Showing posts with label College of the Bahamas. Show all posts
Showing posts with label College of the Bahamas. Show all posts

Thursday, October 25, 2012

Constitutional reform - pt. 10... ...The government should commission The College of the Bahamas and the Eugene Dupuch Law School to conduct a scientific study to determine the comparative deterrence between the death penalty and life imprisonment ...to inform public education and policy on the issue of the death penalty... ...

Constitutional reform, pt. 10



BY ALFRED SEARS



The Bahamas has executed by hanging 50 condemned persons from December 1929 to January 6, 2000, pursuant to the sentence of death pronounced by the Supreme Court of The Bahamas.  There is presently one condemned prisoner awaiting execution.  The murder rate is currently at 94 and climbing.  Therefore, the fear of violent crime has elicited a public cry for a solution to crime.  For some the resumption of hanging is the answer, in spite of the compelling evidence that capital punishment is not a deterrent to the rising rate of violent crime and the risk of wrongful convictions.

Professor Ann Spackman, in her book “Constitutional Development of the West Indies 1922-1968” (1975) at page 21, argues that one of the legacies of plantation slavery, colonialism and racial oppression in the Caribbean is the continuing  “emphasis on coercion and control” and the existence of harsh laws enforced in a punitive spirit during most of the historical experience of the Caribbean since 1492.   Lloyd Barnett, Q.C., in an essay entitled “The Present Position Regarding the Enforcement of Human Rights in the Commonwealth” in the West Indian Law Journal (November 1980), counters that the Commonwealth Caribbean, in addition to having legacies of slavery and colonialism, has also been the beneficiary of the common law which flowered into passionate self-determination and aspiring constitutionalism.

However, the challenge facing constitutional jurisprudence in the Caribbean is to move away from the English techniques of statutory interpretation, applicable to ordinary legislation, when interpreting the Constitution that requires a more flexible and purposive interpretation, informed by international human rights instruments and the evolving global standard of human rights, human decency and norm of respect.  The Privy Council, in A.G. of Gambia v. Jobe (1985), held that there should be a liberal and contextual construction of the Constitution to give effect to the intent and purpose of the Constitution.

The tension between the punitive application of the law and restorative justice approach is most vividly illustrated around the issue of the death penalty in The Bahamas.  Articles 16, 17 and 30 of the Bahamian Constitution provide:

16. (1) No person shall be deprived intentionally of his life save in execution of the sentence of a court in respect of a criminal offense of which he has been convicted.

(2) A person shall not be regarded as having been deprived of his life in contravention of this Article if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justified...

17. (1) No person shall be subjected to torture to inhuman or degrading treatment or punishment.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that the law in question authorizes the infliction of any description of punishment that was lawful in the Bahama Islands immediately before 10th July 1973.

30. (1)... Nothing contained in or done under the authority of any written law shall be held to be inconsistent with or in contravention of any provision of Articles 16 to 27 (inclusive) of this Constitution to the extent that the law in question –

(a) is a law (in this Articles referred to as ‘an existing law’) that was enacted or made before 10th July 1973 and has continued to be part of the law of The Bahamas at all times since that day.

Saving clauses, such as contained in Article 17 (2) and the general saving clause contained in Article 30 (a), which were intended to be transitional until law reform removed existing laws inconsistent with the Constitution, are sometimes used to limit the enforcement of personal liberties granted by the Constitution.

Chief Justice Telford Georges, in an essay entitled “The Scope and Limitations of the State Machinery” in Human Rights and Development (1978) at page 45, argued, with respect to a similar clause in the Constitution of Trinidad & Tobago, that such clauses “... considerably limits the scope of the machinery of judicial review as a method of enforcement of the rights apparently enshrined in the Constitution.  The judicial view... is that the constitutions create no new rights.  They merely preserve existing rights.”

Article 30 (a) is construed as saving Section 312 of the Penal Code that pronounces that the death penalty is the punishment for murder as being compatible with and not in contravention of any of the fundament rights and freedoms contained in Articles 15 to 27.  Until 2011 the mandatory sentence of death by hanging was applied upon the conviction of murder and treason.

However, the Privy Council, informed by the evolving jurisprudence in Europe, has forced the Commonwealth Caribbean to conform to the evolving standard of human decency and human rights in the application of the death penalty.  In 1993 the Judicial Committee of the Privy Council, in the case Pratt and Another v. Attorney General of Jamaica (1993), held that the execution of the death penalty after five years was unconscionable delay and would constitute a contravention of Article 17 (1) of the Constitution, except where the delay had been the fault of the accused.

This ruling resulted in scores of condemned prisoners in The Bahamas having their death sentences commuted to life imprisonment due to delay.  In 2000 the Privy Council, in Neville Lewis, overturned Reckley v. Minister of Public Safety and Immigration (1996) and held that (a) a condemned prisoner has a right to the secure protection of the law and to due process which would be denied if he were to be executed before the completion of a hearing before the Inter-American Commission on Human Rights; (b) that a condemned prisoner who applied for mercy had a due process right to know what material had been placed before the Prerogative Committee on Mercy and be afforded the right to make representations and know the reasons for the decision of which the process is subject to judicial review; and (c) that the passage of time and their treatment in prison may constitute inhuman or degrading treatment.

In Henfield and Ricardo Farrington v. A.G. of The Bahamas, the Privy Council reduced the period by which The Bahamas must execute a condemned prisoner from five years to three and a half years due to an oversight that The Bahamas is a party to the Inter-American Commission on Human Rights.  The five-year rule was subsequently reinstated.  The Privy Council, in Forrester Bowe, Jr. and Trono Davis v. The Queen (2006), held that section 312 of the Penal Code Act that declares the mandatory sentence of death for the conviction of murder “should be construed as imposing a discretionary and not a mandatory sentence to death”.  Consequently, the mandatory sentences of death imposed on Forrester Bowe, Jr. and Trono Davis were quashed and the cases were remitted to the Supreme Court for consideration of appropriate sentences.

In light of the Privy Council’s ruling in Forrester Bowe, Jr., the Parliament of The Bahamas amended the Penal Code Act in 2011, by removing the mandatory sentence of death for the conviction murder and setting out the circumstances that will attract the death penalty of a person convicted for murder, such as the murder of a member of the police force, a prison officer, a member of the defence force, a judicial officer, a witness, a juror, the murder of a person during the course of a felony or the murder of more than one person.

Trends in thinking

The trend in judicial reasoning by the Privy Council, informed by the evolving standard of human rights and human decency, will eventually lead, in my opinion, to a judicial finding that the death penalty is contrary to human rights and human decency.  The reaction in The Bahamas and the wider Commonwealth Caribbean to this trend has been a desperate effort to retain the death penalty.  In this context, some advocates have proposed delinking The Bahamas from the Privy Council as the final appellate court for The Bahamas in favor of either the establishment of final appellate court in The Bahamas or by accepting the compulsory original jurisdiction of the Caribbean Court of Justice. The Bahamian society, on reflection, must determine whether the death penalty is a deterrent to crime or cold-blooded killing by the state, which brutalizes the offender and the society.  When the state kills does it lessen its offensiveness and elevate killing into principle?  If the justification is the principle of “an eye for an eye”, should we not also advocate that rape be undertaken by the state as a punishment for rape?

Chief Justice Gubbay of the Supreme Court of Zimbabwe, in the case Catholic Commission for Justice and Peace in Zimbabwe v. Attorney General and Others (1993), argued that retribution is not a sound rationale for the death penalty as follows: “Because retribution has no place in the scheme of civilized jurisprudence, one cannot turn a deaf ear to the plea made for the enforcement of constitutional rights.  Humaneness and dignity of the individual are the hallmarks of civilized laws.  Justice must be done dispassionately and in accordance with constitutional mandates.  The question is not whether this court condones the evils committed by the four condemned prisoners, for certainly it does not.  It is whether the acute mental suffering and brooding horror of being hanged which has haunted them in their condemned cells over the long lapse of time since the passing of sentence of death, is consistent with the guarantee against inhuman, or degrading punishment or treatment.”

The European Court of Human Rights in the case Soering v. the United Kingdom (1989) abolished the death penalty in the European Union.  Similarly, South Africa, Australia, India, New Zealand, Namibia, The Gambia, for example, have also abolished the death penalty.  In the United States, 18 states have abolished the death penalty.

In The Bahamas, without an adequate public defender’s system, there is a significant risk that innocent persons may be wrongly convicted for murder, since most defendants in capital cases tend to be poor African-Bahamian men, sometimes with mental problems and background of abuse.  There needs to be a more disciplined focus on the causes of crime in The Bahamas and the comparative deterrence of the death penalty in relation to life imprisonment.

Recommendation

1. The government should commission The College of the Bahamas and the Eugene Dupuch Law School to conduct a scientific study to determine the comparative deterrence between the death penalty and life imprisonment to inform public education and policy on the issue of the death penalty.

2. The law reform commissioner should be directed to conduct a comprehensive review of all “existing laws” that may be saved under the “existing law provisions” of the Constitution and recommend amendments to ensure consistency of all laws with the Constitution.

• Alfred Sears is an attorney, a former member of Parliament and a former attorney general of The Bahamas.

Oct 25, 2012

thenassauguardian





Constitutional reform pt. 9: ... ...The current development strategy in The Bahamas, industrialization and modernization ...by inviting foreign direct investment by large multinational resorts and financial institutions, some of which employ thousands of Bahamian workers ...require a redefinition of trade unions in accordance with International Labor Organization (ILO) Conventions 87 and 98 ...in order to achieve a better balance of power between capital and labor in The Bahamas

Wednesday, March 30, 2011

Our education system is failing... It is particularly failing our boys

Education system failing our boys

thenassauguardian editorial



Last week new College of The Bahamas (COB) President Dr. Betsy Vogel-Boze told the Zonta Club that only 14 percent of COB graduates are male.

“It is not a problem that happens once they get to us. They are not graduating at the same rates, they are not applying for college at the same rates and that gap continues to widen,” she said.

The newly-landed foreign head of COB is right. Each year the results of the Bahamas General Certificate of Secondary Education (BGCSE) reveal the problem with boys in the education system.

In 2010, girls received 16,233 grades; boys received 10,683 grades. Boys are only receiving 39.7 percent of the grades issued at the senior exams.

The boys receive fewer grades because fewer of them are there at graduation. Our boys are dropping out in large numbers.

What is even sadder is that the boys who stay in school long enough to do their final exams are doing poorly.

For A through C grades at the 2010 BGCSE’s, girls received about double the number of these grades than boys. However, as you move down the grade spectrum, grades D to U, the fewer boys in the system nearly match the girls in poor performance – 554 girls received the U grade and 448 boys did the same.

Our education system is failing. It is particularly failing our boys.

There is without question a correlation between education systems that fail boys and high crime rates. Young men unable to function in a modern economy will not simple sit down and starve to death.

The Bahamas has set three homicide records in four years and it is on pace to shatter last years dubious record. Police have also been battling a surge in recent years in armed robberies and property crimes such as house-breaking.

Our crisis is not just a crime crisis. It is a crisis of integrating young men into the legal economy and into civil society. A national effort is required to help our boys. One part of the strategy to help them may be to separate the genders in the public education system.

Environments need to be created helping young men, collectively, to equate masculinity with honest work, achievement and struggle. As we fail our boys in the current education system they go off into the underworld economy of drugs and violence.

The reformatory schools also need to be expanded. Those who cannot behave should not be allowed to remain in regular schools disrupting the peace. Those parents who cannot, or do not wish to, control their disruptive children should lose custody of those children to the state.

Just as the reformatory schools would exist for the disruptive, a new juvenile prison is needed at Her Majesty’s Prisons. This would be different from the reformatory schools, which would be schools for troubled children. Juvenile jail would be jail for young criminals.

These few suggestions should be a part of a wider national discussion on the failing Bahamian boy and man. We spend hundreds of millions of dollars on education in The Bahamas and we have the problems we have. Simply throwing more money at the education system is not necessarily the solution.

There was a time a few decades ago when women were discriminated against in the workplace and by law. We fortunately have evolved beyond those times. Today, however, as women rise and take on leadership positions in the country, men are falling.

The 14 percent figure at COB is dangerous. If we cannot reach our boys and encourage them to embrace education, more and more of them will be before our courts lost, confused and charged with all manner of violent offenses.

3/28/2011

thenassauguardian editorial

Sunday, July 11, 2010

3,000 high school graduates estimated to have entered the workforce this month without the basic literacy and numeracy skills

3,000 graduates 'lack literacy & math skills'
By MEGAN REYNOLDS
Tribune Staff Reporter
mreynolds@tribunemedia.net:



AROUND 3,000 high school graduates estimated to have entered the workforce this month may be doing so without the basic literacy and numeracy skills required for further education.

Estimates based on the Ministry of Education's 2008 statistics predict around 40 per cent of 5,000 graduates from public and private schools will continue their studies at the College of the Bahamas (COB), Bahamas Vocational and Technical Institute (BTVI) or at colleges and universities abroad.

Around 20 per cent of government school leavers are thought to continue with their education after high school, while the remaining 80 per cent either choose not to enroll in tertiary education or lack the basic literacy and numeracy skills required, Ministry of Education Permanent Secretary Elma Garraway said.

Education department statistics show 41.6 per cent of around 5,000 graduates went on to tertiary education in 2008, and it is estimated this year's figures will be similar.

Mrs Garraway said many government school graduates who may want to continue their studies at COB, or develop practical job skills at BTVI, are often held back by a low level of literacy and mathematics.

"Those students who would normally go to BTVI because they are skilled can't go if they do not have that level of numeracy and literacy required, because all of the institutions require a certain level of reading and comprehension," said Mrs Garraway.

"If people are not reading it impacts their ability to solve a problem because it determines how wide your array of knowledge is to help them understand a problem.

"And it places a restriction on the numbers that go to BTVI and participate in the certification courses."

Schools are now working hard to improve students' basic literacy and numeracy skills before they graduate so they can have the option of going on to further education, Mrs Garraway said.

The computer programme "Autoskills" has been launched throughout government schools for students to practice English and mathematics in their own time.

And CV Bethel has launched another computer programme named "Novanet" to help students with language and math skills.

But high school students could also do with a little encouragement from parents, the said Mrs Garraway.

"Even by just reading the newspaper with your child, and expanding their knowledge will help," she said.

"If you start when they are young they will go on to read and gather knowledge so they will not be leaving school in this position.

"It's such a pity when this should be known from primary school level, and with the parenting and directive intervention they should have no problem in developing that.

"Too many parents abandon the children once they reach seventh, eighth or ninth grade, and we need to keep the parents engaged with students."

Parents who do not have the time to spend reading with their children or helping them develop essential job skills should take advantage of after-school programmes and summer vacation programmes orchestrated by the Ministry of Education, urban renewal associations or churches, youth and community groups, Mrs Garraway said.

Those who have graduated without the literacy and numeracy skills they need - can enroll in specialist catchment programmes at BTVI.

July 10, 2010


tribune242