Allen: Put Capital Punishment On Referendum

“I suggest that the time has come to bring finality to this issue in The Bahamas, and to give our citizens the opportunity to decide whether the death penalty should be retained as a mandatory, or as a discretionary punishment, or whether it should be abolished. I encourage you to include the appropriate question on any Referendum you may recommend,” said President of The Bahamas Court of Appeal, Justice Anita Allen, in her presentation before the Constitutional Commission on Thursday,  February 7, 2013.

Justice Allen said The Bahamas is not alone in dealing with this “legal conundrum” and that some CARICOM countries, namely Barbados and Jamaica have amended their constitutions to retain aspects of the death penalty. Barbados, said the Justice, “has gone as far as to expressly provide for the imposition of the mandatory death penalty, and made the CCJ (Caribbean Court of Justice) its final Court of Appeal.”

The Appeals Court President however, made mention of the fact that the Bahamian penal code has been amended to provide for specific category of cases to which the death penalty should apply, but stopped short of further commentary on those legal amendments because in her words, “the law has not been tested.”

What has been tested, according to Justice Allen, was the Max Tido murder case and the decision rendered by Lord Kerr on behalf of the Board (of the Privy Council). Lord Kerr opined that even though Tido’s crime was “dreadful” and “appalling,” is was “not one that warranted the punishment of death” as it did not satisfy the criterion of “worst of the worst” and “rarest of the rare” even though the school girl who Tido lured from her home was so tortured and bludgeoned that “her brain tissue was spewed outside of her body.”

This test, Justice Allen said, “caused much consternation in the ranks of Legal Scholars and Jurists alike. It is difficult to apply, in as much as it is like a moving post.” She continued that because of these conceptual difficulties arising from the Privy Council ruling, “there will always be a worse or rarer case than the case being considered, and the practical effect of these decisions is the abolition of the death penalty in The Bahamas.”

Her recommendation to decisively address this vexing, divisive and controversial national issue is for the Bahamian people to decide once and for all, by Referendum, whether or not they want the death penalty in this jurisdiction.

In addition to forcefully addressing the legal conundrum of the death penalty, Justice Allen focused primarily on what she termed “the fundamental rights and freedoms provisions of The Constitution,”  including the constitutional provision for trial by jury, equality before the law and the right to counsel. Her focus centred on Article 20 of The Constitution.

In stark contrast to the legal opinion held by former Chief Justice Sir Burton Hall on the matter of jury trials, Justice Allen believes that even though that system is “less efficient and more costly than bench trials,” she reiterated her conviction that “the right to trial by jury is a fundamental feature of the right to a fair trial which is a noble and realistic goal.” For that reason, among others, the Justice believes that “trial by jury should continue to exist as a constitutional right for serious offences, and that Parliament should not be given the authority to enact laws which limits that right.”

Even though The Constitution guarantees certain personal freedoms and rights, Justice Allen pointed out that equality before the law is noticeably absent from The Constitution. “Namely the right of all persons to be equal before the courts or other adjudicating authority, regardless of socio-economic status, gender, ethnicity, race, politics, or religion” said the Appeals Court President. To this end she called for a constitutional provision assuring that equality under the law is “one of our fundamental rights and freedoms. This would clarify any ambiguity that may exist in the mind of the public that everyone stands equal before the law, no matter who they are.”

Citing the United States Supreme Court decision, that of “Gideon v Wainwright,” as her foundational argument, Justice Allen sought to make the case that the right to counsel is essential to a fair trial in criminal proceedings. In doing so she pointed out that in paragraph 2(d), the constitution “expressly delegates, the assurance of this essential safeguard for indigent criminal defendants to Parliament.”

She went on to say that the law leaves the assignment of counsel up to the discretion of the trial judges in the Supreme Court and only persons convicted of capital offences have the right of legal counsel in the Court of Appeal. Further, in non-capital cases, she said that “the court decides whether it is in the interest of justice to assign counsel or not.“ Notably, the Justice said, Magistrates have no power under the law to assign counsel and criminal defendants appearing before them cannot request legal counsel until after the defendant would have appeared before The Supreme Court or the Court of Appeal. A request, she added, the Magistrate Court may not be able to accommodate.

Having laid out the shortcomings in the legal system that could prejudice the indigent defendant in his right to counsel, Justice Allen submitted that the ultimate protection (of the defendant) is perhaps afforded in a constitution amendment, specifically to Article 19(2). This amendment will afford rights to all persons arrested and detained to be permitted to “instruct and retain counsel of his choice, and more over to hold private communication with him without delay.” This amendment is intended to afford legal counsel to all defendants, regardless of their ability to pay.
The Constitutional Commission is scheduled to host four Town Hall Meetings in Grand Bahama on Friday, the 8th February 2013 as it continues with its consultative process on constitutional reform.

By Elcott Coleby
Bahamas Information Services