Is it time to abandon the Privy Council?
Guardian News Editor
Published: Jul 04, 2011
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.