Embarrassed by the Government’s shock defeat in the Senate on the repeal of the mandatory death sentence to comply with a court ruling, the Attorney General has signaled that the legislation will be sent back to the Upper House a second time, putting the bicameral legislature on a collision course with itself.
In the meantime, those convicted of committing murder who are awaiting sentencing find themselves in legal limbo.
“It is the most unsatisfactory state of affairs and I am actually embarrassed that we are in this position because I don’t think on matters like this there is any political gain,” Attorney General Dale Marshall told reporters today.
The Caribbean Court of Justice, the nation’s highest appeal court, struck down the automatic sentencing of convicted murderers to death, ruling the measure as unconstitutional.
The ruling prompted the Government to amend the Offences against the Person Act to remove the mandatory aspect of a death sentence while retaining the death penalty.
Attorney General Marshall has criticized the Senate’s surprise rejection as potentially worsening existing delays in ongoing murder trials, as judges are now unable to impose a sentence if an accused person is convicted of murder.
“A person can proceed to a murder trial and possibly found guilty, but then he has to wait until a parliamentary process is recommenced so that a judge has the tools that he needs to sentence him,” the Government’s chief legal advisor said.
The leader of the bar association, Liesel Weekes, described the likely fallout from the Senate’s rejection of the repeal amendment as “cruel and unusual” punishment for convicted murderers waiting to know their fate.
While critics have taken issue with the implications of the gridlock on an already large backlog of cases, Weekes expressed concern with the impact this new development could have on those currently convicted of murder but awaiting sentencing and therefore unaware of whether life imprisonment or execution will be their final destiny.
“Its cruel and unusual to not know your fate. It’s one of the reasons why persons who are convicted and not sentenced to death and had not been hung (sic) for five years…was determined to be unconstitutional as cruel and unusual punishment for people to just be sitting there and not know whether or not they’re going to be executed. It’s a similar thing,” she said.
The amendment was able to secure overwhelming support under the single-party rule of the Lower House. But the measure hit a roadblock in the Senate last Wednesday, when Opposition and Independent senators spurned it.
Their actions now leave a grey area between the country’s prevailing mandatory death penalty and the Caribbean Court of Justice’s ruling of the law as unconstitutional back in June.
The bar association president has now joined the chorus of voices urging Upper Chamber lawmakers to agree to the amendment, contending, “the repercussions of the delay are too severe to allow this to drag on for any inordinate time.
“We would want those responsible to sit down as soon as possible and to iron out what the issues are because this cannot be allowed to continue into the indefinite future.”
Since last week’s Senate rejection, two prominent criminal lawyers have signalled their intention to apply to have bail granted to at least nine of their clients, given the current wave of uncertainty.
While Weekes indicated that she did not foresee the current gridlock as preventing cases from being heard, she agrees that courts may now be more inclined to grant bail.
“I would imagine that a murder accused would have made certain applications to the High Court before for bail and that application may have been denied. Now you may make further applications to the High Court as it suits you, and you may use this as a ground. If you succeed on it, great; but it doesn’t really prevent your trial from going forward.”
The ruling against the mandatory death penalty was delivered by CCJ President Sir Dennis Byron in the appeal cases of Barbadian murder convicts Jabari Sensimania Nervais and Dwayne Omar Severin. Their cases were consolidated because both appeals challenged the murder convictions of each of the men and the constitutionality of the mandatory death sentence for murder.
The CCJ ruled that a section of the Offences Against the Person Act was unconstitutional because it provided for a mandatory sentence of death.
In addition, both men had their appeals against their conviction dismissed.
The CCJ also ordered that the appellants be expeditiously brought before the lower court in Barbados for resentencing.