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The Challenge to the Mandatory Death Penalty in the Commonwealth Caribbean

  • Joanna Harrington (a1)
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1 Spence and Hughes v. The Queen, Crim. App. Nos. 20 of 1998 and 14 of 1997, para. 173, judgment rendered Apr. 2, 2001 (E. Carib.).

2 The term “Commonwealth Caribbean” refers to a regional grouping of independent states that share political and historical links to the United Kingdom through their former colonial status and are currently members of the international organization now known simply as “The Commonwealth.” The group includes Antigua and Barbuda, the Bahamas, Barbados, Dominica, Grenada, Jamaica, St. Kitts (also known as St. Christopher) and Nevis, St, Lucia, St. Vincent and the Grenadines, as well as Guyana and Belize, although these last two states are geographically part of South and Central America, respectively. See generally Rose-Marie BelleAntoine, Common Wealth Caribbean Law and Legal Systems (1999).

3 Jamaica, for example, has one of the highest murder rates in the world. See, e.g., AdamsDavid, Jamaica to Bring Back Hanging in Drug Crime Fight, Times (London), Dec. 4, 2002, at 17.

4 In its most recent report on the death penalty in the English-speaking Caribbean (ESC), Amnesty International acknowledged that” [i] t is undoubtedly true that die death penalty enjoys popular support across the ESC. Opinion polls show the majority of citizens favor the use of capital punishment.” Amnesty International, State Killing in the English Speaking Caribbean: A Legacy of Colonial Times, AI Index: AMR 05/003/2002, Apr. 23, 2002, at 11 [hereinafter AI2002 Report]. Amnesty International reports are available online at <http://web.amnesty.org/library/engindex>.

5 See DavidA. C. Simmons, Conflicts of Law and Policy in the Caribbean—Human Rights and Enforcement of the Death Penalty—Between a Rock and a Hard Place, 9 J. of Transnat’l l. & Pol’y 263 (2000). The author was, at the time of writing, the attorney general and minister of home affairs of Barbados. He now serves as the chief justice of Barbados.

6 The exception was Guyana.

7 British-based lawyers have provided much assistance to Caribbean lawyers representing death row prisoners, with their efforts receiving judicial recognition in Higgs v. Minister of Nat’l Sec, [2000] 2 App. Cas. 228, para. 65 (P.C. 1999) (appeal taken from Barb.). In a self-described “Postscript” to his dissenting judgment, Lord Steyn wrote:

[T]he Privy Council is crucially dependent on the services of firms of solicitors, organised in a group called The London Panel, as well as on a number of barristers, leading counsel and juniors, who act for applicants and appellants from the Caribbean. These lawyers investigate, research and prepare the cases. Often the issues are complex. The service rendered by these lawyers to the Privy Council, and to the cause of justice, is invaluable. Indeed without it the petitions and appeals from Caribbean countries could not be considered ‘ properly.

Id, para. 73.

8 The most recent executions in the region took place in the Bahamas in 2000 and in Trinidad and Tobago in 1999. Two Executed in Bahamas Despite Appeal, Bbc News, Oct. 15, 1998, available at <http://news.bbc.co.uk/l/hi/world/americas/194172.stm>; Amnesty International, Trinidad and Tobago: Three Men Hanged Today, AI Index: AMR 49/06/99, June 4, 1999 . Four executions were scheduled to take place in Barbados in July 2002 (see Amnesty International, Barbados: Proposed Executions Could Constitute Murder, Ai Index: AMR 15/002/2002, June 28, 2002), but were later stayed due to pending appeals.

9 According to die BBC in late 2002, there were 100 inmates on death row in Trinidad and Tobago, 60 in Jamaica, 30 in the Bahamas, 23 in Guyana, 17 in Barbados, 9 in Antigua, 6 in Belize, and 1 in St. Lucia. Seeking justice Closer to Home, BBC News, Nov. 27, 2002, available at <http://news.bbc.co.Uk/l/hi/world/americas/2478665.stm>. Amore recent tally is unavailable, but a year later, the BBC did report that Trinidad and Tobago had 86 inmates on death row: Fresh Hope for Death Row Inmates, BBC News, Nov. 21, 2003, available at <http://news.bbc.co.uk/go/pr/fr/-/l/hi/world/americas/3226324.stm>.

10 January 2003 figures report over 3700 prisoners on death row in the United States. See Amnesty International, Facts and Figures on the Death Penalty, AI Index: ACT 50/005/2003, Apr. 11, 2003.

11 Amnesty International reports that” [t]iny, airless cells, with no natural light, thin mattresses or no bed at all, appalling food and almost no medical care are the norm for death row inmates across the region.” AI 2002 Report, supra note 4, at 28.

12 The provision of legal aid to those charged with serious offenses in the Commonwealth Caribbean is not guaranteed, although changes may come about as a result of the Privy Council’s decision in Hinds v. Attorney Gen. of Barbados, [2002] 1 App. Cas. 854 (P.C. 2001). On this decision, see DerekO’Brien, The Flight to Free Representation in the Commonwealth Caribbean, 2 Oxford J. Common Wealth L. J. 197 (2002). See also Rose-MarieBelle Antoine, International Law and the Right to Legal Representation in Capital Offence Cases—A Comparative Approach, 12 Oxford J. Legal Stud. 284 (1992) (noting that the UN Human Rights Committee has long recognized the problem of inadequate and unavailable representation for Caribbean death row prisoners).

13 Ramesh LawrenceMaharaj, The Death Penalty: Legal and Constitutional Issues,9 Carib. L.R. 137 (1999). At the time of writing, the author was the attorney general for the Republic of Trinidad and Tobago.

14 See de SmithS. A., The New Commonwealth and its Constitutions (1964).

15 Nov. 4, 1950, 213 UNTS 222, Eur. T.S. No. 5 (in force Sept. 3, 1953) [hereinafter ECHR]. The same provisions appear in many of these constitutions, starting with the Nigerian Constitution of 1959, which was then used as a model for other states such as Jamaica. de Smith, supra note 14, at 177–85.

16 See Antoine, supra note 2, at 75–77.

17 Trin. & Tobago Const. Act 4 of 1976, reprinted in 18 Constitutions of the Countries of the world (AlbertP. Blaustein & GisbertH. Flanz eds., 1988).

18 S.C. 1960, c. 44, Part I, reprinted in R.S.C. 1985, App. III.

19 ECHR, supra note 15, Art. 2, para. 1.

20 The exception being Belize, which had a five-year transitional savings clause that is now spent See infra note 59.

21 See DemerieuxMargaret, Fundamental Rights in Commonwealth Caribbean Constitutions 5358 (1992). See also Antoine, supra note 2, at 78.

22 See de Freitas v. Benny, [1976] App. Cas. 239 (P.C.) (appeal taken from Trin. & Tobago); Abbott v. Attorney Gen. of Trinidad and Tobago, [1979] 1 W.L.R. 1342 (P.C); and Riley v. Attorney Gen. of Jamaica, [1983] 1 App. Cas. 719 (P.C).

23 See the speeches of Lords Scarman and Brightman in Riley, supra note 22. For Caribbean recognition of the significance of these dissents, see Maharaj, supra note 13, at 150.

24 [1994] 2 App. Cas. 1 (P.C. 1993). For commentary, see HatchardJohn, A Question of Humanity: Delay and the Death Penalty in Commonwealth Courts, 20 Commonwealth L. Bull. 309 (1994); SimeonC. R. Mcintosh, Cruel, Inhuman and Degrading Punishment: A Re-Reading of Pratt and Morgan, 8 Carib. L. Rev. 1 (1998); PhillipsBarry, Jamaica—Death Penalty—Definition of Torture and Inhuman or Degrading Treatment or Punishment, 88 AJIL 775 (1994); and WilliamA. Schabas, Execution Delayed, Execution Denied, 5 Crim. L. Forum 180 (1994). See also WilliamA. Schabas, Soering’s Legacy: The Human Rights Committee and the Judicial Committee of the Privy Council Take a Walk Down Death Row, 43 Int’l & Comp. L.Q. 913 (1994) (contrasting the judgment of the Privy Council in Pratt and Morgan with that of the Human Rights Committee in a comparable case).

25 For a detailed study of the evolution of the Privy Council’s case law on capital punishment, see SirLouisBlom-Cooper & GelberChristopher, The Privy Council and the Death Penalty in the Caribbean: A Study in Constitutional Change, 3 Eur. Hum. Rts. L.R. 386 (1998) and RobertsNicholas, The Law Lords and Human Rights: The Experience of the Privy Council in Interpreting Bills of Rights, 5 Eur. Hum. Rts. L.R. 147, 15360 (2000). For an alternative perspective, see Simmons, supra note 5.

26 According to the attorney general of Barbados at the time, Jamaica commuted at least 150 sentences, Trinidad and Tobago commuted 53, while Barbados commuted 9. Simmons, supra note 5, at 271 n.43. In Trinidad, the death sentence is commuted to one of seventy-five years imprisonment with hard labor. Trinidad: Government Yet to Decide on What to Do with Convicted Murderers, BBC Worldwide Monitoring, Feb. 19, 2003, available in LEXIS, News Library, Individual Reports File.

27 AI 2002 Report, supra note 4.

28 See Simmons, supra note 5, at 284. For litigation concerning the new procedures introduced in Trinidad and Tobago, see Thomas v. Baptiste, [2000] 2 App. Cas. 1 (P.C. 1999).

29 Not all Commonwealth Caribbean states are subject to the jurisdiction of each of these three international bodies. Only states that have ratified the Optional Protocol to the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 302 (entered into force Mar. 23, 1976), are subject to the jurisdiction of the UN Human Rights Committee for individual communications, while only states that have ratified the American Convention on Human Rights, Nov. 22, 1969, 1144 UNTS 123, OASTS. No. 36 (entered into force July 18, 1978) are subject to the jurisdiction of the Inter-American Court of Human Rights. However, all states that are members of the Organization of American States (OAS), including those in the Commonwealth Caribbean, are subject to the jurisdiction of the Inter-American Commission on Human Rights for individual petitions through their ratification of the Charter of the Organization of American States (opened’for signature Apr. 30, 1948), 119 UNTS 3, 2 UST 2394, OASTS Nos. 1-Cand61 (entered into force Dec. 13, 1951) and the normative effect of the oft-forgotten American Declaration of the Rights and Duties of Man, May 2, 1948, OEA/Ser.L/V/II.23, doc. 21 rev. 6, reprinted in Basic Documents on Human Rights 665 (BrownlieIan & GuyS. Goodwin-Gill eds., 4th ed. 2002).

30 Simmons, supra note 5, at 284.

31 See BakerJ. H., An Introduction to English Legal History 51218 (4th ed. 2002).

32 According to the Report of the Royal Commission on Capital Punishment (1949–1953), Cmnd. 8932, as cited in Reyes v. The Queen, [2002] 2 App. Cas. 235, 242B, para. 11 (P.C.) (appeal taken from Belize): “ [T]here is perhaps no single class of offences that varies so widely both in character and in culpability as the class comprising those which may fall within the comprehensive common law definition of murder.”

33 This was accomplished in the United Kingdom by the passage of the Homicide Act 1957, 5 & 6 Eliz. 2, ch. 11. The death penalty was subsequently abolished in 1965 by the Murder (Abolition of Death Penalty) Act 1965, ch. 71, although it remained on the statute book for treason and piracy with violence until 1998. See Crime and Disorder Act, 1998, ch. 37, para. 36. It was similarly abolished in the British territories of Anguilla, die British Virgin Islands, the Cayman Islands, Montserrat, and the Turks and Caicos Islands in 1991 by The Caribbean Territories (Abolition of Death Penalty for Murder) Order 1991, S.I. 1991 No. 988, with its last remaining vestiges in Bermuda and the Turks and Caicos Islands abolished in 1999 and 2002, respectively. See BrowneAnthony, Death Penalty Abolished on All British Territory, Times (London), Oct. 23, 2002, at 15.

34 See LehrfreundSaul, International Legal Trends and the “Mandatory “Death Penalty in the Commonwealth Caribbean, 1 Oxford U. Commonwealth L.J. 171, 172 (2001).

35 Belize, for example, adopted a distinction between capital (Class A) and noncapital (Class B) murders in 1994.

36 Commonwealth Caribbean governments have argued that mitigating factors are considered postsentencing by mercy committees and other executive bodies responsible for hearing applications for pardon.

37 Woodson v. North Carolina, 428 U.S. 280, 300–04 (1976).

38 See Lehrfreund, supra note 34, at 171.

39 See id. at 177–79.

40 Optional Protocol to the International Covenant on Civil and Political Rights, supra note 29.

41 Charter of the Organization of American States, supra note 29.

42 American Convention on Human Rights, supra note 29.

43 American Declaration of the Rights and Duties of Man, supra note 29.

44 (Eversley) Thompson v. St. Vincent and the Grenadines, Communication No. 806/1998, UN Doc. CCPR/C/70/D/806/1998.

45 Id., para. 8.2.

46 Id.

47 They were Lord Colville (U.K.), David Kretzmer (Isr.), Abdelfattah Amor (Tunis.), Maxwell Yalden (Can.) and Abdallah Zahkia (Leb.).

48 Hilaire v. Trinidad and Tobago, Case 11.816, Report No. 66/99 (Inter-Am. C.H.R., Apr. 21, 1999) (unreported). See also Lehrfreund, supra note 34, at 177.

49 McKenzie et al. v. Jamaica, Cases 12.023, 12.044, 12.107, 12.126, 12.146, Report No. 41 / 00 (Inter-Am. C.H.R., Apr. 13, 2000) OEA/Ser.L/V/II.106, doc. 3 rev., 918 (2000).

50 Baptiste v. Grenada, Case 11.743, Report No. 38/00 (Inter-Am. C.H.R., Apr. 13, 2000) OEA/Ser.L/V/II.106 doc. 3 rev., 721.

51 Edwards et al v. The Bahamas, Cases 12.067, 12.068, 12.086, Report No. 48/01 (Inter-Am. C.H.R., Apr. 4, 2001) OEA/Ser.L/V/II.lll doc. 20 rev., 603.

52 Id., para. 147.

53 Id., para. 178.

54 Spence and Hughes v. The Queen, Crim. App. Nos. 20 of 1998 and 14 of 1997, judgment rendered Apr. 2, 2001 (E. Carib.). For commentary, see Lehrfreund, supra note 34.

55 Id., para. 19.

56 Spence was not appealed with respect to the mandatory nature of the death penalty because in the months following the decision of the Eastern Caribbean Court of Appeal concerning his appeal as to sentence, his appeal as to his conviction was allowed by the Privy Council, resulting in the matter being remitted to the St. Vincent courts for a possible retrial. [2001] U.K.P.C. 35. Spence was not therefore under a sentence of death at the time of the Hughes appeal because he was not convicted of any crime.

57 For commentary, see BailinAlex, The Inhumanity of Mandatory Sentences, 2002 Crim. L.R. 641 ; DerekO’Brien, The Death Penalty and the Constitutions of the Commonwealth Caribbean, 2002 Pub. L. 678 ; and RoeThomas, Human Rights and the Mandatory Death Penalty in the Privy Council, 61 Cambridge L.J. 505 (2002).

58 Reyes v. The Queen [2002] 2 App. Cas. 235 (P.C.) (appeal taken from Belize).

59 Section 21 of the Belize constitution provides that

Nothing contained in any law in force immediately before Independence Day nor anything done under the authority of any such law shall, for a period of five years after Independence Day, be held to be inconsistent with or done in contravention of any of the provisions of this Part (referring to Part II of the Constitution entitled “Protection of Fundamental Rights and Freedoms”).

Belize attained its independence on September 21, 1981.

60 Reyes, para. 43.

61 Id., paras. 17-24.

62 Id., para. 28.

63 R. v.Smith, [1987] 1 S.C.R. 1045 (Can.) (concerning the constitutionality of a seven-year minimum sentence for importing narcotics). The Privy Council also cited (at para. 30) the reference made in Smith to the earlier death penalty decision of Miller and Cockriell v. The Queen, [1977] 2 S.C.R. 680 (Can.) concerning the definition of cruel and unusual punishment as that which was “so excessive as to outrage standards of decency,” but failed to note that the holding in that case was that a mandatory death sentence for the killing of a police officer or prison guard was not cruel and unusual punishment under the 1960 Canadian Bill of Rights.

64 Woodson v. North Carolina, 428 U.S. 280 (1976) and Roberts v. Louisiana, 428 U.S. 325 (1976), although in Roberts, the Court held that mandatory death penalties could under certain circumstances survive constitutional scrutiny.

65 State v. Makwanyane, 1995 (3) S.A.L.R. 391 (C.C.).

66 Mithuv. State of Punjab, [1983] 2S.C.R.690 (India), although in this case, the successful ground for challenging a mandatory death penalty was the right to life rather than the prohibition on cruel or inhuman treatment.

67 356 U.S. 86, 101 (1958).

68 See Runyowa v. The Queen, [1967] 1 App. Cas. 26 (P.C. 1966) (appeal taken from S. Rhodesia) and Ong Ah Chuan v. Public Prosecutor, [1981] App. Cas. 648 (P.C. 1980) (appeal taken from Sing.).

69 Reyes v. The Queen, [2002] 2 App. Cas. 235, 242B, para. 45.

70 Lauriano v. Attorney Gen., [1995] 3 Belize L.R. 77 (C.A.).

71 Reyes, para. 47.

72 [2002] 2 App. Cas. 259 (P.C.) (appeal taken from St. Lucia).

73 Criminal Code of St. Lucia, §178 as cited in id., para. 2.

74 ST. LUCIA CONST, para. 10.

75 Hughes, para. 35. See Pinder v. The Queen, [2002] U.K.P.C. 46, for subsequent judicial confirmation that derogations from constitutional guarantees should receive a narrow construction.

76 Hughes, para. 47.

77 Id., para. 48.

78 Id., para. 46.

79 [2002] 2 App. Cas. 284 (P.C.) (appeal taken from St. Kitts & Nevis).

80 Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago, Judgment of June 21, 2002 (Inter-Am. Ct. H.R) Ser. C No. 94, paras. 103, 106, available at <http://www.corteidh.or.cr>.

81 The cases were submitted to the inter-American system before Trinidad and Tobago’s denunciation of the American Convention on Human Rights took effect in May 1999.

82 One prisoner (Joey Ramiah) had been executed by Trinidad and Tobago while the case was pending.

83 Two prisoners have since been resentenced for manslaughter. See RichardJ. Wilson & PerlinJan, The Inter-American Human Rights System: Activities from Late 2000 Through October 2002, 18 Am. U. Int’l L.R. 651, 692 (2003).

84 PatRoxborough-Wright, Death Penalty Not Mandatory Says Judge, Jam. Observer, Dec. 17, 2002, available at <http://www.jamaicaobserver.com/> (archives). The judgment, concerning one Dale Boxx, is unreported. See also How Unconstitutional Is the Death Penalty, Gleaner (Jam.), Nov. 30, 2003, available in LEXIS, News Library, North/South America News File.

85 This case concerned one Lambert Watson. GayleBarbara, Death Penalty Upheld—Appeal Court Rules Hanging as “Not Unconstitutional,” Gleaner (Jam.), Dec. 17, 2002, available in LEXIS, News Library, North/South America News File.

86 The Watson case has been appealed to the Privy Council. GayleBarbara, Death Penalty under Privy Council Review, Gleaner (Jam.), Jan. 14, 2003 ; also GayleBarbara, Privy Council to Decide Death Penalty Review, Gleaner (Jam.), Jan. 22, 2003, available in LEXIS, News Library, North/South America News File.

87 Roodal v. Trinidad and Tobago, C.R.A. No. 64 of 99, July 17, 2002 (unreported). See also Trinidad: Only Parliament Can Change Death Penalty—Chief Justice, BBC Worldwide Monitoring, July 19, 2002, available in LEXIS, News Library, Individual Reports File.

88 Roodal v. Trinidad and Tobago, Privy Council Appeal No. 18 of 2003, Nov. 20, 2003, available at <http://www.privycouncil.co.uk/files/other/balkissoon%20roodal.rtf>.

89 Id., para. 36.

90 Id., para. 47.

91 Reyes v. The Queen, [2002] 2 App. Cas. 235, 242B, para. 26, relying on Trop v. Dulles, 356 U.S. 86, 101 (1958), but extending Trop beyond its cruel and unusual punishment context.

92 Contrast this with Stanford v. Kentucky, 492 U.S. 361, 369 (1989), where the Supreme Court “emphasized that it is American conceptions of decency diat are dispositive” (emphasis added).

93 Spence and Hughes v. The Queen, Crim. App. Nos. 20 of 1998 and 14 of 1997, para. 214, judgment rendered Apr. 2, 2001 (E. Carib.).

94 Id.

95 536 U.S. 304(2002).

96 Id. at 348, reciting a remark he made in dissent in Thompson v. Oklahoma, 487 U.S. 815, 869 (1988).

97 539 U.S. , 123 S.Ct. 2472 (2003).

98 Id. at 2495 (incorporating a quotation from a previous decision). For a more optimistic view on the future use of foreign law, see Justice Ruth Bader Ginsburg, Remarks for the American Constitution Society Looking Beyond Our Borders: The Value of a Comparative Perspective in Constitutional Adjudication (Aug. 2, 2003), available at <http://www.americanconstitutionsociety.org/pdf/Ginsburg%20transcript%20final.pdf>. 99 Ong Ah Chuan v. Public Prosecutor, [ 1981 ] App. Cas. 648 (P.C. 1980) (appeal taken from Sing.), at 669. See LesterAnthony, The Overseas Trade in the American Bill of Rights, 88 Colum. L.R. 537, 542 (1988).

100 Reyes v. The Queen, [2002] 2 App. Cas. 235, 242B, para. 45.

101 State v. Makwanyane, 1995 (3) S.A.L.R. 391 (C.C.), para. 88 per Chaskalson, P.; cited with approval in Spence and Hughes v. The Queen, Crim. App. Nos. 20 of 1998 and 14 of 1997, para. 13 per Byron, C. J., judgment rendered Apr. 2, 2001 (E. Carib.); and in Reyes, para. 26 per Lord Bingham of Cornhill.

102 For example, as of February 2003, there were thirty-four prisoners on death row in Trinidad and Tobago for whom the five-year period had expired, and another fifty-two prisoners with matters pending before the local Court of Appeal, the Privy Council, and the international human rights bodies. Trinidad: Government Yet to Decide on What to Do with Convicted Murderers, BBC Worldwide Monitoring, Feb. 19, 2003, available in LEXIS, News Library, Individual Reports File. There has not been an execution in Trinidad and Tobago since July 1999, although nine members of a drug gang were executed en masse in June 1999. Trinidad Hangs Killer, BBC News, July 28, 1999, available at <http://news.bbc.co.uk/1/hi/world/americas/405494.stm>.

103 Barb. Const. (Amend.) Act, 2002-14, Supplement to Official Gazette No. 74 (Sept. 5, 2002), at 216–19.1 am grateful to Dr. David Berry of the Faculty of Law at the University of the West Indies (Cave Hill) for providing a copy of this legislation.

104 The last execution in Barbados took place in 1984. See Hung Up on Getting Strung Up, Economist, Oct 5, 2002 (U.S. ed.), at 35 ; Barbados Removes Restrictions to the Death Penalty; Ruling not Retroactive, BBC Worldwide Monitoring, Aug. 13, 2002, available in LEXIS, News Library, Individual Reports File; RichardsPeter, Rights: Barbados Acts to Prevent Delay in Executions, Inter Press Service, Aug. 5, 2002, available in LEXIS, Inter Press Service, North/South America Stories.

105 The constitution of Barbados is found in the schedule to The Barbados Independence Order 1966, S.I. 1966 No. 1455, available at <http://www.barbados.gov.bb/bgis/government/barconstmain.htm>.

106 Given the difficulty in obtaining recent Caribbean legislation, the revised section 15 is reproduced below:

  • 1.

    1. No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.

  • 2.

    2. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorizes the infliction of any punishment or the administration of any treatment that was lawful in Barbados immediately before 30th November 1966.

  • 3.

    3. The following shall not be held to be inconsistent with or in contravention of this section:

  • a.

    a. the imposition of a mandatory sentence of death or the execution of such a sentence;

  • b.

    b. any delay in executing a sentence of death imposed on a person in respect of a criminal offence under the law of Barbados of which he has been convicted;

  • c.

    c. the holding of any person who is in prison, or otherwise lawfully detained, pending execution of a sentence of death imposed on that person, in conditions, or under arrangements, which immediately before the coming into operation of the Constitution Amendment Act, 2002

  • i.

    i. were prescribed by or under the Prisons Act, as then in force; or

  • ii.

    ii. were otherwise practised in Barbados

  • in relation to persons so in prison or so detained.

Barb. Const. (Amend.) Act, 2002-14, Supplement to Official Gazette No. 74 (Sept. 5, 2002), at 216–19.

107 Id.

108 Belize Seeks to Stop Murder Appeals Going to Britain’s Privy Council, BBC Worldwide Monitoring, Sept. 5, 2002, available in LEXIS, News Library, Individual Reports File; No Sway to the Death Penalty, Gleaner (Jam.), Sept. 29, 2002, available in LEXIS, News Library, North/Soudi America News File.

109 Reyes v. The Queen, [2002] 2 App. Cas. 235, 242B, para. 15.

110 Amnesty International, Belize Proposal for Return to Practise of Death Penalty, AI Index: AMR 16/003/2002, Sept. 11, 2002.

111 Attorney-General Defends Belize’s Position on Death Penalty, BBC Worldwide Monitoring, Oct. 24, 2002, available in LEXIS, News Library, Individual Reports File and Caribbean Justice Bulletin, Mar. 2003, available at <http://www.reprieve.org.uk/cj/mar03.htm>.

112 Trinidad and Tobago Moving Towards Resumption of Hangings, BBC Worldwide Monitoring, Jan. 14, 2003, available in LEXIS, News Library, Individual Reports File.

113 Adams, supra note 3, BurkemanOliver, Jamaica in Bid to End UK Veto on Death Penalty, Guardian (London), Dec. 23, 2002, at 14 , and Jamaica Begins Process Towards Resumption of Hangings, BBC Worldwide Monitoring, Dec. 10, 2002, available in LEXIS, News Library, Individual Reports File.

114 Caribbean Justice Bulletin, supra note 111.

115 Not long after the Hughes decision, the High Court of St. Lucia sentenced two men to death by hanging for the murder of a Catholic priest and nun. St. Lucia: High Court Sentences Two Men to Death by Hanging BBC Worldwide Monitoring, Apr. 30, 2003, available in LEXIS, News Library, Individual Reports File; Rasta Prophets Facing Gallows over Murder of Nun and Priest, Irish Independent, May 1, 2003, available at <http://www.unison.ie/irish_independent/> (archives).

116 Simmons, supra note 5, at 284.

117 The proposed court, to be based in Trinidad and Tobago, will comprise two parts: a court of original jurisdiction to adjudicate trade disputes in the region and a court of appellate jurisdiction to serve as a final Court of Appeal for those states that wish this. See Antoine, supra note 2, at 227–49.

118 See RawlinsHugh, The Caribbean Court of Justice: The History and Analysis of the Debate (2000), available at <http://www.caricom.org/archives/ccj_rawlins.pdf>.

119 See Revised Treaty of Chaguaramas Establishing the Caribbean Community, Including the CARICOM Single Market and Economyjuly 5, 2001, available at <http://www.caricom.org/archives/revisedtreaty.pdf>. The CARICOM Single Market and Economy (CSME) is scheduled to come into effect in 2005. It is envisioned that the Caribbean Court of Justice will serve a similar role in the Caribbean Community as the European Court of Justice does within the European Community.

120 AI2002 Report, supra note 4, at 7. But see ShielP. G. F., Remarks Outrage Caribbean judges, Age (Melbourne), Apr. 15, 2003, at 4 (reporting Caribbean reaction to a remark by Geoffrey Robertson taken to mean that die court was being set up to carry out the death penalty).

121 July 14, 2001 (in force July 23, 2002), available at <http://www.caricom.org/archives/agreement-ccj.htm>. The eight states are Barbados, Belize, Dominica, Guyana, St Lucia, St. Vincent and the Grenadines, Trinidad and Tobago, and Jamaica. See Caribbean Court of Justice One Step Closer, Gleaner (Jam.), May 12, 2003, available in LEXIS, News Library, North/South America News File; Jamaica Ratifies Agreement for Caribbean Court of Justice, BBC Worldwide Monitoring, May 21, 2003, available in LEXIS, News Library, Individual Reports File.

122 Caribbean government leaders expect the requisite domestic legislation to be enacted by all Parliaments by January 2004. CCJA Step Closer to Implementation, Gleaner (Jam.), Nov. 18, 2003, available in LEXIS, News Library, North/South America News File. Ads for recruiting the Court’s president began circulation in all fifty-four Commonwealth states in December 2003. Caribbean: Process of Advertising Jor President of CCJ Begins, BBC Worldwide Monitoring, Dec. 6, 2003, available in LEXIS, News Library, Individual Reports File.

123 Anthony Bats for Carib Court: CCJ Concerns Unfounded, Argues St. Lucia’s PM, Jam. Observer, June 30, 2003, available at <http://www.jamaicaobserver.com/> (archives).

* I wish to thank the School of Law at the University of Puerto Rico for the opportunity to present an earlier version of this paper as part of the School’s Spring 2003 guest lecture series. Thanks are also due to Grant Huscroft and Dale Ives for their comments and to Andrea Gonsalves for her excellent research assistance, funded with appreciation by the Law Foundation of Ontario.

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