tribune242 editorial
Nassau, The Bahamas
IN MAY last year the Arbitration Act and the Arbitration (Foreign Arbitral Awards) Act was introduced in an attempt to put the Bahamas in a competitive position for recognition as an international business centre.
The hope was to establish the Bahamas as a dispute resolution centre within five years to settle -- outside of the court system -- both domestic and international matters.
And so now is not the time to even consider abolishing the Judicial Committee of the Privy Council --our highest court of appeal, sitting in London -- which is one institution that -- in addition to the proposed arbitration services -- gives an aura of stability to our local judicial system. If the Bahamas is to be considered a stable jurisdiction to attract international business, the Privy Council is one institution that grounds us in legitimacy. As one Bahamian lawyer put it: "It is one of the most respected courts in the world and brings international currency to our court system."
Together the five Law Lords have more than 100 years of legal experience to draw on. In addition -- removed from local politics, and petty prejudices -- litigants have confidence that their disputes are being treated objectively. This independence and removal from local contamination certainly inspires respect in the system, something that our own courts are lacking.
One would be surprised at what weight the existence of the Privy Council carries when an international business is being considered for relocation to the Bahamas. Businesses not only want a stable government, good communications, and efficient staff, but a sound judicial system. To business leaders this is of paramount importance.
Our local courts are made to look impotent when adversaries can so play the system that one side in the dispute cannot get a hearing to present his complaint.
In a recent international case, a lawyer pointed to what appears to be developing into a serious case of "judge shopping". It would seem that the case can't get off the ground because the judges are being toppled like nine pins. Already three judges have stepped down from the case, and a fourth has been called on recuse himself -- soon there will be no judges left to try the case. From an outsider looking in, it appears that our court system is being made to look impotently foolish.
Of course, there is still the Privy Council. When the local courts fail, the respected arbiter of justice stands solid to pick up the pieces. Bahamians would be foolish to agitate for its removal.
Not only does the Privy Council make available to Bahamians some of the world's most able and experienced judges, it does so at no cost.
In December 2006, the Judicial Committee made history when for the first time in over 170 years it left its permanent London home to hold a five-day sitting in the Bahamas. The five Law Lords were here again for a sitting in 2007 and 2009.
There are those in the legal fraternity who have suggested that the Bahamas give up the Privy Council and throw its lot in with the recently established Caribbean Court of Justice. Established in 2001 and based in Port of Spain, Trinidad and Tobago, this court is in its embryonic stage. It has not been established long enough to have a track record or attract the international recognition that the Privy Council has had for hundreds of years.
If the only reason for opting for this court is to hope that our "Caribbean brothers" will see eye-to-eye with us on capital punishment is indeed to play Russian roulette with this country's future. As explained in this column yesterday, many Caribbean lawyers are also moving away from capital punishment in favour of life imprisonment.
Of course, the weightiest consideration of all is the cost. The Bahamas would have to make a financial contribution to be able to use the services of the Caribbean court.
And the creation of a local court to replace the Privy Council cannot even be considered. It would be financially prohibitive. Already we do not have enough lawyers to staff our present legal institutions.
The Attorney General's office, which is inundated with cases going back years, is seriously understaffed. The courts cannot keep up with the work load that they already have. A country as small as the Bahamas would never be able to pay what would be required to attract our best lawyers from their private practices to sit on a high court bench. And even if we could there are not enough of them to match the calibre and resources of the Law Lords of London.
It is now time for Bahamians to appreciate what they have and start building on already well laid foundations.
September 28, 2011
tribune242 editorial
An International Caribbean Online Log about the news and opinions in the Americas and World. This Caribbean Blog of global reach and appeal is maintained by Bahamian Blogger - Dennis Dames with all readers and subscribers in mind.
Showing posts with label Privy Council Bahamas. Show all posts
Showing posts with label Privy Council Bahamas. Show all posts
Wednesday, September 28, 2011
Monday, July 18, 2011
Jamaica's Supreme Court ruled that certain amendments to Jamaica's Bail Act were unconstitutional... as The Bahamas attempts to craft amendments to its Bail and Criminal Justice Acts to keep serious offenders off the streets, and meet Privy Council standards to justify capital punishment in murder cases
Jamaica Supreme Court against mandatory bail
tribune242 editorial
Nassau, Bahamas
AS THE Bahamas attempts to craft amendments to the Bail and Criminal Justice Acts to keep serious offenders off the streets, and meet Privy Council standards to justify capital punishment in murder cases, Jamaica's Supreme Court ruled Friday that certain amendments to Jamaica's Bail Act were unconstitutional.
Like the Bahamas, serious crime has bedeviled Jamaica for many years, and, again like the Bahamas, Jamaica has attempted to stiffen its laws to protect its citizens.
In July last year, under the amendments, persons charged with serious offences in Jamaica could be denied bail up to 60 days.
However, two Jamaican lawyers, whose clients, charged with murder, were affected by the provision, challenged the amendment's removal of the citizen's right to bail. Of course, in all of these arguments, legal luminaries fail to factor in the law-abiding citizen's right to security and the government's duty to provide that security.
The two Jamaican lawyers also objected to the amendment's interference with the role of the judge to decide who should or should not get bail. It is true that judges should have the right to use their discretion in each case as to how each accused is treated. However, how does a community protect itself against a liberal judiciary that does not seem to appreciate the difficulties of the society in which it exists?
We have only to scan Nassau's murders of the past few weeks to appreciate what it would have meant if we had had a mandatory time in which murder accused, for example, could be held without bail. Several accused who are now dead would still be alive today to face trial. But no, a judge exercised his discretion, a lawyer won his client's case for bail, a gun was fired, and a funeral followed.
The cynic would say that the courts have been saved much time, and their criminal calendar reduced by the criminals taking the law into their own hands, by-passing trial and carrying out executions on the sidewalks. Vigilante justice will send our crime figures through the roof, threaten the country's reputation as a safe tourist resort, and our communities as safe places in which to live. We now have a choice -- mandatory bail for a reasonable period of time so that an accused person can get a fair trial, or let cases slide through the courts as they now do with the criminal deciding the verdict and becoming the executioner. Maybe these lawyers, who are trying to score brownie points with the number of clients they can get out on bail, should stop and think of the safety of their clients, even if they apparently give no thought to the safety of the community.
According to the report in Jamaica's Gleaner "the 60-day period in custody was subject to the right of the person being held to be brought before the court after seven days, and thereafter at 14-day intervals, at which time the court reviews the question of whether the person should continue to be held in custody or bail be considered. The prosecution also had the right to appeal against the granting of bail."
It seemed a reasonable proposal, especially in view of the danger zone in which the average Jamaican was being forced to live because of that country's level of crime. However, Jamaica's Supreme Court in a unanimous vote struck it out as unconstitutional.
The Independent Jamaica Council for Human Rights praised the Supreme Court ruling saying that some human rights are protected by the constitution.
Some years ago Jamaicans were vocal about the Caribbean having its own court to replace the Privy Council, presumably on the very issue of being able to impose capital punishment in murder cases. Now that the Caribbean Court of Justice (CCJ) is a reality -- established on February 14, 2001, coming into force in 2003-- the only countries so far to sign on have been Barbados, Belize and Guyana -- the rest, including Jamaica, are still with the judicial Committee of the Privy Council.
In fact the very issue that brought the Caribbean Court into existence -- the refusal of the Privy Council to allow capital punishment for persons convicted of murder who had spent more than five years in prison -- was in the end what kept Jamaica out.
The Jamaica Labour Party resisted the full powers of the CCJ on the grounds that it was a hanging court.
It's now up to the Bahamas government to bring in amendments that will help this community to curb crime and keep a serious offender behind bars until his case can be heard -- within a reasonable time -- before the courts.
July 18, 2011
tribune242 editorial
tribune242 editorial
Nassau, Bahamas
AS THE Bahamas attempts to craft amendments to the Bail and Criminal Justice Acts to keep serious offenders off the streets, and meet Privy Council standards to justify capital punishment in murder cases, Jamaica's Supreme Court ruled Friday that certain amendments to Jamaica's Bail Act were unconstitutional.
Like the Bahamas, serious crime has bedeviled Jamaica for many years, and, again like the Bahamas, Jamaica has attempted to stiffen its laws to protect its citizens.
In July last year, under the amendments, persons charged with serious offences in Jamaica could be denied bail up to 60 days.
However, two Jamaican lawyers, whose clients, charged with murder, were affected by the provision, challenged the amendment's removal of the citizen's right to bail. Of course, in all of these arguments, legal luminaries fail to factor in the law-abiding citizen's right to security and the government's duty to provide that security.
The two Jamaican lawyers also objected to the amendment's interference with the role of the judge to decide who should or should not get bail. It is true that judges should have the right to use their discretion in each case as to how each accused is treated. However, how does a community protect itself against a liberal judiciary that does not seem to appreciate the difficulties of the society in which it exists?
We have only to scan Nassau's murders of the past few weeks to appreciate what it would have meant if we had had a mandatory time in which murder accused, for example, could be held without bail. Several accused who are now dead would still be alive today to face trial. But no, a judge exercised his discretion, a lawyer won his client's case for bail, a gun was fired, and a funeral followed.
The cynic would say that the courts have been saved much time, and their criminal calendar reduced by the criminals taking the law into their own hands, by-passing trial and carrying out executions on the sidewalks. Vigilante justice will send our crime figures through the roof, threaten the country's reputation as a safe tourist resort, and our communities as safe places in which to live. We now have a choice -- mandatory bail for a reasonable period of time so that an accused person can get a fair trial, or let cases slide through the courts as they now do with the criminal deciding the verdict and becoming the executioner. Maybe these lawyers, who are trying to score brownie points with the number of clients they can get out on bail, should stop and think of the safety of their clients, even if they apparently give no thought to the safety of the community.
According to the report in Jamaica's Gleaner "the 60-day period in custody was subject to the right of the person being held to be brought before the court after seven days, and thereafter at 14-day intervals, at which time the court reviews the question of whether the person should continue to be held in custody or bail be considered. The prosecution also had the right to appeal against the granting of bail."
It seemed a reasonable proposal, especially in view of the danger zone in which the average Jamaican was being forced to live because of that country's level of crime. However, Jamaica's Supreme Court in a unanimous vote struck it out as unconstitutional.
The Independent Jamaica Council for Human Rights praised the Supreme Court ruling saying that some human rights are protected by the constitution.
Some years ago Jamaicans were vocal about the Caribbean having its own court to replace the Privy Council, presumably on the very issue of being able to impose capital punishment in murder cases. Now that the Caribbean Court of Justice (CCJ) is a reality -- established on February 14, 2001, coming into force in 2003-- the only countries so far to sign on have been Barbados, Belize and Guyana -- the rest, including Jamaica, are still with the judicial Committee of the Privy Council.
In fact the very issue that brought the Caribbean Court into existence -- the refusal of the Privy Council to allow capital punishment for persons convicted of murder who had spent more than five years in prison -- was in the end what kept Jamaica out.
The Jamaica Labour Party resisted the full powers of the CCJ on the grounds that it was a hanging court.
It's now up to the Bahamas government to bring in amendments that will help this community to curb crime and keep a serious offender behind bars until his case can be heard -- within a reasonable time -- before the courts.
July 18, 2011
tribune242 editorial
Tuesday, July 5, 2011
...renewed call in some circles for The Bahamas to sever its links with the Privy Council as its final court of appeal
Is it time to abandon the Privy Council?
Decades old debate resurfaces with controversial ruling
BY CANDIA DAMES
Guardian News Editor
thenassauguardian
candia@nasguard.com
Nassau, Bahamas
In recent times, some Bahamians have been intensely engaged in a debate over the June 15 Privy Council ruling in the matter of the Maxo Tido murder case.
The Privy Council held that the circumstances that led to the death of 16-year-old Donnell Conover were not gruesome enough to mandate the death sentence on the convicted murderer.
Conover’s skull was crushed and her body was burnt.
Many people have denounced the reasoning of the court and have expressed open disappointment in the decision.
This has led to a renewed call in some circles for The Bahamas to sever its links with the Privy Council as our final court of appeal.
Since our independence in 1973, the Privy Council has maintained this position as the head of the Bahamian judicial system.
Article 105 (1) of the Constitution of the Commonwealth of The Bahamas states: “Parliament may provide for an appeal to lie from decisions of the Court of Appeal established by Part 2 of this Chapter to the Judicial Committee of Her Majesty’s Privy Council or to such other court as may be prescribed by Parliament under this Article, either as of right or with the leave of the said Court of Appeal, in such cases other than those referred to in Article 104 (2) of this Constitution as may be prescribed by Parliament.”
As noted on its website, the Judicial Committee of the Privy Council originated as the highest court of civil and criminal appeal for the British Empire.
It now fulfills the same purpose for many current and former Commonwealth countries, as well as the United Kingdom’s overseas territories, crown dependencies, and military sovereign base areas.
The judicial experience of the foreign Law Lords has been garnered from their experiences at the bar and on the courts in the United Kingdom.
In recent years, members of the Privy Council have traveled to The Bahamas on the invitation of the former President of the Court of Appeal retired Madam Justice Dame Joan Sawyer and have sat in The Bahamas and have heard and determined cases.
During their 2009 visit, then Attorney General and now Chief Justice Sir Michael Barnett noted that the Judicial Committee of the Privy Council affects “the lives of Bahamians, the region and people in the wider common-law world.”
The Law Lords’ visits have perhaps been the executive’s and the judiciary’s way of familiarizing the Privy Council with some of the customs and norms that we enjoy in The Bahamas.
The compelling question in light of the Maxo Tido decision is whether the Privy Council remains relevant to the evolving customs and norms of Bahamian society.
Through its various decisions, the Privy Council continues to write policy for The Bahamas and other such jurisdictions that send it appeals.
The most contentious have related to the death penalty.
In some quarters in The Bahamas, there is a widely held view that convicted murderers ought to be subject to the death penalty — as stated by the law.
Even with opponents continuing to point out that there is no evidence to show that capital punishment serves as a deterrent to crime, the call for the resumption of hangings more than 11 years after the last one was carried out continues to resound.
However, there are some Bahamians who remain opposed to any form of capital punishment.
No government, in light of the years of debate since the landmark Pratt and Morgan decision in 1993, has thought it appropriate to have a referendum on this vexing question of the death penalty.
In that judgment, the Privy Council ruled that it would be cruel and inhumane to execute someone who has been under the sentence of death for more than five years.
Given the lack of any timelines, the appeals process in many instances since that ruling has dragged well beyond the five-year mark, and many murder convicts have escaped execution.
There is also a push in some legal circles for The Bahamas to withdraw from the Inter American Commission on Human Rights, another avenue for appeal for murder convicts.
In 2006, the Privy Council imposed an even stricter standard for the imposition of the death penalty when it ruled that the mandatory death sentence was unconstitutional.
All the men who at the time were under the sentence of death had to be resentenced, and according to the Office of the Attorney General, a few still await resentencing.
A referendum is perhaps the only way that any government could know with a degree of certainty the views and opinions of the Bahamian people on the issue of the death penalty.
It is generally accepted that the talk shows and the public commentary emanating from certain quarters may not give the impression of a broad based support or opposition to the death penalty.
Continuing support for Privy Council
There are some lawyers, including the recently re-elected President of the Bar Association Ruth Bowe-Darville, who have expressed continuing support for the Privy Council as our final court of appeal.
Bowe-Darville’s recent comments came in the context of discussing civil and commercial matters arising from the use of our country as an international commercial center.
The point that she was advocating is that the Privy Council is still relevant for the certainty of these disputes and to confirm the country’s reputation as a stable judicial center for the determination of major commercial cases.
There are perhaps few lawyers who would disagree with this proposition.
Veteran attorney Maurice Glinton said, “We need the Privy Council.”
“The Privy Council represents competence,” he said.
“It also represents a standard of performance that we are not accustomed to in this jurisdiction...The concern for all of us who believe in the rule of law is that we always have judges who are competent. That minimizes the opportunity for error. No person should die because of judicial oversight.
“And to the extent that we have a further court to hear us, so that they can see finally with more objective eyes, then that speaks to our humanity, that speaks to our civility.”
However, it does not appear that the distinction between commercial matters and criminal matters generates a similar liking to continue with the Privy Council.
Some proponents who wish to sever our links to the Privy Council appear to be in favor of The Bahamas joining the Caribbean Court of Justice (CCJ) as our final court of appeal.
The CCJ, inaugurated in 2005, sits in Port of Spain, Trinidad & Tobago.
As noted by the regional appellate court, there is still some lingering opposition to the CCJ. Surveys in some CARICOM member states, however, have showed as many as 80 percent of the persons surveyed supported the court, the CCJ says on its website.
In some jurisdictions, while there is little opposition to the court in its original jurisdiction, there is more opposition to it in its appellate jurisdiction.
In 2005, then Minister of Foreign Affairs Fred Mitchell announced that The Bahamas will not join the CCJ. And the current administration has also shown no interest in that court.
The Bahamian Constitution allows us to amend the necessary article to sever our ties with the Privy Council.
It is to be noted that in the ill-fated 2002 attempt to amend the constitution that this was not a provision that the Free National Movement government sought to put before the Bahamian people for approval.
At the very crux of this discussion are two questions: whether The Bahamas can have a dual final court of appeal (that is the Privy Council for civil and commercial matters) and the CCJ for criminal matters.
Secondly, whether it is within our national interest, long term and short term, to sever ties with the Privy Council in circumstances where we appear to be opposed to that court’s standing on the issue of capital punishment.
As an aside, the Privy Council does not appear to be that enthused about the demands placed on it by Commonwealth countries.
In 2009, Lord Phillips, the senior Law Lord of the Judicial Committee, expressed the view that the Privy Council was feeling burdened by appeals emanating from jurisdictions like The Bahamas.
In an interview reported in the Financial Times, he was quoted as saying that he was searching for ways to curb the “disproportionate” time he and his fellow senior justices spent hearing legal appeals from independent Commonwealth countries to the Privy Council in London.
Lord Phillips also suggested that “in an ideal world”, Commonwealth countries would stop using the Privy Council and set up their own final courts of appeal.
Clarifying death penalty cases
The European Court of Human Rights has taken a position on the death penalty, which it appears is a universal approach and therefore the further question that has to be asked is whether The Bahamas wishes to be out of step with a universally recognized principle of the sanctity of life.
The question of the sanctity of life is one which is embodied in a religious concept which stems from the Golden Rule — that you ought to do unto others as you wish others to do to you.
The Catholic denomination has always been strongly opposed to capital punishment based on religious reasons. Some other denominations have generally been pro-capital punishment and this is perhaps in line with the recent comments made by a group of pastors.
The pastors — among them former crime commission chairman Bishop Simeon Hall — expressed outrage at the recent Maxo Tido ruling.
They said in a statement, “This ruling of the Law Lords is more than a ruling. It is a message to all would be murderers, and the message is: ‘As long as you can benchmark your murder to the level of brutality of murders like that of Donnell Conover’s, you can fully expect to be spared the death penalty’.”
After the Maxo Tido ruling, Hall said it is time for The Bahamas to abandon the Privy Council.
“The ruling by the Privy Council raises serious questions as to what is happening,” Hall said.
“I understand to some degree the Privy Council has the last word, but certainly my big problem I’m wrestling with is what is the justice system saying to families of victims of murder, and then to persons who do the murder?
“It seems that the whole system now is lending its way to criminality. For the Law Lords to conclude that this was a bad murder but it’s not counted as the worst of the worst, I think it’s time for us to cry shame on the justice system.”
Even among church leaders, there exists a divergence of views on this question of capital punishment.
There is no doubt that the death penalty issue is an emotive one.
Some observers argue that the balanced approach, however, requires not just an appreciation and sympathy toward the families of the victims of murder, but there ought also to be a willingness to understand and to sympathize with the anguish that will be felt by the murderers’ families.
Prime Minister Hubert Ingraham recently announced that he intends to table before Parliament a bill to address the issue of the death penalty.
That bill will set the criteria of murders that require the death penalty and those that may require life sentences or lesser sentences.
This bill is also likely to address the factors that the court must take into account when it exercises its discretion when sentencing a convicted murderer.
The need for clarity in the law emanated from the 2006 Forrester and Bowe ruling handed down by the Privy Council outlawing the mandatory death sentence.
Retired Supreme Court Justice Jeanne Thompson noted in a recent letter to the editor that this was a clear signal to the legislature that it was necessary to put in place guidelines for judges to use in sentencing convicted murderers.
Indeed, Dame Joan, then president of the Court of Appeal about four years ago, called upon the government to put in place the necessary guidelines, Justice Thompson noted.
“However, nothing was done and judges were obliged to use their discretion with the aid of attorneys, social workers and psychiatrists to decide upon appropriate sentences,” she wrote.
“This created a lacuna in our law and has allowed the Privy Council to use its own principles in adjudging what is an appropriate punishment for persons convicted of murder in The Bahamas.
“Ideally we should have followed the example of the United Kingdom, which, prior to the complete abolition of the death penalty, divided murder into capital and non-capital.”
In the recent Tido ruling, the Privy Council repeated the kinds of murders that warrant the death penalty.
The Law Lords said the worst cases of murder that may call for the imposition of capital punishment would be those in which the murder is carefully planned and carried out in furtherance of another crime, such as robbery, rape, drug smuggling, human smuggling, drug wars, gang enforcement policies, kidnapping, preventing witnesses from testifying, serial killers, as well as the killing of innocents “for the gratification of base desires”.
“The legislation which will be tabled in Parliament is a step in the right direction, but it is very, very late,” said Damian Gomez, a prominent defense attorney, who also pointed to Dame Joan’s call for legislation to be passed to bring some certainty in the area of sentencing.
“Her calls for statutory clarification fell on deaf ears for quite a while, and we’re paying the price for it.”
Clearly, there has been some time that has lagged between the 2006 decision and the formulation of clear guidelines to assist the court in its determination on this issue.
One has to wait to see the contents of the bill to fully assess its suitability and whether in fact it will answer this question of the death penalty once and for all.
One jurist told us that it is likely that the bill if passed by Parliament may lead to constitutional challenges which may further delay but will hopefully make certain the law in The Bahamas on the issue of the death penalty.
Other details of the bill are uncertain at this time.
What is clear though is the question of the Privy Council as the final court of appeal for The Bahamas remains a controversial one — not unlike the question of the death penalty itself.
Jul 04, 2011
thenassauguardian
Decades old debate resurfaces with controversial ruling
BY CANDIA DAMES
Guardian News Editor
thenassauguardian
candia@nasguard.com
Nassau, Bahamas
In recent times, some Bahamians have been intensely engaged in a debate over the June 15 Privy Council ruling in the matter of the Maxo Tido murder case.
The Privy Council held that the circumstances that led to the death of 16-year-old Donnell Conover were not gruesome enough to mandate the death sentence on the convicted murderer.
Conover’s skull was crushed and her body was burnt.
Many people have denounced the reasoning of the court and have expressed open disappointment in the decision.
This has led to a renewed call in some circles for The Bahamas to sever its links with the Privy Council as our final court of appeal.
Since our independence in 1973, the Privy Council has maintained this position as the head of the Bahamian judicial system.
Article 105 (1) of the Constitution of the Commonwealth of The Bahamas states: “Parliament may provide for an appeal to lie from decisions of the Court of Appeal established by Part 2 of this Chapter to the Judicial Committee of Her Majesty’s Privy Council or to such other court as may be prescribed by Parliament under this Article, either as of right or with the leave of the said Court of Appeal, in such cases other than those referred to in Article 104 (2) of this Constitution as may be prescribed by Parliament.”
As noted on its website, the Judicial Committee of the Privy Council originated as the highest court of civil and criminal appeal for the British Empire.
It now fulfills the same purpose for many current and former Commonwealth countries, as well as the United Kingdom’s overseas territories, crown dependencies, and military sovereign base areas.
The judicial experience of the foreign Law Lords has been garnered from their experiences at the bar and on the courts in the United Kingdom.
In recent years, members of the Privy Council have traveled to The Bahamas on the invitation of the former President of the Court of Appeal retired Madam Justice Dame Joan Sawyer and have sat in The Bahamas and have heard and determined cases.
During their 2009 visit, then Attorney General and now Chief Justice Sir Michael Barnett noted that the Judicial Committee of the Privy Council affects “the lives of Bahamians, the region and people in the wider common-law world.”
The Law Lords’ visits have perhaps been the executive’s and the judiciary’s way of familiarizing the Privy Council with some of the customs and norms that we enjoy in The Bahamas.
The compelling question in light of the Maxo Tido decision is whether the Privy Council remains relevant to the evolving customs and norms of Bahamian society.
Through its various decisions, the Privy Council continues to write policy for The Bahamas and other such jurisdictions that send it appeals.
The most contentious have related to the death penalty.
In some quarters in The Bahamas, there is a widely held view that convicted murderers ought to be subject to the death penalty — as stated by the law.
Even with opponents continuing to point out that there is no evidence to show that capital punishment serves as a deterrent to crime, the call for the resumption of hangings more than 11 years after the last one was carried out continues to resound.
However, there are some Bahamians who remain opposed to any form of capital punishment.
No government, in light of the years of debate since the landmark Pratt and Morgan decision in 1993, has thought it appropriate to have a referendum on this vexing question of the death penalty.
In that judgment, the Privy Council ruled that it would be cruel and inhumane to execute someone who has been under the sentence of death for more than five years.
Given the lack of any timelines, the appeals process in many instances since that ruling has dragged well beyond the five-year mark, and many murder convicts have escaped execution.
There is also a push in some legal circles for The Bahamas to withdraw from the Inter American Commission on Human Rights, another avenue for appeal for murder convicts.
In 2006, the Privy Council imposed an even stricter standard for the imposition of the death penalty when it ruled that the mandatory death sentence was unconstitutional.
All the men who at the time were under the sentence of death had to be resentenced, and according to the Office of the Attorney General, a few still await resentencing.
A referendum is perhaps the only way that any government could know with a degree of certainty the views and opinions of the Bahamian people on the issue of the death penalty.
It is generally accepted that the talk shows and the public commentary emanating from certain quarters may not give the impression of a broad based support or opposition to the death penalty.
Continuing support for Privy Council
There are some lawyers, including the recently re-elected President of the Bar Association Ruth Bowe-Darville, who have expressed continuing support for the Privy Council as our final court of appeal.
Bowe-Darville’s recent comments came in the context of discussing civil and commercial matters arising from the use of our country as an international commercial center.
The point that she was advocating is that the Privy Council is still relevant for the certainty of these disputes and to confirm the country’s reputation as a stable judicial center for the determination of major commercial cases.
There are perhaps few lawyers who would disagree with this proposition.
Veteran attorney Maurice Glinton said, “We need the Privy Council.”
“The Privy Council represents competence,” he said.
“It also represents a standard of performance that we are not accustomed to in this jurisdiction...The concern for all of us who believe in the rule of law is that we always have judges who are competent. That minimizes the opportunity for error. No person should die because of judicial oversight.
“And to the extent that we have a further court to hear us, so that they can see finally with more objective eyes, then that speaks to our humanity, that speaks to our civility.”
However, it does not appear that the distinction between commercial matters and criminal matters generates a similar liking to continue with the Privy Council.
Some proponents who wish to sever our links to the Privy Council appear to be in favor of The Bahamas joining the Caribbean Court of Justice (CCJ) as our final court of appeal.
The CCJ, inaugurated in 2005, sits in Port of Spain, Trinidad & Tobago.
As noted by the regional appellate court, there is still some lingering opposition to the CCJ. Surveys in some CARICOM member states, however, have showed as many as 80 percent of the persons surveyed supported the court, the CCJ says on its website.
In some jurisdictions, while there is little opposition to the court in its original jurisdiction, there is more opposition to it in its appellate jurisdiction.
In 2005, then Minister of Foreign Affairs Fred Mitchell announced that The Bahamas will not join the CCJ. And the current administration has also shown no interest in that court.
The Bahamian Constitution allows us to amend the necessary article to sever our ties with the Privy Council.
It is to be noted that in the ill-fated 2002 attempt to amend the constitution that this was not a provision that the Free National Movement government sought to put before the Bahamian people for approval.
At the very crux of this discussion are two questions: whether The Bahamas can have a dual final court of appeal (that is the Privy Council for civil and commercial matters) and the CCJ for criminal matters.
Secondly, whether it is within our national interest, long term and short term, to sever ties with the Privy Council in circumstances where we appear to be opposed to that court’s standing on the issue of capital punishment.
As an aside, the Privy Council does not appear to be that enthused about the demands placed on it by Commonwealth countries.
In 2009, Lord Phillips, the senior Law Lord of the Judicial Committee, expressed the view that the Privy Council was feeling burdened by appeals emanating from jurisdictions like The Bahamas.
In an interview reported in the Financial Times, he was quoted as saying that he was searching for ways to curb the “disproportionate” time he and his fellow senior justices spent hearing legal appeals from independent Commonwealth countries to the Privy Council in London.
Lord Phillips also suggested that “in an ideal world”, Commonwealth countries would stop using the Privy Council and set up their own final courts of appeal.
Clarifying death penalty cases
The European Court of Human Rights has taken a position on the death penalty, which it appears is a universal approach and therefore the further question that has to be asked is whether The Bahamas wishes to be out of step with a universally recognized principle of the sanctity of life.
The question of the sanctity of life is one which is embodied in a religious concept which stems from the Golden Rule — that you ought to do unto others as you wish others to do to you.
The Catholic denomination has always been strongly opposed to capital punishment based on religious reasons. Some other denominations have generally been pro-capital punishment and this is perhaps in line with the recent comments made by a group of pastors.
The pastors — among them former crime commission chairman Bishop Simeon Hall — expressed outrage at the recent Maxo Tido ruling.
They said in a statement, “This ruling of the Law Lords is more than a ruling. It is a message to all would be murderers, and the message is: ‘As long as you can benchmark your murder to the level of brutality of murders like that of Donnell Conover’s, you can fully expect to be spared the death penalty’.”
After the Maxo Tido ruling, Hall said it is time for The Bahamas to abandon the Privy Council.
“The ruling by the Privy Council raises serious questions as to what is happening,” Hall said.
“I understand to some degree the Privy Council has the last word, but certainly my big problem I’m wrestling with is what is the justice system saying to families of victims of murder, and then to persons who do the murder?
“It seems that the whole system now is lending its way to criminality. For the Law Lords to conclude that this was a bad murder but it’s not counted as the worst of the worst, I think it’s time for us to cry shame on the justice system.”
Even among church leaders, there exists a divergence of views on this question of capital punishment.
There is no doubt that the death penalty issue is an emotive one.
Some observers argue that the balanced approach, however, requires not just an appreciation and sympathy toward the families of the victims of murder, but there ought also to be a willingness to understand and to sympathize with the anguish that will be felt by the murderers’ families.
Prime Minister Hubert Ingraham recently announced that he intends to table before Parliament a bill to address the issue of the death penalty.
That bill will set the criteria of murders that require the death penalty and those that may require life sentences or lesser sentences.
This bill is also likely to address the factors that the court must take into account when it exercises its discretion when sentencing a convicted murderer.
The need for clarity in the law emanated from the 2006 Forrester and Bowe ruling handed down by the Privy Council outlawing the mandatory death sentence.
Retired Supreme Court Justice Jeanne Thompson noted in a recent letter to the editor that this was a clear signal to the legislature that it was necessary to put in place guidelines for judges to use in sentencing convicted murderers.
Indeed, Dame Joan, then president of the Court of Appeal about four years ago, called upon the government to put in place the necessary guidelines, Justice Thompson noted.
“However, nothing was done and judges were obliged to use their discretion with the aid of attorneys, social workers and psychiatrists to decide upon appropriate sentences,” she wrote.
“This created a lacuna in our law and has allowed the Privy Council to use its own principles in adjudging what is an appropriate punishment for persons convicted of murder in The Bahamas.
“Ideally we should have followed the example of the United Kingdom, which, prior to the complete abolition of the death penalty, divided murder into capital and non-capital.”
In the recent Tido ruling, the Privy Council repeated the kinds of murders that warrant the death penalty.
The Law Lords said the worst cases of murder that may call for the imposition of capital punishment would be those in which the murder is carefully planned and carried out in furtherance of another crime, such as robbery, rape, drug smuggling, human smuggling, drug wars, gang enforcement policies, kidnapping, preventing witnesses from testifying, serial killers, as well as the killing of innocents “for the gratification of base desires”.
“The legislation which will be tabled in Parliament is a step in the right direction, but it is very, very late,” said Damian Gomez, a prominent defense attorney, who also pointed to Dame Joan’s call for legislation to be passed to bring some certainty in the area of sentencing.
“Her calls for statutory clarification fell on deaf ears for quite a while, and we’re paying the price for it.”
Clearly, there has been some time that has lagged between the 2006 decision and the formulation of clear guidelines to assist the court in its determination on this issue.
One has to wait to see the contents of the bill to fully assess its suitability and whether in fact it will answer this question of the death penalty once and for all.
One jurist told us that it is likely that the bill if passed by Parliament may lead to constitutional challenges which may further delay but will hopefully make certain the law in The Bahamas on the issue of the death penalty.
Other details of the bill are uncertain at this time.
What is clear though is the question of the Privy Council as the final court of appeal for The Bahamas remains a controversial one — not unlike the question of the death penalty itself.
Jul 04, 2011
thenassauguardian
Tuesday, June 21, 2011
Bishop Simeon Hall: The Privy Council’s recent ruling on the death penalty in the case of Maxo Tido has unwittingly said to criminals: ‘you can get away with your next crime’... it is clear that if families of murder victims are to ever have justice, The Bahamas must abandon the Privy Council...
'Abandon the Privy Council'
CANDIA DAMES
NG News Editor
thenassauguardian
candia@nasguard.com
Nassau, Bahamas
The Privy Council’s recent ruling on the death penalty in the case of Maxo Tido has unwittingly said to criminals ‘you can get away with your next crime’, according to Bishop Simeon Hall, who chaired the government-appointed National Advisory Council on Crime.
Hall said it is clear that if families of murder victims are to ever have justice, The Bahamas must abandon the Privy Council, at least for murder appeals.
One of the recommendations the Crime Council made to the Ingraham administration is to resume capital punishment.
But various Privy Council decisions over the years have set such a strict standard for the imposition of the death penalty, the government has been unable to carry out the law in this regard.
Tido was convicted of the 2002 murder of Donnell Conover. The 16-year-old was found with her skull crushed, and her body burnt.
The Privy Council said while Conover’s murder was “dreadful” and “appalling” it did not fall into the category for the worst of the worst murders and therefore the death penalty ought not apply.
“The ruling by the Privy Council raises serious questions as to what is happening,” Hall said.
“I understand to some degree the Privy Council has the last word, but certainly my big problem I’m wrestling with is what is the justice system saying to families of victims of murder, and then to persons who do the murder?
“It seems that the whole system now is lending its way to criminality. For the law lords to conclude that this was a bad murder but it’s not counted as the worst of the worst, I think it’s time for us to cry shame on the justice system.”
Conover’s mother, Laverne, who recently met with Bishop Hall on the matter, said the ruling re-opened an old wound.
“The murderers have all the rights,” said Mrs. Conover, who added that she learnt of the ruling last week via the evening television newscast.
She told The Nassau Guardian that her daughter was so mutilated she was only able to identify her by her nose.
“What I would like to know is what is the worst of the worst because murder is murder. If this is not the worst of the worst, could somebody explain to me what is the worst of the worst?”
Conover said the murder tore her whole family apart — she and her husband subsequently divorced, one of her sons is on the run from the law, and the other children have had their own emotional challenges.
She said life has not been the same since.
“When I reached the police station and they told me, I was just not myself anymore, especially when I had to go to the morgue and saw what I saw,” Conover said.
“What I saw at the morgue, I don’t know what that was because really it was not my daughter.
“I don’t know what that was because a dog’s head wouldn’t have looked the way her head looked. She had no face, one big bone sticking up, they burnt her over her body.
”How do they expect me as a mother to deal with this and to know Maxo is in prison living?”
While the Privy Council quashed Tido’s death sentence, it upheld his murder conviction and ordered that he be re-sentenced.
In 2009, the government was preparing to read a death warrant to him.
Hall pointed out that a study by Police Sergeant Chaswell Hanna noted that in a five-year period when 349 murders were recorded in The Bahamas, there were only 10 murder convictions and two death sentences issued.
“Last year was a record number of murders and I understand that we had no more than two or three convictions,” Hall said. “This disparity between criminal behavior and the justice system, is it the police, is it the lawyers, is it the justice system?”
He said the law lords of the Privy Council are clearly out of touch with what is happening in The Bahamas.
“How is this family to swallow this latest ruling?” he asked.
“...It is very difficult to remain philosophical on murder now. The criminals seem to be getting the better end of the stick and families of murder victims seem to be left — as this family — totally disintegrated.”
Hall noted that the level of violent crime has worsened in the last couple years.
“It is true that part of the problem is in fact the social culture we face as a community, but at the same time I think Parliament and the lawmakers must take draconian measures to face this nightmare we are presently confronted with,” he said.
“It is true that the current minister of national security has adopted half of the things we suggested, but it seems to be getting worse. And you feel embarrassed that you served on this thing and [crime] seems to be getting worse.”
Jun 20, 2011
thenassauguardian
CANDIA DAMES
NG News Editor
thenassauguardian
candia@nasguard.com
Nassau, Bahamas
The Privy Council’s recent ruling on the death penalty in the case of Maxo Tido has unwittingly said to criminals ‘you can get away with your next crime’, according to Bishop Simeon Hall, who chaired the government-appointed National Advisory Council on Crime.
Hall said it is clear that if families of murder victims are to ever have justice, The Bahamas must abandon the Privy Council, at least for murder appeals.
One of the recommendations the Crime Council made to the Ingraham administration is to resume capital punishment.
But various Privy Council decisions over the years have set such a strict standard for the imposition of the death penalty, the government has been unable to carry out the law in this regard.
Tido was convicted of the 2002 murder of Donnell Conover. The 16-year-old was found with her skull crushed, and her body burnt.
The Privy Council said while Conover’s murder was “dreadful” and “appalling” it did not fall into the category for the worst of the worst murders and therefore the death penalty ought not apply.
“The ruling by the Privy Council raises serious questions as to what is happening,” Hall said.
“I understand to some degree the Privy Council has the last word, but certainly my big problem I’m wrestling with is what is the justice system saying to families of victims of murder, and then to persons who do the murder?
“It seems that the whole system now is lending its way to criminality. For the law lords to conclude that this was a bad murder but it’s not counted as the worst of the worst, I think it’s time for us to cry shame on the justice system.”
Conover’s mother, Laverne, who recently met with Bishop Hall on the matter, said the ruling re-opened an old wound.
“The murderers have all the rights,” said Mrs. Conover, who added that she learnt of the ruling last week via the evening television newscast.
She told The Nassau Guardian that her daughter was so mutilated she was only able to identify her by her nose.
“What I would like to know is what is the worst of the worst because murder is murder. If this is not the worst of the worst, could somebody explain to me what is the worst of the worst?”
Conover said the murder tore her whole family apart — she and her husband subsequently divorced, one of her sons is on the run from the law, and the other children have had their own emotional challenges.
She said life has not been the same since.
“When I reached the police station and they told me, I was just not myself anymore, especially when I had to go to the morgue and saw what I saw,” Conover said.
“What I saw at the morgue, I don’t know what that was because really it was not my daughter.
“I don’t know what that was because a dog’s head wouldn’t have looked the way her head looked. She had no face, one big bone sticking up, they burnt her over her body.
”How do they expect me as a mother to deal with this and to know Maxo is in prison living?”
While the Privy Council quashed Tido’s death sentence, it upheld his murder conviction and ordered that he be re-sentenced.
In 2009, the government was preparing to read a death warrant to him.
Hall pointed out that a study by Police Sergeant Chaswell Hanna noted that in a five-year period when 349 murders were recorded in The Bahamas, there were only 10 murder convictions and two death sentences issued.
“Last year was a record number of murders and I understand that we had no more than two or three convictions,” Hall said. “This disparity between criminal behavior and the justice system, is it the police, is it the lawyers, is it the justice system?”
He said the law lords of the Privy Council are clearly out of touch with what is happening in The Bahamas.
“How is this family to swallow this latest ruling?” he asked.
“...It is very difficult to remain philosophical on murder now. The criminals seem to be getting the better end of the stick and families of murder victims seem to be left — as this family — totally disintegrated.”
Hall noted that the level of violent crime has worsened in the last couple years.
“It is true that part of the problem is in fact the social culture we face as a community, but at the same time I think Parliament and the lawmakers must take draconian measures to face this nightmare we are presently confronted with,” he said.
“It is true that the current minister of national security has adopted half of the things we suggested, but it seems to be getting worse. And you feel embarrassed that you served on this thing and [crime] seems to be getting worse.”
Jun 20, 2011
thenassauguardian
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