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.
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 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 elections.
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. 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 law.
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 laws. 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 murder. 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 matters.
Is the death penalty in the Commonwealth Caribbean constitutional? The death penalty is constitutional in the Commonwealth Caribbean. But, it is interesting that 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 Another. 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…
(1) No person shall be subjected to torture or to inhumane or degrading punishment or other treatment.
(2) 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 authorizes the infliction of any description of punishment which was lawful in Jamaica immediately before the appointed day.
It should be noted that the Privy Council has recently ruled in a trilogy of cases 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. 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 protect.
Second, is the death penalty unconstitutional as a result of the mechanism of saving law clauses? 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 enjoyed. 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 decisions, 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 existed. 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 law19. In Belize, the saving effect is expressed to continue for five years after independence. 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 Constitution. 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 preexisting 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-G. and Bell v. D.P.P., 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 date. Third, can the Judicial Committee of the Privy Council . . . prevent the use of the death penalty, as a punishment legally and constitutionally imposed by the State? 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  AC 239 to Pratt and Another v Attorney General of Jamaica  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 out. New human rights jurisprudence has been developing since 199327. Michael de Freitas a.k.a Michael Abdul Malik challenged the carrying of the death penalty on two grounds28. First h e argued that capital punishment was per se a cruel and unusual punishment. Alternatively, he contended that the lapse of time between sentence and execution rendered it unconstitutional to carry out the death sentence. Their Lordship rejected both arguments and de Freitas was duly executed. In Abbott v. Attorney Gen. of Trinidad & Tobago, 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 citizens, 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’ right to life.
In Riley v. Attorney General of Jamaica34, the Privy Council held by a majority (3-2) that delays could afford no ground for holding the execution to be a contravention of the relevant Section (17) of the Jamaican Constitution. The dissenting voices in Riley opened the way for Pratt v. Attorney-General of Jamaica, 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 accused. However, delay attributable to the accused’s exploring legitimate avenues of appeal did not fall within that exception. 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 Constitution38. Consequently, the sentences of death should be commuted to life imprisonment39. Finally, Pratt held that if capital punishment is to be retained it must be carried out with all possible expedition.
Response in regards to the death penalty 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 impossible.
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’s 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 cases43. Nonetheless, it must be seriously noted 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 lace.
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 favored 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 justice45. 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 justice.
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 imprisonment. In Fisher (No.2) v. Minister of Public Safety and Immigration48, 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 17. 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 punishment. Thus the Board referred to the decisions of the Supreme Court of the United States, in Woodson v. North Carolina51 and Roberts v. Louisiana 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 Grenada. 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. 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 immunizes existing descriptions of punishment from constitutional inconsistency challenges. The saving law clause was read strictly and narrowly (following Pratt v. 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 organization 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 cases. 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 populace.
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