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| Sean McWeeney, QC |
Death Penalty 'Unlikely' Without Legal Challenges
By RASHAD ROLLE
Tribune 242 Staff Reporter
rrolle@tribunemedia.net
Nassau, The Bahamas
CONSTITUTIONAL Commission Chairman Sean McWeeney said recent comments about the end of hanging by Court of Appeal justices reflects opposition the London-based Privy Council has to the death penalty.
It
reflects, he said, the unlikelihood that the death penalty will be
carried out unless substantial changes are made to the legal and
judicial system of this country.
Court
of Appeal Justices on Wednesday suggested that “hanging is over” as
they quashed the death sentence of Anthony Clarke Sr, who was convicted
last year of killing his friend Aleus Tilus as part of a contract
killing in 2011.
The
justices’ statements raised concern among some yesterday who wondered
if it set a new precedent for the court as it relates to dealing with
death penalty appeals.
When
contacted for comment yesterday, Mr McWeeney, a Queen’s Counsel,
explained: “The statement (by the justices) was made off the cuff and
emerged during the course of give-and-take with counsel. This was not
some formal, deeply considered pronouncement. They were correctly
characterising the current state of play given the position of the Privy
Council.
“Their
statements are not fundamentally different from what we in the
Constitutional Commission have been saying based on jurisprudence coming
out of the Privy Council. There is essentially a philosophical
objective guiding this jurisprudence. The Privy Council is
philosophically opposed to the death penalty and have curtailed the law
to achieve objectives in line with its beliefs. They’ve put a series of
obstacles in the way to impede and quite frankly prevent the death
penalty from being meted out.”
The mandatory death sentence was changed in 2006 after the Privy Council ruled it was unconstitutional.
In
2011, after a ruling from the Privy Council, the Ingraham
administration amended the death penalty law to specify the “worst of
the worst” murders which would warrant execution.
A
person who kills a police or defence force officer, member of the
Departments of Customs or Immigration, judiciary or prison services
would be eligible for a death sentence. A person would also be eligible
for death once convicted of murdering someone during a rape, robbery,
kidnapping or act of terrorism.
In Wednesday’s case, the Court of Appeal suggested there was never going to be a “worst of the worst” case.
“I
sympathise with you because there’s never going to be a worst of the
worst, because you’re never going to reach that threshold given that
there will always be a worse case to follow,” said Court of Appeal
President Justice Anita Allen.
On
this issue, Mr McWeeney said: “It’s quite clear (the Privy Council) has
been very disingenuous characterising what is the worst of the worst.
“It
all points to the fact that the Privy Council has demonstrated
consistently that it will not hesitate to find some pretext, some
reason, however legally spurious, to achieve their philosophical
objective. Against that, Caribbean countries with similar constitutional
systems as ours have been looking for ways to overcome this resistance.
One thought was to replace the Privy Council with the Caribbean Court
of Justice. However, nothing in that system exists to give cause for
optimism that their position would be any different from the Privy
Council. There have been judgments from that court to lead one to
believe their position would be no different. So it’s not going to
happen just because you get rid of the Privy Council and put in place
the Caribbean Court of Justice.
“That
leaves only one possibility and that is to think in terms of amending
the Constitution in a way that would tie the hands of the Privy
Council,” he added. “Remove the very large discretion the Privy Council
has in terms of deciding the circumstances which constitutes ‘worst of
the worst’. A solution is to (put in the Constitution) the criteria that
would have to be applied on a mandatory basis by the Privy Council,
which would define what is the worst of the worst cases. Of course, this
could only take place after holding a referendum.”
Mr McWeeney said a draft has been created to amend the Constitution in order to define which crimes must be punishable by death.
“That
draft is not something that they are dealing with right now because the
focus is on gender equality,” he said, referring to next year’s
expected constitutional referendum. “Political parties would have to
decide where they want that issue to stand in the queue. It’s certainly
not in the cards for this round (of proposed constitutional
amendments).”
November 28, 2014
