EDITORIAL

In its decision issued on Wednesday last in the joint appeals against sentence for murder of Nervais and Severin v The Queen, the country’s apical court, the Caribbean Court of Justice (CCJ), applied the final rites of unconstitutionality to the provision in section 2 of the Offences Against the Person Act, Cap 141. It will be recalled that this provision – “Any person convicted of murder shall be sentenced to, and suffer, death” – mandates that on a verdict of guilty of murder against the accused, the sitting judge must pronounce a sentence of death by hanging.

It will be recalled too that the Inter American Court of Human Rights (IACHR) had, since November 2007, determined that this provision violated certain Articles of the American Human Rights Convention because it provided a mandatory sentence for murder and failed to differentiate between intentional killings punishable by death, and intentional killings not punishable by death based on the particular circumstances of the crime. While capital punishment remained lawful in Barbados, the Court ruled that the mechanical application of the sentence of death to all murder cases amounted to an arbitrary deprivation of life in infringement of the Convention.

The IACHR further required Barbados to invalidate the offending section so as to bring its laws into conformity with the Convention, and noted that its failure to do so would also constitute a violation of the Convention.

And it gave short shrift to the argument that the provision was saved from constitutional inquiry by virtue of section 26 because it had been enacted before the Constitution came into effect. In its view, this served, in combination with section 2 of the OAPA, to deny citizens the right to seek judicial protection of the right to life and therefore violated Article 2 of the Convention- Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.

In consequence, Barbados was ordered to adopt within a reasonable time legislative or other measures necessary to ensure that our Constitution and laws were brought into compliance with the Convention and, specifically, to remove the immunising effect of section 26 of the Constitution.

As the CCJ expressly noted in its judgment last week, Barbados had not only given the necessary undertaking to comply with the rulings of the IACHR, but had also introduced cognate legislation and had not executed any one of the 31 persons sentenced to death between 2000 and 2017. From this, their Lordships concluded that “it was indisputable that Barbados had through its actions acknowledged that the mandatory sentence of death under section 2 of the OAPA and the immunising effect of section 26 violated its obligations under international law, and had given undertakings to the IACHR and to the CCJ to rectify these violations which was reflected in the Barbados Privy Council’s consistent commutation of the mandatory death penalty sentence when imposed.”

Hence, little remained for the CCJ to do in this regard other than to declare the provision unconstitutional.

From hereon in, Barbados will have degrees of murder; only the more heinous of which will merit the death penalty and the jurisdiction of determining the appropriate sentence will be returned to its rightful source, the judicial power.

As Justice Anderson wisely observed, “…the power to sentence was an exclusively judicial power [that] was protected against legislative encroachment in the form of section 2 of the OAPA by the separation of powers doctrine.”