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The Committee on the Prerogative of Mercy

The Committee on the Prerogative of Mercy

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The Law and You – The Mercy Committee

by Parnel R. Campbell, QC. 2.FEB.07

1. Section 65 of the Constitution of St. Vincent and the Grenadines empowers the Governor General to have mercy upon persons convicted of criminal offences or sentenced for criminal offences.

2. The Governor General exercises the powers of mercy by any of five methods:

a) he can grant an absolute pardon by wiping out the crime entirely so that in the eyes of the law the person had never committed the offence at all;

b) he can grant a conditional pardon, that is, a pardon subject to lawful conditions;{{more}}

c) he can grant a respite, that is, he can suspend the execution of any punishment imposed on a convicted person by a court of law;

d) he can reduce the severity of any punishment imposed by a court of law on any person; or

e) he can remit any punishment imposed on any person by a court of law; in other words, he can shorten any period of imprisonment imposed on any person by a court of law.

3. This is what section 65 of the Constitution states:

“65. (1) The Governor-General may –

a) grant a pardon, either free or subject to lawful conditions, to any person convicted of any offence;

b) grant to any person a respite, either indefinite or for a specified period, of the execution of any punishment imposed on that person for any offence;

c) substitute a less severe form of punishment for any punishment imposed on any person for any offence; or

d) remit the whole or any part of any punishment imposed on any person for any offence or of any penalty or forfeiture otherwise due to the Crown on account of any offence.

(2) The powers of the Governor-General under subsection (1) of this section shall be exercised by him in accordance with the advice of such Minister as may from time to time be designated by the Governor-General acting in accordance with the advice of the Prime Minister.”

4. You will observe what sub-section (2) states. That sub-section means that the Governor-General can only use the powers of mercy on the advice of the Minister who is named by the Prime Minister as Chairman of the Mercy Committee.

5. Since Independence in 1979, all Prime Ministers have named themselves as Chairmen of the Mercy Committee:

• The Right Hon. R. Milton Cato

• Sir. James Mitchell

• Dr. the Hon. Ralph E. Gonsalves

6. Section 66 of the Constitution sets out the membership of the Mercy Committee as follows;

(1) The Chairman (Prime Minister)

(2) The Attorney General

(3) A Medical Doctor

(4) A Minister of Religion

(5) One or two other persons, at least one of whom shall be a Minister of Government.

The members of the Mercy Committee are appointed by the Governor-General only on the advice of the Prime Minister.

7. This is what section 66 states:

“66 (1) There shall be an Advisory Committee on the Prerogative of Mercy for Saint Vincent (hereinafter in this section referred to as the Committee) which shall consist of –

a) the Minister for the time being designated under section 65 (2) of this Constitution, who shall be Chairman;

b) the Attorney-General; and

c) not less than three nor more than four other members appointed by the Governor-General by writing under his hand, of whom at least one shall be a Minister and at least one shall be a person entitled to practice in Saint Vincent as a Medical Practitioner.

(2) A member of the Committee appointed under subsection (1) (c) of this section shall hold this seat thereon for such period as may be specified in the instrument by which he was appointed:

Provided that his seat shall become vacant –

a) in the case of a person who at the date of his appointment was a Minister, if he ceases to be a Minister; or

b) in the case of a person who, at the date of his appointment, was entitled to practice in Saint Vincent as a Medical Practitioner, if he ceases to be so entitled; or

c) if the Governor-General, by writing under his hand, so directs.

(3) The Committee may act notwithstanding any vacancy in its membership or the absence of any member and its proceedings shall not be invalidated by the presence or participation of any person not entitled to be present at or to participate in those proceedings.

(4) The Committee may regulate its own procedure.

(5) In the exercise of his functions under this section, the Governor-General shall act in accordance with the advice of the Prime Minister.”

8. Section 67 of the Constitution states as follows:

“67. (1) Where any person has been sentenced to death (otherwise than by a court-martial) for an offence, the Minister for the time being designated under section 65 (2) of this Constitution shall cause a written report of the case from the trial judge (or the Chief Justice, if a report from the trial judge cannot be obtained) together with such other information derived from the record of the case or elsewhere as he may require, to be taken into consideration at a meeting of the Advisory Committee on the Prerogative of Mercy; and after obtaining the advice of the Committee he shall decide in his own deliberate judgment whether to advise the Governor-General to exercise any of his powers under section 65 (1) of this Constitution.

(2) The Minister for the time being designated under section 64 (2) of this Constitution may consult with the Advisory Committee on the Prerogative of Mercy before tendering any advice to the Governor-General under that subsection in any case not falling within subsection (1) of this section but he shall not be obliged to act in accordance with the recommendation of the Committee.”

9. I wish to draw attention to the last four lines of sub-section (1) of section 67.

The words are:

“and after obtaining the advice of the Committee he shall decide in his own deliberate judgment whether to advise the Governor-General to exercise any of his powers under section 65 (1) of this Constitution.”

10. Similarly, sub-section (2) of section 67 makes it clear that the designated Minister – the Prime Minister – is not bound to follow the recommendations of the Mercy Committee before he gives advice to the Governor General on matters pertaining to mercy.

11. In other words, once a Minister has been designated to advise the Governor General in matters pertaining to the Prerogative of Mercy, that Minister is free to ignore the recommendations made to him by the Mercy Committee, and to advise the Governor General entirely as he sees fit. That is what the Constitution says in plain words. You do not have to be a lawyer or a constitutional expert to interpret those sections of the Constitution.

12. One person writing in a local newspaper last weekend has quoted those sections of the Constitution and has made the statement that the Prime Minister cannot designate himself to be Chairman of the Mercy Committee. Clearly, that person is mistaken. Where the Constitution gives the Prime Minster the power to designate a Minister as Chairman of the Mercy Committee then there is nothing to prevent the Prime Minister from designating himself as Chairman. Mr. Cato did so; Mr. Mitchell did so, Dr. Gonsalves has done so.

13. Prime Minister Gonsalves has repeatedly stated on public occasions that he would prefer not to have the powers of life and death which the Constitution has conferred upon the designated Minister. You see, since the Constitution says that the Governor General is bound to follow the advice given to him by the designated Minister (as we have seen, this means the Prime Minister) even in matters of life and death, and since the designated Minister is not bound to accept the recommendations of the Mercy Committee, then the Prerogative of Mercy is in fact exercised only on the advice of the Prime Minister.

14. The Constitutional Review Commission in its Final Report dated 28th February 2005 said this in paragraph 51 on page 13:

“The Advisory Committee on the Prerogative of Mercy should be abolished. Its functions should be performed by NACE, either by the entire membership or by a Standing Committee.”

In our Revised Final Report of October 2006, the CRC repeated that recommendation. (NACE means the National Advisory Council of Elders).

15. Notwithstanding the fact that the Constitution has conferred the power of absolute discretion upon the designated Minister in mercy issues, as far as I am aware no Prime Minister has ever made a recommendation to the Governor General which did not have the approval of the Mercy Committee – not Mr. Cato, not Sir James, and not Dr. Gonsalves. Every Prime Minister, as designated Minister, has acted only upon the recommendation of the Mercy Committee when he has advised the Governor General as to how the Prerogative of Mercy should be exercised.

16. Another point has to be made. In exercising his powers to grant mercy, the Governor General cannot use his own discretion. He cannot make decisions on his own. The Governor General is bound to do what he is requested to do by the designated Minister. That is what the Constitution says. Thus, it is patent nonsense for anyone to quarrel with the Governor General over any decision he has made acting in accordance with the advice of the designated Minister on those matters. For anyone to call for the resignation of a Governor General because of dissatisfaction with a decision made by the Governor General acting on the advice of the Chairman of the Mercy Committee (the Prime Minister) is nonsense; it only demonstrates that such person is not acquainted with the provisions of the Constitution in that regard.

17. I have to remind you that we are an independent State. We have to be prepared to use our constitutional mechanisms sensibly. We have to be prepared to trust our leaders when they exercise Constitutional powers.

18. In the law there is a principle of constitutional and administrative law which says that official actions are deemed to be valid unless proven to be other wise. The principle is called the “presumption of validity.” Official actions are not struck down by the Courts unless and until satisfactory evidence is brought before the Courts to prove that those actions were invalid or null and void. You cannot merely allege that something was done wrongly: you have to prove your allegation. In other words, the maxim “he who alleges must prove” applies. You cannot merely allege; you must put forward the proof of your allegations.

19. The Mercy Committee has functioned since Independence with the assistance of a number of distinguished medical doctors and Ministers of Religion. Among the doctors who have served on the Mercy Committee are:

(1) Dr. A.C. Cyrus

(2) Dr. Harold Rampersaud

(3) Dr. Daniel Garraway

(4) Dr. St. Clair Thomas

(5) Dr. Frederick Ballantyne

(6) Dr. Christian Anderson

(7) Dr. Ellsworth Charles

Among the Ministers of Religion who have served are:

1. Major Denzil Walcott, Salvation Army

2. Rev. Bennett Primus, Methodist

3. Father Renison Howell, Roman Catholic

4. Bishop G.C.M. Woodroffe, Anglican

5. Dean Patrick McIntosh, Anglican

6. Rev. Cuthbert Edwards, Methodist

7. Bishop Sehon Goodridge, Anglican

8. Pastor Dermoth Baptiste, Adventist

9. Pastor Steve Phillips, Adventist

20. I served as Attorney General of St. Vincent & the Grenadines from May 1987 to September 1995. As Attorney General, I was automatically a member of the Mercy Committee throughout my tenure as Attorney General. I am still bound by the oath of secrecy I took back then, and in this broadcast, I will reveal only those matters which are part of the public record or which do not disclose anything of a confidential nature.

21. The first meeting of the Mercy Committee I attended was on 30th September 1988. That meeting consisted of:

Rt. Hon. Sir J. Mitchell, Chairman (he was not yet knighted at that time.)

Minister Herbert Young

Minister Louis Jones

Dr. Daniel Garraway

Rev. Father Renison Howell.

At that meeting, Prime Minister Mitchell informed the meeting that the Mercy Committee would not entertain any representations from any Constituency representative, because the Committee should not entertain political considerations.

22. At the meeting of the Mercy Committee on 21st October 1992, I sat in the Chair. The Prime Minister, Mr. Mitchell, was out of State and he had designated me to Chair that meeting in his absence.

23. At that meeting 21st October 1992, the Mercy Committee recommended the early release from prison of fifteen (15) prisoners on ground of National Security.

24. I will not name the persons, but I will give you their initials, as I do not want to cause any embarrassment to anyone. I will also give you the offences for which those prisoners had been convicted, the sentences they had received from the Courts, and the time they had already served. I awaited the return of the Prime Minister before I sent on my advice to the Governor General, Sir David Jack. When Prime Minister Mitchell returned to the State I invited him to review the material, which he did. He approved the recommendations of the mercy Committee and I duly sent on the advice to the Governor General.

These are the details:

(1.) Prisoner M.A. – 4 years for breaking and entering, 2 years & 8 months served

(2.) Prisoner C.S. – 6 months for wounding, 3 months & 19 days served

(3.) Prisoner R.T. – 6 months for indecent language, 2 months & 19 days served

(4.) Prisoner A.P. – 8 years for rape, 5 years and 5 months served

(5.) Prisoner H.N. – 8 years for incest, 4 years and 4 months served

(6.) Prisoner J.M. – 2 years for judgment debts, 1 year & 2 months served

(7.) Prisoner A.L. – 6 months for assault, 3 months and 3 days served

(8.) Prisoner W.L. – 8 years for breaking and larceny, 5 years & 6 months served

(9.) Prisoner S.H. – 6 months for theft, 3 months and 28 days served

(10.) Prisoner J.G. – 3 months for possession of stolen goods, 1 month and 17 days served

(11.) Prisoner H.B. – 5 years for arson, 2 years and 8 months served

(12.) Prisoner E.B. – 12 months for theft, 7 months and 15 days served

(13.) Prisoner P.B. – 7 years for breaking and larceny, 3 years & 9 months served

(14.) Prisoner F.A. – 20 years for rape, 11 years and 28 days served

(15.) Prisoner O.A. – 6 months for damage to property, 2 months & 17 days served

Those persons were all released from the prisons on the same day, 8th November, 1992. Other persons convicted of non-capital offences were also similarly released from time to time during my membership of the Mercy Committee.

25. But that is not all. Those were the non-capital offences. During my membership of the Mercy Committee no fewer than seventeen (17) persons who had been convicted of either murder or manslaughter were released from prison prematurely, on the recommendation of the Mercy Committee, between 1988 and 1995, for a variety of reasons, including national security considerations and compassionate considerations. Former Prime Minister Sir. James Mitchell cannot be accused of a lack of compassion, and he cannot be accused of insensitivity where the security of the nation was concerned.

26. On 11th September 2005, a certain Alex Lawrence was convicted on a drugs charge and was sentenced to 22 months imprisonment. He appealed and lost the appeal on 1st February 2006. The Court of Appeal does not deal with mercy, only law. On 28th November 2006 the Governor General, acting on the advice of the Prime Minister as designated Minister and Chairman of the Mercy Committee, released Lawrence from prison. Lawrence had been due to be discharged from prison on 20th March, 2007.

27. As a result of public controversy over the early release of Lawrence, the Prime Minister did two things:

a) He made a statement in which he said that he had acted on the recommendation of the Mercy Committee when he had advised the Governor General to release Lawrence some 33/4 months ahead of time; and that the Mercy Committee had done so on ground of national security; and

b) the Prime Minister invited the Leader of the Opposition for a briefing at a meeting which lasted for one and one-half hours, at which he provided the Leader of the Opposition with “significant information” according to what the Leader of the Opposition has stated publicly.

28. The Leader of the Opposition had served as a member of the Mercy Committee from 1998 to 2000 or 2001.

29. In the light of my own experiences as a former member of the Mercy Committee, I can find nothing new or strange or alarming about the early release of any prisoner. If a Prime Minister says that he acted on ground of national security on advising the early release of a prisoner on a drug conviction who had a mere 33/4 months of his sentence to serve, that is good enough for me. If that Prime Minister is Dr. the Hon. Ralph Gonsalves, then that is more than good enough for me. I will tell you why. Dr. Gonsalves is not known to be frivolous or eccentric in the discharge of his responsibilities as Prime Minister. I may disagree with the odd decision of Dr. Gonsalves’ administration, but no Prime Minister of this country has been as media-friendly as Dr. Ralph Gonsalves. The gentleman is positively obsessed with explaining the actions of his government and the thinking behind the policies and programmes of his administration. He holds a press conference after every visit overseas — and sometimes after visits to even the Grenadines! Indeed, you hear the complaint that he talks too much. I personally prefer a Head of Government who talks too much, to one who talks too little.

29. But there are some matters of State which a Minister of National Security cannot publicly discuss. Those who have served in Government know that only too well. Even in business, industry or labour relations, there are matters which arise from time to time which cannot be published among the members of the institution, let alone the public. Let us not pretend that we do not understand these things. Not even the law courts can compel the Prime Minister to divulge the deliberations of the Mercy Committee except where an individual has a case before the Mercy Committee and the courts deem it appropriate for the person to see what material has been placed before the Mercy Committee for its consideration of that individual’s petition.

30. I referred a while ago to the briefing given by the Prime Minister to the Leader of the Opposition. I understand that the Leader of the Opposition was to have been requested to take the Oath of Secrecy. Some have queried the propriety of the intention to ask Leader of the Opposition to take the Oath of Secrecy. In my respectful opinion that would have been the correct course of action. The Leader of the Opposition, like all other Members of Parliament who are not Ministers, take the Oath of Allegiance before sitting in a new Parliament. Ministers are required to take both the Oath of Allegiance and the Oath of Secrecy. Therefore it was quite in order for the Prime Minister to require the taking of the Oath of Secrecy by the Leader of the Opposition before matters of national security. As it turned out, the Leader of the Opposition was not actually requested to take the Oath of Secrecy; he however gave a gentleman’s undertaking to keep the information confidential and to his credit he has done so.

31. Those who allege that the Mercy Committee acted improperly in recommending the early release of Lawrence have a responsibility, even a duty, to put forward the evidence on which they have based their allegations. The onus is on them to state their case. If they say there was something corrupt or sinister about the early release, they have the burden of proving their case – “he who alleges must prove.” Even if you do not trust the Politicians on the present Mercy Committee, the non-politicians on the Committee, namely, Dr. Ellsworth Charles and Pastor Steve Phillips – are citizens of outstanding integrity. I personally cannot bring myself to believe that those persons, Dr. Charles and Pastor Steve Phillips, would act in ways which would bring disgrace upon themselves, or dishonour to the nation.

32. As a student of constitutional law and a former Attorney General, I fail to see what the whole furore is all about. Until those who object put forward in the public domain credible evidence to back their allegation that something was wrong, and that something was underhand, then I cannot take the protests seriously. I know what the Constitution says, I know how it has been working. Prime Ministers have been responsible in the discharge of these responsibilities, and we as a people have to learn to trust the integrity of our leaders, particularly in constitutional matters.

Thank you ladies and gentlemen. I hope you have achieved some knowledge and understanding of how the Constitution works in the area of the Prerogative of Mercy, and I hope you now have a better perspective of matters in public controversy.

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