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Civil Society Says Accession to the Rome Statute Will Pave the Way for the Establishment of a Culture of Peace and Justice
York, USA - The Coalition for the International Criminal Court today
called on Nepal to demonstrate its commitment to justice and the rule of
law by acceding to the Rome Statute of the International Criminal Court
(ICC)--the world's first and only permanent international court to
prosecute war crimes, crimes against humanity and genocide. Nepal,
together with Rwanda, is the focus of the Coalition's Universal
Ratification Campaign (URC) for August 2012, a monthly campaign launched
to call upon a different country to join the Rome Statute--the ICC's
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 ...
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.
HOUSE OF ASSEMBLY
HON. TOMMY TURNQUEST, M.P.
MINISTER OF NATIOAL SECURITY
COMPENDIUM OF ANTI-CRIME BILLS
Wednesday 19th October, 2011
The Court of Appeal yesterday upheld a ruling by Chief Justice Sir Michael Barnett...
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.
During the 2012 general election, Sir Lynden Pindling's widow took to the political stage as a part of the PLP's strategy to use the late prime minister's legacy to help the party secure victory. It is debatable how successful was the strategy...
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...
The Court of Appeal will today hear arguments on the appropriate sentence for a man whose murder conviction was reduced to manslaughter on appeal.
After substituting the murder conviction with one of manslaughter, the Court of Appeal gave Dominique Moss a 25-year sentence for killing a woman in Freeport, Grand Bahama.
The Privy Council sent the case back to the Court of Appeal last November after ruling that Moss had the right to be heard on an appropriate penalty.
At the Privy Council, Moss' attorney argued that the sentence of 25 years is, on the facts of this case, manifestly excessive both generally and in particular because the sentence imposed by the trial judge on his co-accused was one of six years.
The court ruled, "The defendant was, and is, entitled to address the proper factual basis for sentence now that the conviction for murder has been quashed.
"He is entitled to address the relative roles of the two accused. He is entitled to address the proper tariff for manslaughter in The Bahamas, the proper place within that tariff for the present."
The high court was referring to the sentencing range for manslaughter, and whether the crime deserves the most severe penalty.
In the early hours of the morning, the defendant and his co-accused took the female victim from a bar and onto a golf course with the object of having sexual intercourse with her, according to the evidence.
There was evidence that she was reluctant to go. Her body was found the next morning in standing water on the course.
Her throat had been cut to the extent that her head was almost severed from her body. There were signs of sexual assault. In police interviews Moss and Lotmore each asserted that the other had killed her.
Nassau, Bahamas -
Chief Justice Sir Michael Barnett
is pleased to announce the appointment of Justice Roy Jones as a Justice of the
Supreme Court and Mr. Milton A. Evans as an acting Justice of the Supreme Court.
Both Justice Jones and Mr. Evans will be sworn in by the Governor General on
Tuesday, 1st February, 2011.
Justice Jones served as a Justice
of the High Court of Jamaica from April, 2002 to December, 2010. On 20th
December, 2010, he was sworn in to act as a Justice of the Court of Appeal of Jamaica. Justice
Jones also served as an acting Justice of the Grand Court of the Cayman Islands between January, 2010 and March, 2010...
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 ...
The Court of Appeal has ruled against an attempt by UBS (Bahamas) to appeal a decision of the court to the Privy Council in London saying the case at hand is not one of general public importance.
UBS had sought leave to appeal to the Privy Council the Court of Appeal's ruling from July 31, 2013, in which it ruled in favor of Standard Chartered Bank (Switzerland) in a matter relating to a $34.2 million claim by Standard Chartered Bank on UBS (Bahamas).
In that ruling, reviewing a decision of the chief justice which had struck out the Standard Chartered's claim, Justices Anita Allen, Christopher Blackman and Neville Adderley sent the case back to the Supreme Court for retrial.
The judges said at the time that the chief justice's ruling on the matter was "unsafe", and based on "incomplete evidence".
However, UBS (Bahamas) had, according to the most recent ruling from the Court of Appeal, sought to challenge its decision to send the matter back for a re-trial on numerous grounds that "for the most part, revolve around this court's purported failure to consider and make a determination on the facts, and its purported failure to apply the relevant law."
In response, the Court of Appeal held that the issue at hand is not "one of general public importance" and they will only be "properly answered" if the retrial that was initially ordered by the Court goes ahead.
"We believe it would be premature to send the matter to the Privy Council when all of the facts have not been established," said Justices Anita Allen, Stanley John, and Abudulai Conteh.
_The case revolves around a number of shares held as collateral for a loan by UBS (Bahamas) which the Bahamas office of the Swiss bank had agreed to transfer to Standard Chartered Bank (Switzerland), according to court documents.
The shares were beneficially owned by a mutual customer of the two banks, CIF, in 2008, who owed UBS (Bahamas) "in excess of $30 million".
According to the Court of Appeal judgment on the matter, an agreement to transfer the shares from UBS (Bahamas) to Standard Chartered (Switzerland) took place via the SWIFT messaging system in November 2008, after CIF obtained a loan from Standard Chartered Bank to pay its debt to UBS (Bahamas).
The two banks agreed to transfer the shares to Standard Chartered (Switzerland) once the Swiss bank sent $34.2 million - the amount of its loan to CIF to cover its UBS debt - to UBS.
On November 12, 2008, Standard Chartered (Switzerland) transferred the funds to UBS (Bahamas) and UBS (Bahamas) began initiating the process of transferring the shares - comprising 98,068 shares in Kingate Global Fund Limited and 36,356.58 shares in Thema Fund Limited.
However, in the meantime, the Bernie Madoff fraud led to a collapse in the value of the shares and a suspension of trading in them.
"The value of the shares collapsed as a result of the well-publicized Bernie Madoff fraud. On the 12th of December, 2008, before the shares were transferred, trading in the shares were suspended and this action was commenced on the basis that the shares could no longer be transferred," said the judgment on Standard Chartered's appeal against the chief justice's ruling.
"The plaintiff (Standard Chartered) had requested the return of the $34.2 million on the grounds that as the shares had not been and could no longer be transferred to it, the condition for payment had not been satisfied and therefore the plaintiff said it was entitled to the return of its money."
Standard Chartered (Switzerland) asserted that since the shares were not transferred following its transferral of $34.2 million to UBS, the "consideration for the payment under the contract had wholly failed".
However, UBS said that "it had performed all that was required of it under the contract".
His Excellency, the Governor-General, has, on the advice of the Judicial and Legal Service Commission, appointed Mrs Claire Hepburn as a Justice of the Supreme Court and has conferred on the Honourable Mr Justice Lyons the title of “Senior Justice”.
An edict from a senior policeman banning ex-convicts and suspects wearing ankle bracelets from the world relays this weekend could cost the government a lot of money, according to Bar Association President Elsworth Johnson.
Assistant Commissioner of Police Leon Bethell made the pronouncement when announcing security arrangements for the race.
"Persons who wear ankle bracelets, those persons known to be gang members and those persons with the propensity to commit crime or cause mischief will not be allowed into the stadium," Bethell said.
The Nassau Guardian
contacted Bethell on Sunday to ask him what was the legal basis for the decision.
Bethell, who is also a lawyer, did not state any statutory provision that gave police the authority to impose additional sanctions on suspects on bail without the approval of the court.
"We're trying to save this country," he said.
"Persons who feel that they are aggrieved can take us to court, and we can say that we had information. You don't have the information that we have.
"We are going to police the stadium. If something goes wrong, you are going to be critical of your police force.
"The world will be on us, and while the world is watching The Bahamas, we cannot allow the criminal element to destroy our country."
According to Bethell's criteria for admission to the stadium, businessman Craig Flowers, who was convicted of allowing his premises to be used for a lottery; Bishop Randy Fraser, who was convicted of abusing his position of trust by having sex with a church member he was counseling and Carlos Lamm, a drug convict and former campaign general for Education Minister Jerome Fitzgerald, would not be allowed into the stadium.
Johnson has urged people who fall into this subset to get a declaration from the Supreme Court alleging that their constitutional rights would likely be violated.
"We are a country of laws," the Bar Association president said.
"If one institution should be seen to be following the laws it is the police. These persons have constitutional right of movement. Only the court could restrict their movements.
"I don't agree that these persons should not be allowed to a public event at a public facility. That doesn't make any sense. This is not a police state."
Johnson said police should act on reasonable suspicion, not a just a hunch.
"It would be foolhardy for the police, without any good reason, to refuse to allow these persons into the stadium without reasonable cause because they will cost the government a lot of money that the government can ill afford to spend," he said.
Johnson said the police have the lawyers at the Office of the Attorney General at their disposal, if they had any doubts about the legality of their actions.
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.
Halsbury Chambers Partner Nerissa Greene Wins Precedent-Setting Case Involving Prenuptial Agreements
Nerissa A. Greene, partner, Halsbury Chambers wins precedent-setting case in support of pre-nuptial agreements. Chief Justice Sir Michael Barnett issued a comprehensive 24-page ruling affirming the contract.
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.
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
INTERNATIONAL Development Bank consultants have compiled a scathing review of the government's highly touted Swift Justice Initiative (SJI), at the heart of their study the court reporting and transcription system...
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.