Legal challenge to death penalty: Retention a manifestation of the will of Guyanese

– Nandlall tells CoA

The retention of the death penalty as part of Guyana’s sentencing regime is a manifestation of the will of the Guyanese people exercising their sovereignty.
So contends Attorney General Anil Nandlall, SC, in response to arguments that the capital punishment is unconstitutional.

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, Douglas Mendes, SC, and lawyers Nigel Hughes and Latchmie Rahamat argue that the death sentence is unconstitutional because it is arbitrary, irrational, disproportionate, and contrary to the principles of the rule of law.

The lawyers are appearing on behalf of former Guyana Defence Force (GDF) Coast Guard ranks Sherwyn Harte, Devon Gordon and Deon Greenidge (the appellants) – who were each sentenced to death in 2013 for the 2009 murder of Bartica gold miner Dwieve Kant Ramdass.
Before amendments were made to the Criminal Law (Offences) Act in 2010, anyone convicted of murder was liable to suffer death.
After their conviction, the trio filed an appeal against their conviction and sentence. In their grounds of appeal, their lawyers, among other things, questioned the constitutionality of the death sentence. But before the Court of Appeal could proceed to hear the case on its merits, the panel of Judges entertained arguments from the defence and prosecution on the court’s jurisdiction to hear the matter.
Following a brief hearing on Wednesday, the Court of Appeal reserved its ruling on the substantive appeal as well as on the question of jurisdiction. The case was heard by Chancellor of the Judiciary, Justice Yonette Cummings-Edwards, and Justices of Appeal Dawn Gregory and Rishi Persaud.

Constitutional
Nandlall had applied to intervene in the criminal appeal, and noted that it raises novel and important constitutional issues which go to the core of Guyana’s constitutional ethos and the vexed question of the lawfulness of the death penalty.
Defending the legality of the death penalty, the Attorney General argued that it has been part of the Constitution from time immemorial.
“The framers of the Constitution of Guyana made the death penalty part of our constitutional ethos, and gave it high primacy by inserting it in our constitutional norm and the entrenched provisions of the fundamental rights’ section of the Constitution,” the Attorney General’s written submission reads.
Specifically, Nandlall said, Article 138 of the supreme law authorises the use of the death penalty as a form of sentence. “No person shall be deprived of his or her life intentionally, save in execution of the sentence of a court in respect of an offence under the laws of Guyana of which he or she has been convicted,” he said as he quoted from the aforesaid constitutional provision.

To put this into context, the Attorney General explained that the right to life is a qualified right, and one that is subject to constitutionally prescribed limitations. One such limit, he pointed out, is the execution of the sentence of a court in respect of an offence under the laws.
In light of this, he therefore argued that it is safe to conclude that the death penalty is not only lawful under ordinary legislation, but is duly recognised as a legitimate form of sentence under the Constitution.
Section 19 of the Criminal Law (Offences) Act, he added, reflects the immutable and exceptional nature of the death penalty as distinguishable from the other forms of punishment prescribed under the said Act.
Nandlall said, “Taken together, the above provisions evince the intention of the legislature to retain the death penalty as a form of lawful punishment, and to guarantee that a court of competent jurisdiction, having evaluated the facts and evidence, may lawfully impose such a punishment. They are consistent with the constitutional authority given to the court to impose the death penalty.”

Will of the people
The Attorney General added that the argument may be made that the 1966 Constitution containing the death penalty came into being because of a referendum, and thus represented the direct voice of the people at the time. He was, however, keen to point out that despite the number of years that have elapsed, the will of the people in respect to the death sentence has remained immutable.
He said that a July 17, 1999 Report of the Constitutional Reform Commission to the National Assembly dealt with the full protection of the fundamental rights and freedoms of the Guyanese people under the law and the Caricom Charter of Civil Society as “mandatory Issues #1”, and the right to life was also discussed.
Nandlall said that given what was contained in Chapter 6 of the Report, it is apparent that the issue of the death penalty was ventilated, and Article 138 in its original form survived the reform process. He submitted that the Commission received hundreds of recommendations from interest groups, including ethnic, business, religious, social, professional, and cultural organisations, as well as groups of citizens.
Based on the recommendations, he said, the legislature, in 2010, amended the Criminal Law (Offences) Act, which, among other things, brought about the removal of the directive that anyone who commits murder shall be liable to suffer death as a felon.
This, he added, removed the mandatory nature of the death sentence, and Section 100A of the amended Act now gives the court the discretion whether to impose the death penalty or life imprisonment. As such, he argued, the death penalty therefore survived this legislative amendment.
Considering this, the Attorney General submitted that the appellants failed to produce any evidence of purported outcry by the Guyanese people demonstrating an opposition to the death penalty.
On the contrary, he said, the State had been unable to show the unabated desire of the Guyanese people not to retain the death penalty. And this, he pointed out, is evidenced by its retention in the legislation and the Constitution following public participation in the constitutional reform exercise.
While 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, Nandlall argued, the National Assembly or Parliament has not seen in fit to remove the death penalty, “and it is not for a court of law to address such matters of high policy, which are best left to the people’s elected representatives.”
“The death penalty is neither inconsistent with Guyana’s municipal law nor its international law obligations…the death penalty has been engrained in Guyana’s constitutional framework from time immemorial, and has been deliberately retained. This is evidenced by its survival despite numerous constitutional and legislative amendments,” the Attorney General argued.
“The retention of the death penalty as part of Guyana’s sentencing regime is a manifestation of the will of the Guyanese people exercising their sovereignty,” Nandlall contended. (G1)