The recent decision from our highest court, the Privy Council, in the Maxo Tido case, which resulted in the overturning of the death penalty for the appellant, has resulted in almost mass hysteria in the country.
Some are calling for the abolition of the Privy Council as our final court of criminal appeal, while others are referring to the court and its judges in abusive terms, and politicians, always quick to attempt to gain votes by espousing what they determine the majority of voters deem important, are indicating that if elected they will enforce the death penalty.
However, can we blame the Privy Council for its position on death penalty matters? More than 10 years ago this august body in the landmark Jamaican case of Pratt and Morgan vs. the Queen ruled that it constituted cruel and inhumane treatment to hang a condemned person who had been languishing in prison under a death sentence for a long period of time (now uniformly accepted at five years).
Subsequent to that decision the Privy Council ruled in another appeal that it was not proper to condemn all persons convicted of murder to death and the sentencing in each case had to be decided on its own facts. 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 Sawyer, then president of the Court of Appeal about four years ago, called upon the government to put in place the necessary guidelines.
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.
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. The government has indicated that it intends to bring some legislation to the House of Assembly, and it is believed that this would be along the lines of a distinction between capital and non-capital murder. Examples of capital murder offenses include:
1. The killing of a peace officer or a prison officer,
2. Murder by firearm or explosives.
3. Conviction on two or more murders.
4. Murder in the course of the commission of a felony. (This would have covered the Maxo Tido case as it has been reported that this crime was committed during the commission of a rape, which is a felony.)
Therefore, as I see it there is no need to rant and rave at the Privy Council or call its judges and its decision “stupid.” For, it is not clear having regard to the constitution if it would be an easy matter to abolish the Privy Council for criminal matters, and persons involved in the financial sector continually tell us that we need the Privy Council for our offshore clients to have confidence in the Bahamian judicial system.
In recent days it has become clear that more Bahamians are aware that capital punishment is not a deterrent to crime. Consequently it can be assumed that the cry for the death penalty is for revenge.
So, if what we want is the state killing of a convicted murderer, we can keep the Privy Council and satisfy our blood thirsty desires, provided we pass the right legislation. But I would like our citizens to remember this warning:
“Revenge at first though sweet,
Bitter ere long, back on itself recoils.” (John Milton “Paradise Lost”).
By: Jeanne I Thompson
