KEEP DEATH PENALTY

– Says Constitution Commission.

THE Constitutional Reform Commission has recommended that St Lucia retains the death penalty in certain cases of murder in a new constitution for the island, although its membership was “sharply divided” on the issue. Today, THE VOICE continues serializing the Commission’s report , looking at Chapter 3:

CHAPTER THREE
STRENGTHENING OUR FUNDAMENTAL RIGHTS AND FREEDOMS
The existing constitutional provisions for the fundamental human rights and freedoms currently enjoyed by Saint Lucians emerged out of a strengthening of the provisions that were in the previous associated state constitution.

The Marlborough House Agreements on Human Rights

At the Marlborough House Constitutional Conference where the independence constitution for St. Lucia was discussed during the period 24th – 27th July, 1978, the declassified summary of what was agreed between the British Government, the Saint Lucian Government and the Saint Lucian Opposition reveals as follows:

1. “Protection of Fundamental Rights and Freedoms
The existing provisions which already contain the usual safeguards have been further strengthened as a result of the constructive contributions by the St. Lucia Government and Opposition delegations to the constitutional conference (see paragraph 11 of Cmnd 7328).”27

The modifications made to the fundamental rights and freedoms provisions contained in the associated state constitution for the independence constitution are detailed in paragraph 11 of the Report of the St. Lucia Constitutional Conference 28 as follows:

11. “The constitution would include provisions modelled on Chapter I of the existing constitution with modification as follows:

1) references should be included to equality before the law, and to the protection of personal privacy and family life in the declaratory provisions of section 1;
27 U.K. National Archives, FCO 44/1910, Folio 419, Annex A, St. Lucia Constitution.

2) in section 3(2), the phrase “as soon as reasonably practicable” should be replaced by the phrase “with reasonable promptitude”;

3) an additional subsection should be added giving an arrested person the right to retain and instruct a legal representative promptly and to hold private communication with him;

4) the language of section 3(5) should include an explicit prohibition of excessive bail;

5) an additional provision should be added to section 3 giving a minor who is arrested or detained the right to communicate with his parents or guardian;

6) section 3(6) should be amended so that, to the extent that it is so provided by law, no compensation would be payable where the arrest or detention was effected in pursuance of the order of a Court or magistrate or justice of the peace;

7) section 4(3)(d) should be amended so as to replace the reference to “any other emergency or calamity” by a reference to “any accident or natural calamity”;

8) section 6(1) should be amended so that property may only be acquired compulsorily for a public purpose;

9) section 6(4) should be amended so as to permit the imposition of reasonable restrictions on the remission to another country of any amount of compensation for the deprivation of property for the purpose of controlling the export from St. Lucia of capital raised in St. Lucia or capital raised in some other country the Government of which has entered into arrangements with the Government of St. Lucia for the purpose of controlling the export of such capital;

10) section 8(2) should be amended on the lines of section 8(2) of the Dominica Independence Constitution which refers to the circumstances in which a trial may take place in the absence of the accused;

11) section 9(3) which relates to the protection of freedom of conscience should be amended on the lines of section 9(3) of the Dominica Independence Constitution;

12) section 11(1) should be amended so as to refer explicitly to the right to form or belong to political parties;

13) section 15(1)(a) should be amended so that a detained person is to be informed in a language that he understands and in detail, of the grounds of detention and also furnished with a written statement in English specifying those grounds in detail;

14) section 17 which relates to Declarations of Emergency should be replaced with a provision on the lines of part 3 of Chapter 1 of the constitution of the Republic of Trinidad and Tobago.”29 Armed with the knowledge of how the Bill of Rights was amended for the Independence Constitution, the Commission felt that this should now be juxtaposed against some of the issues raised in consultation with the population as well as those areas of debate that engaged Commissioners in their review sessions.

The Right to Life
On the issue of arbitrary or unlawful deprivation of life, some Commissioners were of the view that issues relative to respect for the integrity of the person, including freedom from arbitrary or unlawful deprivation of life, protection of the unborn as well as when life begins, could best be afforded protection through ordinary laws.

Other Commissioners were of the view that the present Constitution does not deal with the right to life where it exists before birth, consequently it cannot be dealt with under ordinary legislation. It was argued that if conception was seen as the commencement of life, then due consideration should be given to what medical practitioners and others say in that regard.

There was the view that while the right to life is already afforded constitutional protection, there has always been a clear restriction on abortion. The law has only recently been amended to allow it under certain circumstances. In fact, there has always been the allowance for medical reasons but it has been extended to include two new categories, rape and incest, albeit under stringent conditions. Some argued that if the right to life is applied to most vulnerable groups, then, the unborn child should fit that category and the fundamental laws should seek to protect the existence of such a life. There is also the view that life begins after the first trimester. Ultimately the Commission was divided as to whether life begins at conception or at birth.

There was the view that the law is not the place to determine where life begins when the medical profession has not been able to do so definitively. There are also widely varying views among different religions. What has been done, and it is the correct strategy, is to provide general protection to life in the Constitution and place restrictions in ordinary legislation as to how that can be abrogated and where it can be protected.

Recommendation
(15) With respect to the right to life, the Commission recommends that the existing provisions on right to life should be retained.
Deprivation of Property
The Commission noted that Section 6 (1) of the Constitution relating to protection from deprivation of property indicates that: “No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except for a public purpose and except where provision is made by a law applicable to that taking of possession or acquisition for the prompt payment of full compensation.”

Despite the fact that this section had been specifically amended by the drafters of the independence constitution on the instructions of the Marlborough House Conference, the Commission still holds the view that adherence to this provision was questionable. It was felt that Section 6 (2) did not adequately address the situation where there are competing interests. Also there were questions as to whether that should be a matter for the Courts to determine.

Some Commissioners felt that the problem was not with the constitutional provisions but with the provisions of the legislation thereunder. Other Commissioners were of the view that ordinary legislation cannot take care of this situation. The Commission concluded that the problem arose mainly due to the unwillingness of politicians to follow the law.

Restrictions should therefore be placed in the Constitution so that the legislation can better address the situation. A case in point is the Land Acquisition Act (No. 11 of 1984) which restricts compensation to the market value of the property at the time of the acquisition and not at the time of payment. If these constitutional changes are applied, it would more than likely force prompt settlement.

Recommendations
With respect to deprivation of property, the Commission recommends the following:

(16) The ability of the State to alienate the patrimony of the country should be restricted. These restrictions should include, but not be limited to the ability to lease, to change land use or to promote sustainable development.

(17) Access to the patrimony of the State should be a public right.

(18) Compensation for property acquired by Government should be based on the current value of the property and, at that time, payment should be full and prompt.

(19) Strengthening the provisions of the Constitution to ensure (15) above.

Protection of Public Property
The Commission received submissions that the Constitution should provide for the protection and promotion of the cultural heritage of the State including historic sites, monuments, places and objects of artistic and historic interest, language, literature, visual and performing arts to enrich the cultural life of the citizens of the State. The Commission endorsed these submissions.

There were also submissions that the provision of a public right to access parks, beaches and public property (i.e. patrimony) should be granted constitutional protection. There was extensive discussion among Commissioners on the issue. Commissioners concluded that some aspects of this issue can best be addressed by ordinary legislation.

Commissioners and the public were concerned with the protection of the patrimony not just for this generation but also for the generations to come.

The idea that benefits, such as access to beaches, are enjoyed by non-nationals to the exclusion of most nationals was a situation that needed to be redressed. To this end, the Commission took a firm stand on the issue of the Queen’s Chain by agreeing to have it included in the Preamble and in the Chapter on Fundamental Human Rights and Freedoms. It was also felt that a Natural Resource Management Act should provide for adequate management of our environment and natural resources.

Recommendations
With respect to Protection of Public Property, the Commission recommends the following:
(20) The ability of the State to alienate the patrimony of the country should be restricted. These restrictions should include, but not be limited to the ability to lease, to change land use or to promote sustainable development.

(21) Access to the patrimony of the State should be a public right.

(22) The Constitution should provide for the protection of public property especially our cultural heritage, and the State’s natural resources.

(23) A Natural Resource Management Act should be provided for.
Capital Punishment
There were as many recommendations calling for the retention of capital punishment as there were those calling for its abolition. The Commission was mindful that the issue has preoccupied the Commonwealth Caribbean, ever since the Judicial Committee of the Privy Council’s decision in Pratt v Morgan in 1993. In that case, the Judicial Committee overturned a previous decision, holding that an extended delay in carrying out the sentence of death by hanging, could convert an initially lawful sentence of death to cruel and inhuman punishment, contrary to the Constitution.

The effect of the decision is that sentences of hanging in the Commonwealth Caribbean now have to be carried out before the expiration of five years, to be legal.30