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PRIME Minister Hubert Ingraham revealed yesterday that Senior Justice Anita Allen will be appointed as President of the Bahamas Court of Appeal in January 2011, with incumbent President Dame Joan Sawyer set to retire this month.
Prime Minister Ingraham revealed the intended appointment at a televised press conference at the British Colonial Hotel yesterday.
Senior Justice Anita Allen will be made President of the Court of Appeal in January, Prime Minister Ingraham said yesterday.
The constitutional retirement age of a Court of Appeal Justice is 68, however Dame Joan will turn 70 on November 26 and complete the two-year granted extension.
Dame Joan was appointed President of the Court of Ap ...
Hague--The Coalition for the International Criminal Court--a global
network of more than 2,500 non-governmental and civil society
organizations in 150 countries--today urged states to use the extended
nomination period for the upcoming International Criminal Court (ICC)
elections to continue to identify the most highly-qualified candidates
for the available positions. States parties to the Rome Statute--the
ICC's founding treaty--now have until 16 September 2011 to nominate
candidates for six judicial vacancies. The election, together with that
of the Prosecutor and six members of the Committee on Budget and
Finance, scheduled to take place at the tenth session of Assembly of
States Parties (ASP) in December 2011, represents the most significant
changeover in ICC officials since the creation of the Court...
Suspects to be arraigned in court today - As a result of intense police investigations into a number of serious crimes, Central Detective Unit Officers have charged the following persons who will appear in the Magistrate's Court, Nassau Street today to be formally charged...
Prime Minister the Rt. Hon. Hubert Ingraham tabled Amendment Bills in
Parliament Monday, July 26th, 2010 which would change the fee structure for matters
before the Supreme Court.
Instead of lawyers having to make out multiple cheques for small
amounts to process matters before the Court, each matter will now
require the payment of a single fee.
This is expected to make the processing of matters before the Court quicker and more efficient.
New York, NY --
Coalition for the International Criminal Court (CICC)
--a global network of more
than 2,500 civil society organizations in 150 countries advocating for a fair,
effective and independent ICC and improved access to justice for victims of
genocide, war crimes and crimes
called on Egypt to demonstrate its
commitment to international justice and
the rule of law by ratifying the Rome Statute of the International Criminal Court
(ICC) and the Agreement on
Privileges and Immunities of the
Court (APIC). The Coalition has selected Egypt as a focus for its May 2012 Universal
Ratification Campaign (URC), a monthly campaign launched to encourage countries
to join the Rome Statute. Recent parliamentary elections and
upcoming presidential elections make this an opportune time for Egypt
to display its commitment to justice and
the rule of law by joining the Rome Statute, the Coalition said...
Developers behind Cotton Bay Estates Limited have come up short in a Supreme Court ruling that denies the validity of $11 million worth of performance bonds.
The ruling, filed on behalf of Judge Stephen G. Isaacs, sided with CIBC FirstCaribbean International Bank (Bahamas) and Penn's Renovation & Construction Company, claiming "the bonds are not valid and enforceable against the bank".
The Bahamas has executed by hanging 50 condemned persons from December 1929 to January 6, 2000, pursuant to the sentence of death pronounced by the Supreme Court of The Bahamas. There is presently one condemned prisoner awaiting execution. The murder rate is currently at 94 and climbing. Therefore, the fear of violent crime has elicited a public cry for a solution to crime. For some the resumption of hanging is the answer, in spite of the compelling evidence that capital punishment is not a deterrent to the rising rate of violent crime and the risk of wrongful convictions.
Professor Ann Spackman, in her book "Constitutional Development of the West Indies 1922-1968" (1975) at page 21, argues that one of the legacies of plantation slavery, colonialism and racial oppression in the Caribbean is the continuing "emphasis on coercion and control" and the existence of harsh laws enforced in a punitive spirit during most of the historical experience of the Caribbean since 1492.
Lloyd Barnett, Q.C., in an essay entitled "The Present Position Regarding the Enforcement of Human Rights in the Commonwealth" in the West Indian Law Journal (November 1980), counters that the Commonwealth Caribbean, in addition to having legacies of slavery and colonialism, has also been the beneficiary of the common law which flowered into passionate self-determination and aspiring constitutionalism.
However, the challenge facing constitutional jurisprudence in the Caribbean is to move away from the English techniques of statutory interpretation, applicable to ordinary legislation, when interpreting the Constitution that requires a more flexible and purposive interpretation, informed by international human rights instruments and the evolving global standard of human rights, human decency and norm of respect. The Privy Council, in A.G. of Gambia v. Jobe (1985), held that there should be a liberal and contextual construction of the Constitution to give effect to the intent and purpose of the Constitution.
The tension between the punitive application of the law and restorative justice approach is most vividly illustrated around the issue of the death penalty in The Bahamas. Articles 16, 17 and 30 of the Bahamian Constitution provide:
16. (1) No person shall be deprived intentionally of his life save in execution of the sentence of a court in respect of a criminal offense of which he has been convicted.
(2) A person shall not be regarded as having been deprived of his life in contravention of this Article if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justified...
17. (1) No person shall be subjected to torture to inhuman or degrading treatment or punishment.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that the law in question authorizes the infliction of any description of punishment that was lawful in the Bahama Islands immediately before 10th July 1973.
30. (1)... Nothing contained in or done under the authority of any written law shall be held to be inconsistent with or in contravention of any provision of Articles 16 to 27 (inclusive) of this Constitution to the extent that the law in question -
(a) is a law (in this Articles referred to as 'an existing law') that was enacted or made before 10th July 1973 and has continued to be part of the law of The Bahamas at all times since that day.
Saving clauses, such as contained in Article 17 (2) and the general saving clause contained in Article 30 (a), which were intended to be transitional until law reform removed existing laws inconsistent with the Constitution, are sometimes used to limit the enforcement of personal liberties granted by the Constitution.
Chief Justice Telford Georges, in an essay entitled "The Scope and Limitations of the State Machinery" in Human Rights and Development (1978) at page 45, argued, with respect to a similar clause in the Constitution of Trinidad & Tobago, that such clauses "... considerably limits the scope of the machinery of judicial review as a method of enforcement of the rights apparently enshrined in the Constitution. The judicial view... is that the constitutions create no new rights. They merely preserve existing rights."
Article 30 (a) is construed as saving Section 312 of the Penal Code that pronounces that the death penalty is the punishment for murder as being compatible with and not in contravention of any of the fundament rights and freedoms contained in Articles 15 to 27. Until 2011 the mandatory sentence of death by hanging was applied upon the conviction of murder and treason.
However, the Privy Council, informed by the evolving jurisprudence in Europe, has forced the Commonwealth Caribbean to conform to the evolving standard of human decency and human rights in the application of the death penalty. In 1993 the Judicial Committee of the Privy Council, in the case Pratt and Another v. Attorney General of Jamaica (1993), held that the execution of the death penalty after five years was unconscionable delay and would constitute a contravention of Article 17 (1) of the Constitution, except where the delay had been the fault of the accused.
This ruling resulted in scores of condemned prisoners in The Bahamas having their death sentences commuted to life imprisonment due to delay. In 2000 the Privy Council, in Neville Lewis, overturned Reckley v. Minister of Public Safety and Immigration (1996) and held that (a) a condemned prisoner has a right to the secure protection of the law and to due process which would be denied if he were to be executed before the completion of a hearing before the Inter-American Commission on Human Rights; (b) that a condemned prisoner who applied for mercy had a due process right to know what material had been placed before the Prerogative Committee on Mercy and be afforded the right to make representations and know the reasons for the decision of which the process is subject to judicial review; and (c) that the passage of time and their treatment in prison may constitute inhuman or degrading treatment.
In Henfield and Ricardo Farrington v. A.G. of The Bahamas, the Privy Council reduced the period by which The Bahamas must execute a condemned prisoner from five years to three and a half years due to an oversight that The Bahamas is a party to the Inter-American Commission on Human Rights. The five-year rule was subsequently reinstated. The Privy Council, in Forrester Bowe, Jr. and Trono Davis v. The Queen (2006), held that section 312 of the Penal Code Act that declares the mandatory sentence of death for the conviction of murder "should be construed as imposing a discretionary and not a mandatory sentence to death". Consequently, the mandatory sentences of death imposed on Forrester Bowe, Jr. and Trono Davis were quashed and the cases were remitted to the Supreme Court for consideration of appropriate sentences.
In light of the Privy Council's ruling in Forrester Bowe, Jr., the Parliament of The Bahamas amended the Penal Code Act in 2011, by removing the mandatory sentence of death for the conviction murder and setting out the circumstances that will attract the death penalty of a person convicted for murder, such as the murder of a member of the police force, a prison officer, a member of the defence force, a judicial officer, a witness, a juror, the murder of a person during the course of a felony or the murder of more than one person.
Trends in thinking
The trend in judicial reasoning by the Privy Council, informed by the evolving standard of human rights and human decency, will eventually lead, in my opinion, to a judicial finding that the death penalty is contrary to human rights and human decency. The reaction in The Bahamas and the wider Commonwealth Caribbean to this trend has been a desperate effort to retain the death penalty. In this context, some advocates have proposed delinking The Bahamas from the Privy Council as the final appellate court for The Bahamas in favor of either the establishment of final appellate court in The Bahamas or by accepting the compulsory original jurisdiction of the Caribbean Court of Justice. The Bahamian society, on reflection, must determine whether the death penalty is a deterrent to crime or cold-blooded killing by the state, which brutalizes the offender and the society. When the state kills does it lessen its offensiveness and elevate killing into principle? If the justification is the principle of "an eye for an eye", should we not also advocate that rape be undertaken by the state as a punishment for rape?
Chief Justice Gubbay of the Supreme Court of Zimbabwe, in the case Catholic Commission for Justice and Peace in Zimbabwe v. Attorney General and Others (1993), argued that retribution is not a sound rationale for the death penalty as follows: "Because retribution has no place in the scheme of civilized jurisprudence, one cannot turn a deaf ear to the plea made for the enforcement of constitutional rights. Humaneness and dignity of the individual are the hallmarks of civilized laws. Justice must be done dispassionately and in accordance with constitutional mandates. The question is not whether this court condones the evils committed by the four condemned prisoners, for certainly it does not. It is whether the acute mental suffering and brooding horror of being hanged which has haunted them in their condemned cells over the long lapse of time since the passing of sentence of death, is consistent with the guarantee against inhuman, or degrading punishment or treatment."
The European Court of Human Rights in the case Soering v. the United Kingdom (1989) abolished the death penalty in the European Union. Similarly, South Africa, Australia, India, New Zealand, Namibia, The Gambia, for example, have also abolished the death penalty. In the United States, 18 states have abolished the death penalty.
In The Bahamas, without an adequate public defender's system, there is a significant risk that innocent persons may be wrongly convicted for murder, since most defendants in capital cases tend to be poor African-Bahamian men, sometimes with mental problems and background of abuse. There needs to be a more disciplined focus on the causes of crime in The Bahamas and the comparative deterrence of the death penalty in relation to life imprisonment.
1. The government should commission The College of the Bahamas and the Eugene Dupuch Law School to conduct a scientific study to determine the comparative deterrence between the death penalty and life imprisonment to inform public education and policy on the issue of the death penalty.
2. The law reform commissioner should be directed to conduct a comprehensive review of all "existing laws" that may be saved under the "existing law provisions" of the Constitution and recommend amendments to ensure consistency of all laws with the Constitution.
o Alfred Sears is an attorney, a former member of Parliament and a former attorney general of The Bahamas.
By NATARIO McKENZIE
Tribune Staff Reporter
NEW Court of Appeal President Anita Allen called her appointment to the head of the Bahamas' appellate court the "culmination and exclamation point of a lifelong love and passion for the law."
Judge Allen, formerly a senior justice of the Supreme Court, was sworn in yesterday as the new president of the Bahamas Court of Appeal at a brief ceremony at Government House attended by about 300 guests.
"There are defining moments in one's life, and certainly, today is one of them for me. It is the culmination and exclamation point of a lifelong love of and passion for the law," Judge Allen said after ...
When the celebrations for Mark Knowles come to an end the former Bahamian tennis pro, could go to the Bahamas Lawn Tennis Association's (BLTA) National Tennis Centre and watch the young and upcoming stars train on a facility named in his honor.
A magistrate on Thursday fined a Jamaican man for deceiving a public officer.
Cleveland James, 40, of Pinewood Drive, pleaded guilty to the charge when he made his initial appearance before Chief Magistrate Roger Gomez.
Asked why he gave police a false name, James told the magistrate, "I was scared."
James, who is in the country illegally, told the court that he is married to a Bahamian, who did not "put in the [immigration] papers".
Corporal Catherine Darling, the prosecutor, told the court that police found James spraying a car on Malcolm Road West.
When the officers asked James his name, he gave a false one, Darling said.
However, they later found an ID in the defendant's name. When questioned about the ID, James told the officers that it belonged to his brother who had already left The Bahamas.
Gomez gave James the option of a $50 fine or spending one month in prison. The court also recommended early deportation.
The 18th Annual Clay Court Championships, sponsored by AID, will be held at the Gym Tennis Club in Winton Meadows, from August
This tournament is perennially the most eagerly anticipated event on the local tennis calendar and will feature competition
in nine categories - Boys and Girls Under-18 Singles, Gentlemen's and Ladies Singles and Doubles, Gentlemen's Junior Vets
Singles and Doubles and Mixed Doubles. Competitors can enter a maximum of three events.
While facing the challenge of re-building their flagship store recently lost to fire, AID has re-affirmed its longstanding
commitment to the tournament. AID spokesperson Janelle Watson-Davis commented: "Although our business has been disrupted by
the fire, it will be business as usual on the courts and we look forward to the usual player participation."
The entry deadline is Wednesday August 10, at 6:00 p.m. and entries can be e-mailed to email@example.com or delivered
to the Gym Tennis Club before that time. Entry forms are available at the club, the Bahamas Lawn Tennis Association's (BLTA)
National Tennis Centre and other local clubs. Entry fees are $15 for each singles entry, and $10 per player for each doubles
entry. All entrants must be fully paid up members of the BLTA.
The draws for all divisions will take place at the Gym Tennis Club on Thursday, August 11 at 6:00 p.m.
Preliminary issues were raised in the Supreme Court yesterday as a hearing over a bid to block the sale of 51 per cent of BTC to Cable and Wireless was due to open.
The hearing took placed in closed court before Justice Neville Adderley. Last month, unions representing BTC workers filed a writ in an attempt to block the sale of BTC.
The unions, the Bahamas Communications and Public Officers Union (BCPOU) and the Bahamas Public Managers Union (BCPMU), filed a joint action in the Supreme Court raising a number of issues, among them questioning the right of
The former executives of the Gordon 'Butch' Stewart-owned Appliance Traders (ATL) Group who are facing fraud charges are to next appear in the Corporate Area Resident Magistrate's Court on October 11.
A U.S court has dismissed a case termed "straight out of a Hollywood script" involving a top law firm, an offshore bank and a $14 million inheritance, citing lack of jurisdiction.
The debate over the Privy Council and whether The Bahamas should retain it as its final court of appeal was thrust back into the spotlight last week, when Law Lords in London ruled that Maxo Tido, convicted of the brutal murder of a teenage girl, should not have been sentenced to death for his crime.
In its ruling handed down on June 15, the Privy Council said that the crime did not warrant execution. "This was, in short, an appalling murder but not one which warrants the most condign punishment of death," wrote the Law Lords.
The case has now been sent back to the Court of Appeal for the imposition of "the appropriate sentence".
Execution remains the most severe punishment prescribed by the state for the crime of murder.
And it is frustrating to many that it is virtually impossible to carry out that punishment due to the appeals process, which normally takes years to complete.
Despite the regularity of the issuance of the death sentence, executions are uncommon. There has not been a hanging in The Bahamas since David Mitchell was executed on January 6, 2000.
In the 1993 Pratt and Morgan ruling, Her Majesty's Privy Council ruled that it would be cruel and inhumane to execute a murder convict more than five years after the death sentence was issued.
This ruling slowed the execution process. Murder trials take a long time to come up in this country and the appeals process after the death sentence is issued also takes years.
The country hanged 50 men since 1929, according to records kept at Her Majesty's Prison. Five of them were hanged under the first two Ingraham administrations (1992-2002); 13 were hanged under the 25-year rule of the Pindling government (1967-1992); and the remainder were executed between 1929 and 1967.
In 2006, the Privy Council also issued a ruling stating that the section of the Penal Code requiring a sentence of death be passed on any defendant convicted of murder "should be construed as imposing a discretionary and not a mandatory sentence of death."
The government has acknowledged that hangings are unlikely considering the five-year rule and the amount of time it takes for the appeals process to take place. However, despite this acknowledgment, capital punishment remains a legal punishment.
This commentary is not intended to offer an opinion on whether or not capital punishment is a fair or reasonable punishment. There are good arguments for and against hangings.
What is clear is that it is virtually impossible for the death sentence to be carried out. And appeals against the sentence add to the backlog of cases before various courts. The appeals waste time and money.
Anecdotally, the majority of Bahamians appear in favor of executions.
But what is the point of having the death penalty on the books if it is virtually impossible to carry out? Either we end the death penalty or divorce ourselves from the Privy Council.
As we all consider ways to reduce the number of matters before the court in order to make the criminal justice system more efficient, we must put this issue up for debate. Emotionalism is useless. The facts are the facts. Hangings, though desired, are unlikely.
We must now at least start the discussion of the post-hanging period in The Bahamas.
If we are to retain our relationship with the Privy Council -- and there are a number of sound reasons why we should -- new laws are needed, creating categories of murder. A proper definition of life in prison must also be brought forward along with a proper system of parole.
These are the issues that need to be debated when it comes to dealing with those who murder.
Either we accept the reality that our relationship with the Privy Council amounts to an end to the death penalty, or we seriously consider what it would mean to end our relationship with the Privy Council.
Opposition Leader Dr. Hubert Minnis said last night he intends to table a bill in the House of Assembly today that would remove the impediments to capital punishment.
"We acknowledge the preponderance of modern research which asserts that it cannot be shown that the death penalty has a deterrent effect upon the mind of the would-be murderer," said Minnis in a new year's address televised on Cable 12.
"That may be so, but what is also clear in our Bahamas is that today there is a hardened criminal element who have nothing but contempt for law, order, or human suffering, and for whom there is no respect for human life, even the lives of innocent by-standers and children.
"At the very least there should be the certainty of sure punishment, and punishment which is appropriate to the crimes committed."
Minnis said the bill would address several weaknesses in the laws that have caused the Privy Council to overturn capital sentences for convicted murderers.
He said the bill would mandate that an appeal against the death penalty can only be made to The Bahamas' Court of Appeal and nowhere else; and if a delay between the conviction of the murderer and the proposed date of hanging is caused then the five-year limit imposed by the Privy Council would not apply.
Minnis said the bill would also mandate that the governor general prescribe time limits for the lodging and conclusion of all appeals against conviction, or constitutional appeals, and if the same are not concluded within such time limits, the Advisory Committee on the Prerogative of Mercy would be able to advise that the law should be brought into execution.
He said the bill would also seek to remove the constitutional right to trial by jury in cases of murder, manslaughter, or crimes involving the use of firearms to inflict harm or death, and particularly in instances where there is a likelihood of jury or witness tampering or intimidation.
He said in such instances the case would be heard by a panel of two Supreme Court judges along with a qualified non-judicial attorney called an assessor.
He noted that as the bill seeks to affect fundamental rights and freedoms, which are enshrined in the constitution, it would require a national constitutional referendum.
"My fellow Bahamians, it will be up to each and every one of you to decide whether these proposals become law by way of an amendment of our constitution," he said.
The last hanging in The Bahamas was carried out on January 6, 2000 when David Mitchell was executed for murdering a German couple.
There are three men in the country who are under the sentence of death: Kofhe Goodman, Anthony Clarke Jr. and Mario Flowers.
Chairman of the Constitutional Commission Sean McWeeney noted on Monday that capital punishment is unlikely as long as the Privy Council is the final court of appeal for the country.
The Constitutional Commission last year recommended the retention of the Privy Council as the final court of appeal, but called for the government to amend the law to increase the likelihood that the death penalty would be carried out.
It said Parliament should amend the law to "tie the hands" of the Privy Council.
In March 2006, the Privy Council ruled that the mandatory death sentence in The Bahamas was unconstitutional. Following that ruling, several men who were sentenced to death were resentenced to life in prison.
In 2011, Parliament passed a law outlining the categories of murder which would attract the death penalty.
Prime Minister Perry Christie recently told The Guardian that the government is "seriously considering" strengthening those laws.
The Bahamas hanged 50 men since 1929, according to records at Her Majesty's Prisons.
President of the Bahamas Hotel Catering and Allied Workers Union (BHCAWU) Nicole Martin yesterday appealed a Supreme Court ruling that ordered the union's Executive Council to hold an election on or before February 28, despite previously stating she would not appeal.