"Thank God for the Privy Council!"... It is "thank God for the Privy Council" that gives our courts an aura of stability and is an added attraction for The Bahamas as a commercial centre

A case for keeping the Privy Council

tribune242 editorial


CRIME IS out of control. All of us are concerned, and naturally everyone wants a quick solution to something that has been a growing sickness for many years. As with all growing sicknesses, there is no quick fix.

Sir Etienne Dupuch died 19 years ago, having stopped writing this column about four years before his death. But for years before that he was warning the Bahamian people that unless something were done to reverse our social decay as far as crime was concerned the Bahamas was on a downward path in Jamaica's shadow. What we are complaining about today, he predicted in this column way back then.

Solutions are needed, but they can't be found in an atmosphere of hysteria. What has to be faced is that society as a whole is to blame - either by active participation, or by ignoring the signs in an attempt to insulate itself against the threatening storm. Only a united society can now overcome our problems.

This week a group of pastors got together to express their concern about crime, especially "about the spiralling, out of control murder rate."

They blame government for not doing what is legally necessary to carry out capital punishment in cases of those convicted of murder. They believe that "former and current governments" have failed the country by allowing the Privy Council to "force its 2006 interpretation of our constitution on us" and continuing to govern as if nothing can be done about it. In short they want the return of capital punishment, and the disappearance of the Privy Council.

What most people do not appreciate is that - as one lawyer pointed out -- when the Privy Council had the opportunity to rule that capital punishment was unconstitutional, it did not do so. However, what it did rule unconstitutional was that hanging was the mandatory sentence on a murder conviction. In other words there were no degrees of culpability for the crime. It was felt that instead of the mandatory sentence, the presiding judge should consider each case on its own merits and decide which warranted death and which a lesser sentence.

In other words it left us with capital punishment still on our statute books, but it forced the courts to put more thought into how the sentence was to be administered. It is now up to our legislators to craft legislation that makes it clear what types of murders would warrant the noose.

But we have to face the fact that capital punishment in this world is seeing its last days. Even in America, one of the last bastions of the death penalty, discussions are now underway about its abolition. Consciences are being pricked in the knowledge that many innocents have been condemned to death by contaminated evidence and faulty judgments.

Many Bahamians are calling for the Bahamas to cut all ties with the Privy Council so that our penal system can again start to "hang 'em high." This of itself would be a capital blunder - it would remove the most important plank that makes the Bahamas attractive as a commercial centre. Many international businesses would not locate here if our courts did not have the added attraction of the Privy Council as the final court of appeal.

As one international businessman - despairing of his litigation in our court system - commented: "Thank God for the Privy Council!"

It is "thank God for the Privy Council" that gives our courts an aura of stability and is an added attraction for the Bahamas as a commercial centre.

Without the Privy Council as our final and truly independent high court, where would we turn? The Bahamas certainly could neither afford nor mann a local high court with Bahamians. And who can guarantee that a panel of Caribbean judges at the Caribbean court would not rule in the same manner as the Privy Council law Lords in London when it comes to capital cases? Many of them are even now debating the abolition of capital punishment. And so, even with a regional court there is no guarantee that the Bahamas will be able to hang 'em high. That is why we believe that the only way to keep the dangerous murderer away from society is to have a life sentence that truly lasts to the end of the convict's natural life.

But even so the death penalty will continue to haunt the Bahamas. Through the FTA many trade agreements have social justice clauses to protect children, workers and many other groups. Many European countries will not enter into agreements with a country that imposes the death penalty.
Some years ago we wrote in this column about a European ambassador who was paying us a courtesy call. At that time capital punishment was very much an issue. He wanted to know when the Bahamas was going to abandon capital punishment. When we told him of the feelings of the Bahamian people, his comment was that the European organisation to which his country was a member would force the issue -- the Bahamas would no longer qualify for loans.

And so for those who want to be rid of the Privy Council so that they can hang their criminals, they would be advised to think long and hard. They will be denying this country one of its most valuable assets, the upkeep of which costs us nothing, in exchange for what? Certainly no guarantee that we shall be able to tie the hangman's noose around the neck of some unfortunate wretch.

September 27, 2011

tribune242 editorial

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