BRIDGETOWN, Barbados, Wednesday September 12, 2018 – Lawmakers yesterday came as close as they have ever done to striking down a key provision of capital punishment – the abolition of the automatic death sentence – before putting a pause on the measure.
The Lower House withdrew the proposed amendment to the Offences Against the Person Act for further consideration by Government.
The amendment was to bring the law in line with a Caribbean Court of Justice (CCJ) ruling that struck down the mandatory death sentence in in the appeal cases of Barbadian murder convicts Jabari Sensimania Nervais and Dwayne Omar Severin.
Their separate appeals were consolidated because they both challenged the constitutionality of the mandatory death sentence for murder in Barbados. The justices ruled that a section of the Offences Against the Person Act was unconstitutional because it provided for a mandatory sentence of death.
But legislators left a clear message that the death penalty will remain the law of the land.
“Let there be no doubt that the Cabinet of Barbados has not made a decision to abolish the death penalty. Nothing we are doing here abolishes the death penalty. What we are doing simply is abolishing the mandatory nature of the death penalty and making corrections and amendments to legislation to give effect to that,” said Member of Parliament for Christ Church East Wilfred Abrahams, who piloted debate on the measure.
“It is not as if we had a choice. While we might have delayed in following the dictates of the Inter-American Human Rights Court or following the dictates of the conventions that we are signatories to, from the time the CCJ made the ruling that the mandatory death penalty was unconstitutional the CCJ set out what the new law for Barbados was going forward,” he added.
But the amendment to the law was shelved immediately following concerns expressed during the speeches by three MPs – Ralph Thorne QC, Housing Minister Charles Griffith and Maritime Affairs Minister Kirk Humphrey.
At the end of those contributions, acting leader of Government Business in the Lower Chamber of Parliament Lieutenant Colonel Jeffrey Bostic rose to table a successful motion that debate be suspended.
Leading off the discussion when the House resumed its post-lunch session, an emotional Thorne was adamant that the provision in the bill which empowers a judge solely with the responsibility of sentencing a convicted person to death, should be removed.
The senior attorney suggested that the decision should be made by jury, contending that it was too heavy a burden to place on the shoulders of one man or woman.
“I want to submit to you, your honour, and I want the public that feels very, very strongly on the issue of the death penalty, to consider whether the responsibility, the heavy and final responsibility of passing a sentence of death should fall on one person…whether it should fall alone on the shoulders of a judge or whether, as in some jurisdictions in the United States…that grave and weighty decision…should be made by a panel of 12 persons, and whether that panel of 12 persons would be allowed only to pass that sentence of death if they are unanimous,” suggested the MP for Christ Church South.
He pointed to a murder case which was sent on appeal to the CCJ, in which it was the jury who had not only convicted the person but also condemned him to death.
“Under the system that we are changing today at the urging of the Caribbean Court of Justice, in a very real sense, it was the jury that was not only convicting but was condemning that man to death. As I said, the judge’s role was ritualistic. This amendment today places that entire responsibility on the judge himself,” he said, adding that parliamentarians must now invite the wider public into this discussion.
While the Queen’s Counsel was quick to point out that this discussion had no political borders but was a matter of conscience, he stressed that the masses now ought to have a say in whether a judge alone or jury by unanimous verdict should decide if someone should be executed.
The senior lawyer also had issue with section 26 of the Constitution – the “savings clause” introduced in the Independence Constitution of 1966 to keep in force the full body of colonial law in force as the country ended 339 years of unbroken rule from London.
Thorne explained that this provision ensured that the country maintained any “bad or unjust” laws which existed prior to independence in 1966.
He recalled that a few weeks ago, the CCJ reminded Barbados that the clause should “not hold the country’s legal system hostage indefinitely.
“That court remarked that in Belize, when they introduced their independence constitution, their savings law clause was expressed to be for five years. In other words, it was transitional. What the savings law clause does in Belize and what it ought to have done in Barbados 50 years ago, was to have urged the Parliament to get busy… that any law prior to independence which was unjust… any law that was ripe for amendment, the Parliament of the country was urged to amend that law,” he told the Lower Chamber.
Thorne also remembered that the CCJ had said that the Barbados Parliament should get on with the business of correcting pre-Independence law as it related to this amendment.
“What is being done today ought to have been done a long time ago and that we as legislators must spend our time looking constantly at law reform. There is so much law that needs reforming in Barbados. There is so much law that is antiquated. There is so much law that is irrelevant. There is so much law that needs to be updated with technological advances.
“Except, if that law had been pre-independence, you cannot challenge it if you felt that law offended against the fundamental rights provisions,” he said, contending that parliamentarians had been brought to the House to approve the proposed legislation owing to the CCJ’s ruling.
Thorne suggested that in the future, Parliament must use its initiative rather than have to act on the behest of external forces.
He urged the Attorney General Dale Marshall that even when the amendment to the Offences Against the Person Act becomes law, he should return to the House soon to have it debate a system of degrees of murder as in other countries.
“I think the time has come when the degrees ought to be extended beyond what we have presently. At this point in time, we only have murder and manslaughter. That’s all we have. And to be honest, sometimes you get a sense that a jury believes that the penalty for murder is so severe that what might otherwise be murder they reduce to manslaughter. I suspect there are juries who have found men guilty of the lesser offence of manslaughter simply because they don’t want the man hang,” added the prominent attorney.
Responding to concerns expressed earlier by Opposition Leader Bishop Joseph Atherley, the leading defence lawyer assured that forensic evidence was alive and well in Barbados.
“Forensics have made murder cases a lot easier. I think the first murder case that relied on forensic evidence was sometime around 2006. That is 12 years ago. So that we do have a forensic laboratory. It certainly has made rape cases a lot easier to deal with because the man cannot say he did not do it, if they prove the semen is his. A lot of men used to come to court and say, ‘me? Not me, I wasn’t there’. But forensic evidence can place him there; quite literally and physically,” Thorne told the Lower Chamber of Parliament.
In his speech, Minister in the Ministry of Housing, Lands and Rural Development Charles Griffith told the Chamber that he was only supporting the Bill because of the mitigating provisions which justified the abolition of the mandatory death sentence.
Griffith, a community worker and MP for St John, sought to make a case for leniency for young men in particular, who come from dysfunctional homes, follow bad company and end up in court due to foolish decision.
“Those socio-economic problems that we have across Barbados must be fixed, if we are to reduce the court system that we would see youngsters engaging in murder,” he said.
The St John MP suggested that in handing down sentences for murder, courts should consider giving a second chance to those who are genuinely sorry and are willing to turn their lives around.
“I believe that we should not deprive persons who are seeking redemption to have that redemption and have that redemption coming from the state. So therefore, those guys who found themselves in situations of bad company, or in a situation where, whatever it is that went wrong, and the remorse is actually there and we can see that there is remorse, must be provided with a second chance in life to show that . . . ‘I am prepared to give back to society,’” according to Griffith.
The St John Parliamentarian urged the Government – and other legislators – to find a way to reintegrate these people into society.
In his contribution, Minister of Maritime Affairs and the Blue Economy Kirk Humphrey called for wider public discussion on the death penalty, while at the same time supporting the proposal to abolish the mandatory death sentence.
Humphrey shared the concerns of Griffith regarding the plight of persons from the lower socio-economic bracket in society who end up on the wrong side of the law.
“I share his views entirely as it relates to the struggles faced by people of lower socioeconomic status; and I know it is disproportionate in the way that persons born into certain classes may find themselves, one, before the court and two, guilty. And that has always bothered me about the death penalty. But there will be a conversation for that another time,” added the MP for St Michael South. (Barbados Today)