by Sir Arthur Foulkes
A ruling by the Judicial Committee of the Privy Council last week sent shock waves up and down the country and added fuel to the ongoing debate over capital punishment in the Bahamas. It also sparked renewed demands for the removal of the Privy Council as the country’s highest court.
Bahamians calling for the replacement of the Privy Council (PC) offer two options: going with the Caribbean Court of Justice (CCJ) or making our own Court of Appeal the final judicial authority.
Some feel that the PC is too remote and not fully appreciative of Bahamian attitudes and circumstances, but the main objection is based on the perception that the PC is intent on getting rid of capital punishment.
It ruled previously that convicted murderers could not be executed if the sentence were not carried out within five years of conviction. To many, even some opposed to capital punishment, that ruling seemed a bit of a stretch and looked like legislating from the bench.
Now the PC has overturned the mandatory death sentence for convicted murderers and ruled that the sentence should be at the discretion of the court. This is a right that exists under our Constitution say the five law lords who decided the appeal.
Nevertheless, it has come as a big surprise to the general public as well as the legal fraternity to learn that the practice of mandatory death sentencing for murder is unconstitutional.
However, say the judges, “It is … clear that it took some time for the legal effect of entrenched human rights guarantees to be appreciated, not because the meaning of the rights changed but because the jurisprudence on human rights and constitutional adjudication was unfamiliar and, by some courts, resisted.
“It matters little what lawyers and judges might have thought in their own minds: in the context of codified Constitution, what matters is what the Constitution says and what it has been interpreted to mean. In 1973 there was no good authority contrary to the appellants’ argument, and much to support it.
“In the final resort, the most important consideration is that those who are entitled to the protection of human rights guarantees should enjoy that protection. The appellants should not be denied such protection because, a quarter century before they were condemned to death, the law was not fully understood.”
In one part of its 30-page judgment the PC reiterated a position taken in another case that the crime of murder embraces a range of offences of widely varying criminal culpability and that not every convicted murderer deserves to die.
“It covers at one extreme the sadistic murder of a child for purposes of sexual gratification, a terrorist atrocity causing multiple deaths or a contract killing, at the other the mercy-killing of a loved one suffering unbearable pain in a terminal illness or a killing which results from an excessive response to a perceived threat. All killings which satisfy the definition of murder are not equally heinous.”
This principle has always been recognized in the Bahamas and since 1973 more convicted murderers have been reprieved than executed. The Constitution provides for the Governor General to remit the whole or any part of any sentence on the advice of the relevant Minister.
The Minister is required to review murder cases along with the Advisory Committee on the Prerogative of Mercy before advising the Governor General, but he is not required to act in accordance with the advice of the Committee.
The constitutional provisions for the exercise of the prerogative of mercy still stand, but now, at least in the first instance, the courts will decide which convicted murderer will live and which will die.
* * *
The Government of the Bahamas has kept the door open for a later decision to join the CCJ, and perhaps the time has come to look again at that option, at least for criminal matters.
Three decades ago, Bahamian Chief Justice Leonard Knowles declared that the PC was afflicted with a terminal ailment. It has taken a long time but now the British are planning to establish a court more on the lines of the United States Supreme Court and doing away with the PC as the highest court in the land.
So, even leaving aside the question of capital punishment, the Caribbean option seems attractive. To end the appeals process with our own Court of Appeal may not be the wisest thing for a country as small as the Bahamas.
We are still recruiting foreign judges because there are not enough Bahamians who are both qualified and willing to serve on our high courts. This situation is exacerbated by the constitutional age limit which requires judges to step down at the height of their competence.
* * *
Whatever we decide to do with regard to our judicial system, the Bahamas will face increasing international pressure to abolish capital punishment. That pressure is not as intense today as it might have been because our great neighbour, the US, still allows it.
In North America both Canada and Mexico have abolished capital punishment and nearly all the countries of South America, have either abolished it altogether or retained it only for special cases.
All the countries of Western Europe have abolished capital punishment and that is a condition for membership in the European Union. Well over a hundred nations of the world have either abolished, or limited its use or not practised it in the last 10 years.
Even in conservative Africa the abolitionist movement has caught on with South Africa, Namibia, Angola and Mozambique having abolished. It is not inconceivable that sometime in the future the Bahamas may be barred from certain international organizations or otherwise sanctioned if we continue to practice capital punishment.
* * *
Whenever the debate flares up in the Bahamas, there is the inevitable appeal to scriptures to support capital punishment, and advocates almost always quote from the Old Testament of the Bible.
Radio talk show host Wendall Jones last week challenged a caller and observed that only Old Testament references are used to support capital punishment. Columnist Nicki Kelly recently made much the same point.
The truth is that in this and other issues many Bahamian religious leaders seem more comfortable with the old dispensation and its eye-for-an-eye prescriptions. They seem to forget that the founder of the Christian religion came with a new dispensation of compassion, forgiveness and redemption.
On one occasion Jesus intervened in a capital punishment case and remitted the death sentence of a woman who had committed adultery and was about to be executed by stoning.
The religious authorities of the old dispensation knew exactly what Jesus was up to, they understood the profound ramifications of his message and his actions, and so they had him put to death.