A closer look at the Constitution – Part 4

I would backtrack a little to a section of the proposed constitution that is often cited as a reason to vote for the constitution, but you would have to be the judge on this one as I prefer to do this than force my opinion on my readers. It has to do with capital punishment and I feel strongly that the majority of people in SVG are in favour of the death penalty.{{more}} I have not seen or done any formal survey but most of the persons that I have spoken to believe that the death penalty should be actively enforced as it will prevent some of the wanton killing of other human being. They point to the fact that there has been no hanging in St. Vincent and the Grenadines in the recent past which might have contributed to the rise in the number of killings. I will give you some of the insights as to what is proposed in the new constitution and I will also give you the present situation as to capital punishment.

Right to life

One of the fundamental rights of the individual is the right to life. Section 26 of the proposed constitution states that a person cannot be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under any law of which he has been convicted. The amendment offers more substance to this. It states that a person shall not be regarded as having been deprived of his life in contravention of this section if he is subjected to capital punishment in accordance with section 29 of the proposed constitution.

Protection from inhuman treatment

The amendment in section 29 protects a person from torture, inhuman or degrading punishment or treatment. Subsection 6 permits a judge to hear evidence and subsection 4 allows the judge to impose the death penalty after he determines that the murder is capital.

The death penalty and the Constitution

Section 59 of the Criminal Code of Saint Vincent and the Grenadines 1990 Edition makes the death penalty mandatory in cases of murder. However, section 5 of the constitutional order 1979 provides for protection against inhuman and degrading treatment. In April 2001, the Court of Appeal (Sir Dennis Byron CJ and Justice Adrian Saunders JA (AG) (Justice Redhead dissenting) in Peter Hughes and Newton Spence v the Queen, Criminal Appeal 20 of 1998 and 14 of 1997 held that the mandatory death sentence for murder constituted inhuman and degrading punishment or treatment. They ruled that the automatic imposition of the death penalty for the offence of murder was unconstitutional. The Privy Counsel in the same cases approved the decision of the Court of Appeal.

“Not the worst of worst”

The court was given the discretion to impose a sentence other than death for the offence of murder. It requires the trial judge to conduct sentencing hearing and to determine the appropriate sentence to impose on a person who is convicted of murder. This has not abolished capital punishment, but as seen in the case of Daniel Dick Trimmingham, their Lordships of the Privy Council considered that the killing of an elderly man in the course of a robbery was not the “worst of the worst.” They did not call for the ultimate penalty. They felt that it was not planned or premeditated. They also felt that there was “no prolonged trauma or humiliation of the victim prior to death.” But he should be kept away from society with imprisonment for life.

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