PENALTY

petition to the Human Rights Committee, and both Trinidad and
Guyana re-acceded with a reservation. 14 However, the Committee
held this reservation to be invalid, since by its discriminatory purpose
it offended basic principles embodied in the Convention, 15
and in response the government of Trinidad and Tobago withdrew
from the Protocol again in 2000. Other conflicts involved attempts
to carry out executions while petitions were pending, one notorious
instance being the execution of Glen Ashby in 1994, just
one month before the five-year post-conviction deadline would
have expired. 16
These tensions culminated in fierce legal battles, as condemned
prisoners challenged the constitutionality of carrying out executions
while petitions were still pending. Eventually, it was held by
the Privy Council in relation to Trinidad and Tobago that the due
process right entitled condemned prisoners to be allowed to complete
any appellate or analogous legal processes that were capable of
resulting in a reduction or commutation of their sentences before
that process was rendered nugatory by executive action (such as
prescribing unrealistic time limits for the petitions or executing
prisoners whose petitions were pending). 17 At that time, only the
Trinidad and Tobago Constitution used the language of “due process”
in its bill of rights, but this decision was shortly thereafter
held to be applicable to Jamaica (and by extension all the remaining
countries of the Caribbean except Guyana) through the guarantee
of protection of the law. 18
Defying predictions that it was going to reverse the perceived abolitionist
tendencies of the Privy Council, the Caribbean Court of
Justice in its first major death penalty appeal arrived at a similar
result, holding that to execute a prisoner while an international
petition is pending would be a violation of the right to protection
of the law. 19
14 Hood and Hoyle, The Death Penalty, p. 108.
15 Kennedy v. Trinidad and Tobago CCPR/C/67/D/845/1999, paragraph 6.7.
16 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, 14
December 1994, E/CN.4/1995/61, paragraph 382.
17 Thomas and Hilaire v. Baptiste (1998) 54 WIR 387.
18 Lewis et al v. AG of Jamaica [2000] 3 WLR 1785.
19 Joseph and Boyce v. AG of Barbados (2006) 69 WIR 104.
Mandatory sentences
The next major development was related to the mandatory nature
of the death sentence. Early cases had espoused the view that this
aspect saved the death penalty from unconstitutionality since it
would be applied without discrimination to all those convicted of
murder. 20 By the time this view came to be rejected, the death sentence
was nonetheless held to be valid in the Caribbean because of
the special savings clause (preserving punishments predating independence)—though
not for long.
First, in countries such as Belize where the constitution had no
savings clause, the sentence was struck down because of its indiscriminate
scope—applying to all convictions for murder despite
the potential variations in culpability. 21 It was also struck down in
Jamaica, which had amended the substantive law to rationalise the
offence of murder. 22 In relation to this rationalisation, the Privy
Council held that there could be no category of capital murder
for which a conviction automatically resulted in a death sentence,
and since the law had been amended to create these offences, it
was no longer the protected pre-independence law and thus lost its
immunity. Reading amendments to the law in the Bahamas strictly,
the Privy Council overturned the mandatory aspect of the death
sentence there as well. 23
A more ingenious (and controversial) interpretation was applied to
the countries of the Eastern Caribbean, where, notwithstanding the
special savings clause, the mandatory nature of the death penalty
was struck down on the ground that this clause only preserved
punishments that were “authorised.” Since the death penalty was
mandated for certain offences, it could not be said to be authorised
and was therefore not protected by the clause, and thus it constituted
a violation of the prohibition against inhuman and degrading
punishments. 24
20 De Freitas v. Benny (1975) 27 WIR 318; Ong ah Chuan v. Public Prosecutor [1981] AC 648.
21 Reyes v. the Queen [2002] UKPC 11.
22 Watson v. the Queen [2004] UKPC 34.
23 Bowe and Davis v. the Queen (2006) 68 WIR 10.
24 The Queen v. Hughes [2002] UKPC 12 (St Lucia); Fox v. the Queen [2002] UKPC 13
(St Vincent).
134 135