The executions of 16 murder convicts since 1973 could be viewed as “unlawful” killings at the hands of the state, given last week’s ruling by the privy council, a Progressive Liberal Party senator said yesterday in a call for a full enquiry into the practices and procedures at the Attorney General’s Office and the Ministry of National Security.
Damian Gomez, who is also a practicing lawyer, said that last week’s ruling by the Privy Council that declared the mandatory death sentence in The Bahamas unconstitutional, has raised “serious societal” concerns and presents an “enormous” task for the new Attorney General “as a defender of the Constitution and the rights of citizens in The Bahamas.”
In a statement released yesterday, Mr. Gomez addressed a range of issues raised by the ruling, including what it says about the country’s commitment to human rights generally, and the possibility of government making compensation payments for the “many human rights abuses which have occurred since the 1963 Constitution came into effect in 1965.”
Mr. Gomez said an enquiry would ascertain the entire circumstances in which “we have bungled the law and in the process of bungling, 16 persons have been killed.”
“These unlawful killings shall remain a blight on our society and call into question our commitment to human rights generally and the rule of law,” said Mr. Gomez.
He said it was shocking that 33 years after independence and 43 years after internal self government, that the law on human rights would not have been appreciated until now and that “some 16 persons are to be viewed as the victims of unlawful killings at the hands of the state.”
“An enquiry ought to be made of all departments of the government and its agencies as to whether there is compliance with each and every aspect of the Bill of Rights, as set out in our Constitution, and steps ought to be taken to ensure such compliance,” said Mr. Gomez, adding that compliance officers may have to be appointed and employed at all government departments.
Mr. Gomez is one of a number of lawyers voicing their concerns over the ruling’s potential impact on the country’s judicial system.
Wayne Munroe, president of the Bahamas Bar Association, told The Bahama Journal yesterday that the ruling raises a number of concerns, particularly when it comes to the future of the remaining death row inmates at Her Majesty’s Prison.
The Attorney General’s Office announced last Friday that all sentences handed down to the 28 convicts on death row would be remitted to the Supreme Court for reconsideration, but according to Mr. Munroe, it’s not that simple.
“If you’re remitting it back, some of these [death row inmates] were convicted before judges who are no longer on the bench,” noted Mr. Munroe.
“Who do you remit those matters back to? And even if it’s remitted back, there are a number of cases in which a murder could have been committed in one of three ways or two ways or more and the jury just says guilty, they don’t tell the judge what basis they convicted the person on.
“The person has a right to a trial by their peers and they would have to be sentenced on what the jury found. The judge doesn’t know the basis on which the jury convicted and they have to sentence based on the heinousness of the crime or otherwise. That creates a practical difficulty.”
He said even if a procedure was put in place, as was announced by the AG’s Office, questions would still remain.
“The question is how exactly do you do it. In the example of where a murder may have been committed in one of three ways, all of the 12 jurors may be convinced that you committed murder, but there’s no guarantee that all of them are convinced of the reasons which they are saying you are guilty of murder. And if the imposition of capital punishment must be unanimous, then the question is do they have to be unanimous about the method by which they are finding you guilty?” Mr. Munroe asked.
And if a conviction is handed down before the procedures were put in place?
The judge would simply have to “deal with it,” said Mr. Munroe.
“That’s what judges do. They have to follow the law and the law is laid down. The death penalty is not mandatory,” he said.
“Judges will apply the law as they see it to be and as it’s pronounced to be, so that’s what the Privy Council has pronounced the law to be. Our Supreme Court judges are trial judges [and] will go about applying it as they best think the law is. They will ask for the assistance of the prosecution counsel and the defence counsel and we would be bound, in an appropriate case, to point out what we think should be the principles that guide them,” said Mr. Munroe.
“And then no doubt, if they impose the death sentence and they have to give a reason for it, the defence counsel having assisted, would still appeal. The basis of that would be another matter, or do you appeal or do you take constitutional action against it. It is a firestorm.”
Citing the council’s analysis of the decision, Mr. Gomez said the ruling also has significant ramifications for other areas of the law.
“Clearly, all laws which have hitherto been regarded as existing laws as of July 10th, 1973 must now be reviewed, considered and examined for the purpose of ensuring their compliance with the provisions of the Bill of Rights,” he said.
Mr. Gomez pointed to a number of areas that could be reviewed in light of the ruling, including the burden of proof, much of the legislation affecting Town Planning, the separation of powers as it relates to a fair trial before an independent and impartial court and the freezing of assets “pursuant” to foreign government requests.
“One may well ask whether the government is prepared to do the right thing by not only pursuing an enquiry, but also of accepting the findings of such and enquiry and by making compensation payments for the many human rights abuses which have occurred since the 1963 Constitution came into effect in 1965,” said Mr. Gomez.
“It may well be that the payment of these sums to victims and their heirs and successors may well help to atone four less than careful adherence to the Rule of Law. A gigantic task and obligation faces our new Attorney General and we pray she will have the energy and resources to meet the challenge which had been neglected by each and every one of her predecessors in office.”
By: Erica Wells, The Bahama Journal
