The Death Penalty, Death Penalty Appeals and the London-based Privy Council in The Bahamas

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

Tribune242

Courts -- a nation's sovereignty

Tribune242.com editorial:


MANY BAHAMIANS thought that by ridding themselves of the Privy Council as this country's last court of appeal our judicial system could retain the death penalty. Although the Privy Council is still our final court of appeal, and although a large number of Bahamians still favour its retention, it is quickly losing its attraction for those who want to retain the gallows for convicted murderers.

"Hang 'em high!" is still the angry reaction in this country as Bahamians defend capital punishment as the final solution to the growing murder count.

However, it now seems that the Privy Council is not the only stumbling block to retaining the death penalty.

According to Tuesday's Gleaner of Jamaica, the European Union is starting to show its mighty muscles by threatening to withdraw grant funds if Jamaica does not employ an additional Supreme Court judge.

According to The Gleaner Jamaica's Justice Minister Dorothy Lightbourne explained that she had to "follow the dictate of the powerful bloc of countries in order to benefit from grant funds they have provided."

The conditions, the Justice Minister told Parliament last week during the sitting of the joint select committee, have to do with fighting corruption and to improve the justice system. "They have said we should increase judges and we have brought on one judge."

Drawing attention to the notation in the 2010/2011 Estimates of Expenditure, which read: "One additional judge has already been hired to meet the European Union condition," MP Dr Morais Guy commented:

"I would be happy if I am told that this is just a wrong choice of terminology because I cannot see how they are imposing conditions on the sovereign country of Jamaica."

He was told that the money granted by the EU was going towards improving Jamaica's justice system. Guidelines were set out as a condition of the grant. An addition of judges was one of the conditions if funds were to be forthcoming.

And so as the EU could threaten to withhold grant funds over a judge, it could also threaten to withdraw much needed funds if the Bahamas insisted on retaining the death penalty in its legal system.

As a matter of fact this threat was seriously discussed in our private office several years ago by a visiting European ambassador paying a courtesy call on his annual tour of duty.

We believe that this discussion took place around 1993 when the hot topic on the street at that time -- and of much concern to Bahamians -- was the Privy Council's decision that two Bahamians could not be hanged because they had been languishing on death row for more than five years. To hang them after five years would amount to inhumane treatment, the Council ruled. This meant that the sentences of all those then on death row for five years or more had their sentences automatically commuted to life imprisonment. It also set out a time frame for the future.

On being asked public opinion on the abolition of the death penalty in the Bahamas, we explained that we believed that Prime Minister Ingraham was an abolitionist, but that most Bahamians were strongly for its retention. However, if capital punishment remained on the statute books, the Prime Minister would uphold the law. It was then that the ambassador threw down the gauntlet.

And what would happen, he asked, if the EU withdrew all grants from the Bahamas unless capital punishment were abolished?

We replied that the Bahamas would then have to face a serious issue. However, we believed it would be considered a bullying tactic by a powerful European bloc against a small, defenceless nation, especially with the mighty US next door, where many states still used the electric chair to get rid of its murderers. We suggested that they flex their muscles with the US first, and then they could come and talk with the Bahamas.

What is now interesting is that England is becoming nervous about the clout that the European Court of Humane Rights is having over the UK courts.

In defending his country's national sovereignty, the Lord Chief Justice -- Lord Judge -- has declared that the English Supreme Court must have the final say in its own jurisdiction, and that common law -- which is common sense built up over more than 800 years, going as far back as legal memory (1189) -- must be defended and preserved.

April 08, 2010

tribune242

Bahamas Blog International