Last week’S article summarized Court of Appeal Case No. 20 of 1998, Newton Spence v the Queen and No 14 of 1997, Peter Hughes v the Queen. These raised issues of a constitutional nature, with regard to the mandatory death sentence. The decision to quash the death sentence against the appellants was taken with one of the three judges dissenting.{{more}} I promised to highlight the arguments that were raised and I will start with the Chief Justice’s, which was supported by Justice Adrian Saunders.

The Chief Justice in his initial comments gave a brief description of the importance of the language of the constitution, as well as the fundamental rights and freedom that are grounded in international norms. He noted that while the principles of construction ought to be taken into consideration, that is, the type of language used in constructing the constitution, due attention has to be paid to the fundamental rights and freedom enshrined in our constitution. Fundamental rights have been included in our constitution so as to uphold the rights and dignity of human beings. He is supported and he noted the contribution of Lord Wilberforce in Minister of Home Affairs v Fisher (1979) 3 AER 21 at 25, who linked the rights and freedom guaranteed by the constitution to international legal norms such as that espoused by the Human Rights Convention in Europe and the United Nations Universal Declaration of Human Rights.

He believes that there has been focus on capital punishment because of a developing trend towards recognizing the value of human life. He illustrates this by pointing to the difference between the older cases and more recent cases. The older cases, he opined, reflect “values that are harsher, more oppressive and discriminatory and the modern cases which give effect to more evolving standard of decency, demonstrated by a favourable modification of the rules of stare decisis.” Stare decisis is the rule by which lower courts follow precedents established by a higher court, until they are overturned. He said that there are clear cases where courts have refused to follow older decisions.

After these preliminary comments, in which he sets the direction for his argument, he notes the role of parliament to make the laws and, in particular, sentencing policy, and that of the court to evaluate the laws. This means that where there are inconsistencies in the law, it is the role of the court to identify them. In explaining this, he establishes the role of the court in the cases in hand. The role of the justices was to decide whether the mandatory sentence of death was in contravention with the constitution.

Before our constitution was enacted, the death sentence was part of our laws and was carried over to the constitution by “a savings clause”. The Chief Justice, after considering the arguments on both sides, decided that the savings clause should be viewed in a “limited scope.” It does not prohibit the method of punishment by hanging, neither does it prohibit “the process by which a lawful sentence of death may be imposed so that a lawful sentence of death could be imposed where there is a hearing in which the offender had an opportunity to mitigate his sentence” (p. 11).

Chief Justice Byron concluded that changing the law was a role for the legislators. He recommended that there should be an opportunity for the convicted person to mitigate, as the death sentence should not be automatic when someone is found guilty. Mitigation takes into account the gravity of the offence, the character and record of the offender, among other factors.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com