The death penalty is a lawful sentence – DPP tells CoA

Despite strong arguments by several lawyers that the death sentence is unconstitutional and should be abolished, the Director of Public Prosecutions (DPP), Shalimar Ali-Hack, SC, has asserted that the death penalty is a lawful punishment as it is provided for under the Constitution of Guyana. The DPP was last Thursday making submissions before the Guyana Court of Appeal in a case challenging the constitutionality of the death penalty that has been mounted by three death row inmates.
The case was filed 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.

This is the first time in the Commonwealth Caribbean that lawyers have moved to challenge the constitutionality of the death penalty. In the landmark case before the appellate court, Trinidadian Senior Counsel Douglas Mendes and Attorney-at-Law Nigel Hughes, on behalf of the former GDF ranks, are arguing that the punishment of death is unconstitutional as it is arbitrary, irrational, disproportionate, and contrary to the principles of the rule of law.
The DPP, in her address to the court, said the death penalty was a lawful sentence at the time it was imposed on Greenidge, Gordon, and Harte. “The Judge at the time of the imposition of the sentence imposed a lawful sentence because that was the sentence that was applicable at the time of the commission of the offence. And based on the principle of nonretroactivity, the Judge could not have imposed any other sentence,” argued Ali-Hack.
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.

According to the DPP, the death sentence is lawful based on Section 100 of the Criminal Law (Offences) Act and constitutional pursuant to Article 138 of the Constitution. She submitted, “Article 138 (1) provides for the death sentence; the death sentence is lawful sentence. It is constitutional and it can be imposed in the circumstances as provided for in the legislation.”

Ali-Hack argued that the death sentence is discretionary, and is reserved for certain categories of murder under Section 100 (1) a-e of the Criminal Law (Offences) Act. The ultimate penalty of death must be reserved for exceptionally serious offences or the rarest of the rare cases, said the DPP, adding that this approach involves a strong presumption in favour of life.
While the rarest of the rare principle has not been specifically adopted by Guyana, Ali-Hack told the court that one must note that Judges can only exercise their discretion in imposing the death penalty when criteria set out in Section 100 (1) a – e of the Criminal Law (Offences) Act ais met.
“The mere fact that an accused person has killed another in circumstances pursuant to Section 100 (1) a-e of the Criminal Law (Offences) Act does not mean that death is the appropriate sentence,” she added. The Court of Appeal has set aside October 20 and 21 to hear further submissions in this matter.