Lawyers move to strike down death penalty

By Feona Morrison

For the first time in the Commonwealth Caribbean, lawyers have moved to challenge the constitutionality of the death penalty.

In the landmark case before the Guyana Court of Appeal, Trinidadian Senior Counsel Douglas Mendes and Attorney-at-law Nigel Hughes argue that the capital punishment is unconstitutional, as it is arbitrary, irrational, disproportionate, and is contrary to the principles of the rule of law.
But before the Court of Appeal could proceed to hear the case on its merits, it first has to decide whether it has jurisdiction to do so. The Appellate Court opened arguments on the issue on Wednesday, and continued into Thursday. A further hearing is scheduled for July 22.

The case was mounted by three former Guyana Defence Force (GDF) Coast Guard ranks – Sherwyn Harte, Devon Gordon, and Deon Greenidge – who were each sentenced to death in 2013 for murder. A jury had found them guilty of the 2009 murder of Bartica gold miner Dwieve Kant Ramdass, who was robbed at Caiman Hole, Essequibo River, and then tossed overboard.
Following their conviction, the trio filed an appeal against their conviction and death sentence – a penalty which they argue is unconstitutional.
Before the amendments to the Criminal Law (Offences) Act in 2010, anyone convicted of murder was liable to suffer death. As the law stands presently, a Judge has the discretion to impose the death sentence, which is specified for certain categories of murder, imprisonment for life, or such other term the court considers appropriate.

Mendes, in association with Hughes, is appearing on behalf of two of the appellants, while the other appellant has retained Attorney-at-law Latchmie Rahamat. Attorney General Anil Nandlall, SC, and Director of Public Prosecutions (DPP) Shalimar Ali-Hack, SC, have however argued to the contrary of the appellants’ counsel. They are yet to address the court.
Mendes, in addressing Chancellor of the Judiciary Justice Yonette Cummings-Edwards and Justices of Appeal Dawn Gregory and Rishi Persaud, submitted that the jurisdiction of the Court of Appeal to hear a challenge to the constitutionality of the death penalty lies under Section 12 (d) of the Court of Appeal Act, which gives the right to appeal a conviction unless the sentence is one fixed by law.
According to Mendes, on the day his clients were convicted, the power to impose the death sentence was discretionary, and not fixed by Section 100 of the Criminal Law (Offences) Act.

He said the law at the time gave the trial Judge the discretion to impose the death or life sentence.
“The provision that we [rely on] is the one that says that when one is found guilty of murder, the court may impose the sentence of death or life imprisonment. That was the law that applied when the appellants were found guilty of murder,” Senior Counsel Mendes said, adding that the Court of Appeal has jurisdiction to determine whether or not the death sentence is unlawful.

Unconstitutional
Senior Counsel Mendes reasoned that the death sentence is not lawful, because it violates the Constitution of Guyana. He said capital punishment contravenes the fundamental rights provisions of the Constitution, among them being Articles 40, 141, 149.

Under Article 40 (1), Mendes noted, citizens are provided with a freestanding right to life and human dignity, which prohibits the imposition of the death penalty, and which is separately enforceable and outwits the scope of the general savings clause in Article 152.
“The death sentence violates the rule of law, which is the core constitutional principle… It violates the right to equality and protection of the law. It violates the core principles in respect to dignity,” Mendes said as he argued that the death sentence is arbitrary and discriminatory.
“The system of the law in Guyana is one that is prone to produce arbitrariness in the criminal arena…,” he added. According to him, all of these principles are core principles of a sovereign democratic State. He pointed out that to the extent where the capital punishment violates these principles, it also violates Article 1, which states that Guyana is a sovereign democratic State.
“If a law is in violation of the rule of law, then it can be struck down,” he contended.
To amplify this argument, Mendes relied on the pronouncements of the Caribbean Court of Justice (CCJ in the case of Quincy McEwan et al vs the Attorney General of Guyana. The Senior Counsel reminded that the CCJ, in that case, struck down Guyana’s archaic cross-dressing law under Section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act, having found that it violated the rule of law and its provision were vaguely worded.
Mendes and Hughes argue that the “execution of the death penalty following a lengthy de-facto moratorium would be contrary to Guyana’s binding international law obligations under the International Covenant on Civil and Political Rights.”
Although Guyana has not carried out any execution since 1997, the courts continue to impose the death sentence. Given that 24 years have elapsed since the execution of the death sentence, Mendes questioned, “Then how will it be reinstituted, if not arbitrarily?”
Urging the Court of Appeal to outlaw the death penalty, the Senior Counsel told the panel of Judges, “If you do so, all persons on Death Row will be beneficiaries. Their sentences, those that have survived appeals, will have to be vacated…” In that regard, he added, the court would then have to impose an alternative sentence.
He noted that this is the first time in the Commonwealth Caribbean that the constitutionality of the death sentence is being raised because of pronouncements made by the Caribbean Court of Justice (CCJ)- Guyana’s final court of appeal – on the rule of law.
Meanwhile, Justice Cummings-Edwards interposed, reminding the Senior Counsel that the Court of Appeal is a court of review, and asked him to point of what about the death penalty in the case at bar that was before the High Court that the court was sitting to review.
Justice Cummings-Edwards said the Appellate Court made no pronouncements on the constitutionality of the death penalty, and she questioned whether it would be usurping the exclusive jurisdiction of the High Court should it take jurisdiction over the matter.

But Mendes reasoned that there is nothing “unlawful” or “unusual” about the Appeal Court taking jurisdiction to hear the case, as he relied on the provisions of the Court of Appeal Act.

Fresh evidence
On Thursday, The Death Penalty Project – a London-based NGO which has, for over three decades, been providing free legal representation to those facing the death penalty – reported that it facilitated the submission of expert reports from leading academics for the case before the Guyana Appeal Court.
They include Carolyn Hoyle, Professor of Criminology at the University of Oxford; Williams Schabas, Professor of Law at Middlesex University, and Jeffery Fagan, Professor of Law at Columbia University.

Novel issues
Nandlall, in an application to intervene in the criminal matter, said it raises novel and important constitutional issues which go to the core of Guyana’s constitutional ethos, and addresses the vexed question of the legality of the death penalty.
As the government’s principal legal adviser, Nandlall added, he has a public duty to protect the public’s interest, and is the keeper of the public’s conscience.
Nandlall said he would certainly assist the court and further the development of the law and jurisprudence on the death penalty.
According to the Attorney General, the nature of the appeal makes it a public interest matter, because it is a challenge to the constitutionality of the death penalty for its complete removal from the laws of Guyana, which is a matter of high constitutional law.
“The court has both a power and a duty to modify relevant legislation to ensure it is rendered consistent with fundamental rights and principles of the Constitution,” he advanced.