuted to life imprisonment27. Finally, Pratt held that if capital punishment is to be retained it must be carried out with all possible expedition28. The immediate result of the decision in Pratt was that all Caribbean jurisdictions, which had prisoners on death row in excess of five years, had to commute their sentences to life imprisonment29.
It should be noted that the Privy Council has recently ruled in a trilogy of cases30 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”31. In Reyes (Patrick) v. R32 the appellant, having been convicted of a Class A murder, was sentenced to death pursuant to section 102 (as amended) of the Criminal Code of Belize. Section 102, as amended, distinguishes between Class A and Class B murders. For Class A murders the death penalty is mandatory and hanging is the method by which the death sentence is carried out33. The appellant sought to challenge the constitutionality of a mandatory death penalty, and the method of carrying the death penalty-by hanging. The appellant argued that a mandatory death penalty infringed both section 7 of the Constitution of Belize, which states that “[n]o person shall be subjected to torture or to inhuman or degrading punishment or other treatment”; and sections 3 and 4 of the Constitution, which protect the right to life34. To determine the issue, 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 punishment35. Thus the Board referred to the decisions of the Supreme Court of the United States, in Woodson v. North Carolina36 and Roberts v. Louisiana37, in which it was held that a state legislation which 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 Commission in petitions emanating from the Bahamas, Jamaica and Grenada38. 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 punishment39. 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 protect40. The Board concluded that to the extent that section 102 of the Criminal Code of Belize denies an offender, who has been sentenced to death for “any murder by shooting”, the opportunity, before sentence is passed, to seek to persuade the court that to condemn him to death would be disproportionate and inappropriate, it is inconsistent with section 7 of the Constitution and is, therefore void41.
In R. v. Hughes (Peter)42 the Board had no hesitation in following its earlier decisions in Reyes in holding section 178 to be unconstitutional to the extent that it required a mandatory death penalty to be imposed on anyone convicted of murder43.
The key difference between the two cases is that before reaching this conclusion the Board had first to overcome the considerable obstacle presented by the saving laws clause contained in paragraph 10 of Schedule 2 to the Constitution of Saint Lucia, which provides that:
Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of section 5 of the Constitution to the extent that the law in question authorise the infliction of any description of punishment that was lawful in Saint Lucia immediately before 1 March 1967 (being the date which Saint Lucia became an associate state).
Although the appellant advanced an alternative challenge to the constitutionality of section 178 on the ground that it violated his right to life under sections 1 and 2 of the Constitution which, unlike section 5, are not limited by paragraph 10, the critical focus of inquiry was on the interpretation and application of paragraph 10. In order to overcome the obstacle presented by paragraph 10 the Board drew a firm distinction between a law which merely authorise and one which actually requires the infliction of the death penalty. The Board accepted that in so far as section 178 authorises the infliction of a form of punishment, the death penalty, which was lawful in Saint Lucia immediately before March 1, 1967, it could not be said to be inconsistent with section 5. The Board did not, however, accept that it was thereby prevented from considering whether the infliction of a mandatory death sentence was unconstitutional. Because paragraph 10 is a derogation from constitutional guarantee it was appropriate, in the Board’s view, to give it a strict and narrow, rather than a broad, construction44. Thus if all that section 178 did was to authorise the death sentence it would be saved by paragraph 10. however, section 178 goes so much further than merely authorising; “it actually requires the infliction of the death penalty on anyone convicted of murder”. The distinction was no mere matter of semantics. It was linked to the principle of proportionality and individualised sentencing.
Accordingly, the Board concluded that to the extent that section 178 requires the infliction of the death penalty in all cases of murder the exception provided by paragraph 10 does not apply. It is, therefore, void by virtue of section 120 of the Constitution, which provides that the Constitution is the Supreme law and that any law which is inconsistent with the Constitution is “to that extent” void45.
What is a saving law clause and is the death penalty unconstitutional as a result of the mechanism of saving law clauses? A “saving law” clause is so called because its effect is expressly to exclude any challenge to the lawfulness of a punishment on the ground that it is inhuman or degrading so long as the punishment was authorised by a law which was in force on the commencement of the constitution46. It should be noted that, these existing laws operate notwithstanding the fact that they may constitute exceptions to the fundamental rights and freedoms guaranteed to the individual in the independence constitutions. In other words, the transition from the colonial state to the independent state has guaranteed to the individual fundamental human rights and freedoms that were not previously enjoyed47. 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 decisions48, 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 existed49.
The Constitutions of Barbados, Belize, Guyana, Jamaica and Trinidad and Tobago all contain provisions clearly designed to exempt pre-existing law from challenge for contravention of the human rights provisions. In Barbados, the saving effect is confined to written law50. In Belize, the saving effect is expressed to continue for five years after independence51. In Guyana and Trinidad and Tobago, the date up to which law is thus saved is not independence, as in the instances of Barbados, Belize and Jamaica, but the date of the post-independence revised Constitution52.
These provisions have had a chequered history in the courts. They have been applied enthusiastically in some cases, such as the Jamaican case of Nasralla v. D.P.P. In another case, the Privy Council itself overlooked the provision and held that a pre-existing law had been repealed by the human rights constitutional provision, but it later recanted this error in Baker v. Reg. But in two very important cases, Thornhill v. A-G53. and Bell v. D.P.P.54, the Privy Council has managed to apply the constitutional provisions protecting human rights with-out being deterred; as the logic of the saving existing law clause had sometimes been held to dictate, by the difficulty of establishing that the right contended for existed prior to the cut-off date55.
Can “the Judicial Committee of the Privy Council . . . prevent the use of the death penalty, as a punishment legally and constitutionally imposed by the State56? The Judicial Committee of the Privy Council has erected many barriers and policies to circumvent the death penalty. However, it should be noted, that 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 out57.
What are the positions of special interests groups, for and against the death penalty? 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 cases58.
Caribbean governments have recently decided that the Privy Council represents the last vestiges of colonialism and should be replaced by a Caribbean court of justice. There are many other features of colonialism that remain in spite of independence. Caribbean politicians pick out the Privy Council because some of its decisions irk them. It held some years ago, in the case of Pratt v Morgan, that defendant who was sentenced to hang had undergone cruel and unusual punishment because they had spent an inordinate length of time on death row awaiting their fate. This was a big step towards abolishing the death penalty, because the administration of justice in the Caribbean is so clogged that it is virtually impossible to hear all appeals in reasonable time. But the murder rate, particularly in Jamaica and Trinidad, is high; there are political rewards in taking the “hang ’em and flog ’em” line. So getting rid of the Privy Council commands support. The big obstacle is that to set up a Caribbean court of justice, each parliament needs to pass the necessary law by a two-thirds majority. This is currently impossible in Trinidad and Tobago, in Antigua and perhaps elsewhere. The need to oppose almost everything governments propose makes consensus impossible59.
However, in order to counter the effects of Pratt, the Government of Barbados has determined that where the common law is deficient there must be legislative amendment to remedy the mischief. Thus applying Kelsen’s60 theory, it is proposed to go to the Grundnorm itself, viz. the Constitution, and so amend it as “to reverse the effects of the Pratt and Morgan line of cases61.
In conclusion, Lloyd Barnett stated that 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 justice62. 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 justice63.
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 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).
6 Carnegie, A.R., The Constitutional Protection of Human Rights in the Commonwealth Caribbean. p.152
7 Carnegie, A.R., The Constitutional Protection of Human Rights in the Commonwealth Caribbean. p.152
8 Ghany, Hamid A.., The Death Penalty, Human Rights and British Law Lords: Judicial Opinion on Delay of Execution in the Commonwealth Caribbean. International Journal of Human Rights; Summer2000, Vol.
4 Issue 2, p30, at p33.
9R. George Wright, The Death Penalty and the Way We Think Now, Loyola of Los Angeles Law Review [Vol. 33:533]
10 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.
11 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.
12 Simmons, David A.C., Conflicts of Law and Policy in the Caribbean-Human Rights and the Enforcement of the Death Penalty-Between a Rock and a Hard Place. This article was presented as a Ball Chair Distinguished Lecture at the Florida State University College of Law on March 31, 1999. Spring 2000 Vol.9:2 p.263 at 280
13 O’Brien, Derek, The death penalty and the constitutions of the Commonwealth Caribbean. [2002] P.L. Winter © Sweet & Maxwell and Contributors. p.678 at p. 685.
14 de Freitas v. Benny. [1976] App. Cas. 239 (P.C. 1975) (appeal taken from Trin. & Tobago)
15 See de Freitas v. Benny. [1976] App. Cas. 239 (P.C. 1975) (appeal taken from Trin. & Tobago), as quoted in Simmons, David A.C., Conflicts of Law and Policy in the Caribbean-Human Rights and the Enforcement of the Death Penalty-Between a Rock and a Hard Place. Spring 2000 Vol.9:2 p.263 at 267
16 See de Freitas v. Benny. [1976] App. Cas. 239 (P.C. 1975) (appeal taken from Trin. & Tobago).at 241, as quoted in Simmons, David A.C., Conflicts of Law and Policy in the Caribbean-Human Rights and the Enforcement of the Death Penalty-Between a Rock and a Hard Place. Spring 2000 Vol.9:2 p.263 at 267
17 See de Freitas v. Benny. [1976] App. Cas. 239 (P.C. 1975) (appeal taken from Trin. & Tobago).at 241, as quoted in Simmons, David A.C., Conflicts of Law and Policy in the Caribbean-Human Rights and the Enforcement of the Death Penalty-Between a Rock and a Hard Place. Spring 2000 Vol.9:2 p.263 at 267
18 See de Freitas v. Benny. [1976] App. Cas. 239 (P.C. 1975) (appeal taken from Trin. & Tobago).at 245-47, Simmons, David A.C., Conflicts of Law and Policy in the Caribbean-Human Rights and the Enforcement of the Death Penalty-Between a Rock and a Hard Place. Spring 2000 Vol.9:2 p.263 at 267
19 Abbott v. Attorney Gen. of Trinidad & Tobago. [1979] 1 WLR 1342 (P.C. 1979) (appeal taken from Trin. & Tobago).
20 Abbott v. Attorney Gen. of Trinidad & Tobago. [1979] 1 WLR 1342 at 1345 (P.C. 1979) (appeal taken from Trin. & Tobago).
21 Abbott v. Attorney Gen. of Trinidad & Tobago. [1979] 1 WLR 1342 at 1348 (P.C. 1979) (appeal taken from Trin. & Tobago).
22 See S. de Smith and R. Brazier, Constitutional and Administrative Law, (London Penguin 1994), p 169.
23 Riley v. Attorney General of Jamaica [1983] 1 App. Cas. 719 at 736 (P.C. 1982) (appeal taken from Jamaica)
24 Pratt v. Attorney General of Jamaica, 43 W.I.R. 340 (P.C. 1993).
25 Pratt v. Attorney General of Jamaica, 43 W.I.R. 340 at 356 (P.C. 1993).
26 Pratt v. Attorney General of Jamaica, 43 W.I.R. 340 at 360 (P.C. 1993).
27 Pratt v. Attorney General of Jamaica, 43 W.I.R. 340 at 360 (P.C. 1993).
28 Simmons, David A.C., Conflicts of Law and Policy in the Caribbean-Human Rights and the Enforcement of the Death Penalty-Between a Rock and a Hard Place. Spring 2000 Vol.9:2 p.263 at 267
29 Jamaica commuted in excess of 150, Trinidad and Tobago 53, and Barbados 9. As quoted in Simmons, David A.C., Conflicts of Law and Policy in the Caribbean-Human Rights and the Enforcement of the Death Penalty-Between a Rock and a Hard Place. Spring 2000 Vol.9:2 p.263 at 270.
30 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.
31 Constitution of Belize, Pt II, s.7, Constitution of Saint Lucia, s.5 and Constitution of Saint Christopher and Nevis, s.7.
32 [2002] W.L.R. 1034
33 O’Brien, Derek, The death penalty and the constitutions of the Commonwealth Caribbean. [2002] P.L. Winter © Sweet & Maxwell and Contributors. p.678.
34 O’Brien, Derek, The death penalty and the constitutions of the Commonwealth Caribbean. [2002] P.L. Winter © Sweet & Maxwell and Contributors. p.678.
35 O’Brien, Derek, The death penalty and the constitutions of the Commonwealth Caribbean, [2002] P.L. Winter © Sweet & Maxwell and Contributors, p 678 at p. 679.
36 428 U.S. 280 (1976).
37 431 U.S. 633 (1977).
38 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).
39 O’Brien, Derek, The death penalty and the constitutions of the Commonwealth Caribbean, [2002] P.L. Winter © Sweet & Maxwell and Contributors, p 678 at p. 680.
40 Per Lord Bingham in Reyes at para. 43.
41 O’Brien, Derek, The death penalty and the constitutions of the Commonwealth Caribbean, [2002] P.L. Winter © Sweet & Maxwell and Contributors, p 678 at p. 680.
42 [2002] 2 W.L.R. 1058
43 O’Brien, Derek, The death penalty and the constitutions of the Commonwealth Caribbean. [2002] P.L. Winter © Sweet & Maxwell and Contributors. p.678 at p. 681.
44 As the Court of Appeal of Botswana had observed in State v. Petrus [1985] L.R.C. (Const) 699, 720 D-F referring to Corey v. Knight (1957) 150 Cal. App. 2d 671 as quoted in O’Brien, Derek, The death penalty and the constitutions of the Commonwealth Caribbean. [2002] P.L. Winter © Sweet & Maxwell and Contributors. p.678 at 681.
45 O’Brien, Derek, The death penalty and the constitutions of the Commonwealth Caribbean. [2002] P.L. Winter © Sweet & Maxwell and Contributors. p.678 at 682.
46 O’Brien, Derek, The death penalty and the constitutions of the Commonwealth Caribbean. [2002] P.L. Winter © Sweet & Maxwell and Contributors. p.678.
47 Ghany, Hamid A.., The Death Penalty, Human Rights and British Law Lords: Judicial Opinion on Delay of Execution in the Commonwealth Caribbean. International Journal of Human Rights; Summer2000, Vol.
4 Issue 2, p30, at p33.
48 See DPP v. Nasralla [1967] 2 A.C. 238 and Maharaj v. Att.-Gen. of Trinidad and Tobago (No.20 [1979] A.C. 385.
49 O’Brien. D, and Carter, V., Constitutional rights, legitimate expectations and the death penalty. [2000] P.L. Winter © Sweet & Maxwell and Contributors, p575.
50 Barbados Constitution, s.26.
51 Belize Constitution, s.21.
52 Guyana Constitution, s. 152 (1)-(2) (subject to a six-month period in which challenge to post-independence law was permitted); Trinidad and Tobago Act 1976-4 (supra, n. 74), s. 18; Trinidad and Tobago Constitution, s. 6; supra, nn. 13, 93, 94. In Guyana, however, quaere whether an unconstitutional post-independence law could be an “existing law” as defined in s 152 (1) (a).As quoted in Carnegie, A.R., The Constitutional Protection of Human Rights in the Commonwealth Caribbean. p.152 at p. 164
53 [1981] A.C. 61.
54 [1985] 2 All E.R. 585
55 Carnegie, A.R., The Constitutional Protection of Human Rights in the Commonwealth Caribbean. p.152 at p. 164
56 Sir Clifford S. Husbands, Speech from the Throne, 22 (February 16, 1999), as quoted in Simmons, David A.C., Conflicts of Law and Policy in the Caribbean-Human Rights and the Enforcement of the Death Penalty-Between a Rock and a Hard Place. Spring 2000 Vol.9:2 p.263 at 264
57 Ghany, Hamid A., International Journal of Human Rights; Summer2000, Vol. 4 Issue 2, p30, 14p
59 Howe, Darcus, A quaint colonial relic –but at least it saves people from being hanged New Statesman; 7/21/2003, Vol. 132 Issue 4647, p13, 1/2p
60 See generally Hans Kelsen, General Theory of Law and State (1961), as quoted in Simmons, David A.C., Conflicts of Law and Policy in the Caribbean-Human Rights and the Enforcement of the Death Penalty-Between a Rock and a Hard Place. Spring 2000 Vol.9:2 p.263 at 284
61 Sir Clifford S. Husbands, Speech from the Throne, 22 (February 16, 1999), as quoted in Simmons, David A.C., Conflicts of Law and Policy in the Caribbean-Human Rights and the Enforcement of the Death Penalty-Between a Rock and a Hard Place. Spring 2000 Vol.9:2 p.263 at 284
62 Website: http://www.ijchr.com/Constitution%20&%20Death%20Penalty.htm. Barnett, Lloyd, Changing the Constitution and the Death Penalty.
63 Website: http://www.ijchr.com/Constitution%20&%20Death%20Penalty.htm. Barnett, Lloyd, Changing the Constitution and the Death Penalty.