8 November 2006

     
 

CCJ Appeal No CV 2 of 2005
BB Civil Appeal No 29 of 2004

 
     

Caribbean Court of Justice

     
     

The Attorney General, Superintendent of Prisons and Chief Marshal

 

v.

Jeffrey Joseph and Lennox Ricardo Boyce

     
     
 

Judgment

 
     
 

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BEFORE:

PRESIDENT: Mr Justice de la Bastide
JUSTICES: Mr. Justice Nelson; Mr. Justice Pollard; Mr. Justice Saunders; Madame Justice Bernard; Mr. Justice Wit; Mr. Justice Hayton

   

PermaLink:

http://www.worldcourts.com/ccj/eng/decisions/2006.11.08_Attorney_General_v_Joseph.htm

   

Citation:

Attorney General v. Joseph, [2006] CCJ 1 (AJ)

Represented By:

APPELLANT: Mr. Roger Forde QC; Mr. Brian L. St. Clair Barrow
FIRST RESPONDENT: Mr. Maurice Adrian King; Ms Wendy Maraj
SECOND RESPONDENT: Mr. Alair Shepherd QC; Mr. Douglas Mendes SC; Mrs. Peta Gay Lee-Brace; Mr. Philip McWatt

Editor's Note:

 
 
     
 
 
 

JOINT JUDGMENT OF THE RT HONOURABLE MR. JUSTICE DE LA BASTIDE AND THE HONOURABLE MR. JUSTICE SAUNDERS

THE FACTUAL BACKGROUND

[1] On the 10th April, 1999, Marquelle Hippolyte, a lad 22 years old, was brutally beaten to death with pieces of wood. Four men, all in their early twenties, were charged with his murder. At their trial, the Prosecution offered to accept pleas of guilty of manslaughter from the accused. Two of the men accepted that offer and pleaded guilty to the lesser offence. They were each sentenced to 12 years' imprisonment. The other two, the respondents Jeffrey Joseph ("Joseph") and Lennox Ricardo Boyce ("Boyce"), rejected the offer. They entered pleas of not guilty and were accordingly tried. On 2nd February, 2001 they were both found guilty of murder. Joseph had one previous conviction for robbery in 1995 for which he had been placed on two years' probation. Boyce had no criminal record. The mandatory sentence of death by hanging was imposed on each of them.

[2] Joseph and Boyce appealed their convictions to the Court of Appeal. On the 27th March, 2002, those appeals were dismissed. The men then began to make arrangements to appeal to the Judicial Committee of the Privy Council ("the JCPC"). This was indicated to His Excellency the Governor-General. While these arrangements were being made, the Barbados Privy Council ("the BPC") notified counsel for the men that it intended to meet to advise the Governor-General in relation to the exercise by him of his powers under section 78 of the Constitution. Section 78, which we will later set out, deals with the prerogative of mercy. Copies of certain documents which had been requested by the BPC were also sent to counsel. These included the antecedents of the convicted men, the respective reports of the trial judge, the Chaplain and the Prisons Superintendent, and a medical report.

[3] Correspondence then ensued between counsel and the Attorney-General with respect to whether the men had a right to be heard before the BPC and what level of funding should be made available to them for their legal representation before that body. Counsel were repeatedly invited to make written submissions to the BPC but they chose not to do so. Counsel's position was that unless a commutation of the sentence was being recommended, it was inappropriate for the BPC to meet given that the men intended, and were actively preparing, to prosecute an appeal to the JCPC.

[4] The BPC met on the 24th June, 2002 and advised against commutation of the death sentences. Two days later, death warrants were read to the men. An order was obtained from the High Court staying their executions, and the appeal to the JCPC was eventually heard. That appeal addressed a single issue namely, whether the mandatory nature of the death penalty rendered that punishment unlawful and unconstitutional. On 7th July, 2004, by a 5-4 majority, the JCPC upheld the mandatory death penalty in Barbados and the respective appeals of Joseph and Boyce were dismissed[FN1].

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[FN1] See: Boyce v The Queen [2005] 1 AC 400; (2004) 64 WIR 37
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[5] Shortly after the JCPC's dismissal of the appeal, lawyers for the condemned men informed the State's solicitors that the men intended to file an application before the Inter-American Commission on Human Rights ("the Commission"). On 3rd September, 2004, the men filed applications before that body seeking declarations that their rights under the American Convention on Human Rights ("ACHR") had been violated. The BPC was duly informed that these applications were pending. On the 13th September, 2004 the BPC met again, but merely to consider the Order in Council emanating from the conclusion of the proceedings before the JCPC. Upon the conclusion of its meeting, the BPC tendered its advice to the Governor- General that the death sentences should be carried out. On the 15th September, 2004, death warrants were again read to the men for their execution to be carried out on 21st September, 2004.

[6] On the 16th September, 2004 the men filed a motion before the High Court seeking declarations that their rights to life, security of the person, the protection of the law and their right not to be subjected to inhuman and degrading treatment were being infringed. They sought a commutation of the sentence of death imposed upon them. This motion was subsequently amended to add the complaint that they were treated unfairly and/or in a manner that was in breach of the principles of natural justice. The motion was consolidated with motions filed earlier in 2002 that had not been heard. Execution of the men was again stayed pending the determination of the motions. The Inter-American Court also issued provisional measures requiring Barbados to preserve the lives of the two men until the outcome of the petitions before the Inter-American system.

[7] The constitutional motions in the High Court were heard by Mr.. Justice Greenidge. The most crucial of the issues argued was whether the BPC was obliged to await the outcome of the Commission's proceedings before advising the Governor-General in relation to the exercise by him of the prerogative of mercy. Greenidge, J. dismissed the motions in a judgment delivered by him on 22nd December, 2004. Joseph and Boyce successfully appealed this judgment to the Barbados Court of Appeal. The Attorney General now appeals the Court of Appeal's decision to this Court.

THE JUDGMENTS OF THE COURTS BELOW

[8] Greenidge, J. in dismissing the motions, held that the BPC was not required to await the conclusion of the Commission's proceedings before tendering its advice to the Governor-General. The learned judge also held that the BPC was an advisory and not a judicial entity and, noting that in 2002 the men had been afforded but had not availed themselves of an opportunity to make written representations to the BPC, he stated that there was no right for an applicant to make oral representations to that body. The judge also held that the men had no right to have their legal representation before the BPC funded at public expense and that the BPC had acted constitutionally on the occasions it had met as no appellate process had commenced before the first reading of the death warrant and, at the time of the second reading, the men had already exhausted their domestic appeals.

[9] The Court of Appeal (C. Williams, L. Waterman and P. Williams, JJA) first examined the question whether it was a breach of the men's rights to execute them prior to the receipt by the BPC of reports from the Inter-American Commission. The Court held that the Executive, as the treaty-making organ of government, could not ignore treaties which gave rights to citizens and to which the Executive had bound the State. The Court of Appeal agreed with the trial judge that the men had no right to an oral hearing before the BPC but held nonetheless that circumstances might arise where an oral hearing might be desirable. The Court saw no reason why the BPC should have held an oral hearing in this particular case and it rejected the contention that the men had been deprived of an opportunity to place representations before the BPC. The Court relied heavily on Neville Lewis v The Attorney-General[FN2] and on R. (West) v Parole Board[FN3]. The Court commented on the ouster clause contained in section 77(4) of the Constitution (set out later in this judgment at [23]). The Court held that the BPC was an independent quasi-judicial decision-making body and not just an advisory body having a consultative role. Section 24 of the Constitution - which provides for a right to apply to the High Court for redress for the contravention of the fundamental rights and freedoms - was not ousted by section 77(4) and it was for the Court to determine, on a true construction of the Constitution, whether there had been an error of jurisdiction or breach of natural justice or some misdirection which made the ouster clause inapplicable. The Court could in appropriate proceedings, it was said, either set aside the decision of the BPC or declare it to be a nullity. The Court of Appeal expressly refrained from giving a considered opinion on whether the men were entitled to adequate funding to facilitate their representation before the BPC. In determining the order that should be made, the Court reasoned that since in all the circumstances it was not realistic to expect that the men would conclude the international proceedings available to them within the time-table outlined in Pratt and Morgan v The Attorney-General,[FN4] the proper order to make was to commute the death sentences and to substitute terms of imprisonment for life.

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[FN2] [2001] 2 AC 50; (1999) 57 WIR 275
[FN3] [2005] 1 WLR 350
[FN4] [1994] 2 AC 1; (1993) 43 WIR 340
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[10] The Court alluded to three other circumstances in arriving at its decision. Firstly, the undesirability of having the death warrants read to the men for a third time; secondly, the disproportion between the sentence imposed on the other two original co-accused on the one hand and the mandatory death sentences imposed on Joseph and Boyce on the other, and thirdly, the fact that the men had no access to funding to pursue effectively any further rights they might have, but instead were dependent on lawyers who acted pro bono.

THE BROAD ISSUES RAISED BY THIS APPEAL AND THE APPROACH OF THIS COURT

[11] Prior to the hearing of this appeal, the parties agreed that the broad issues raised in this appeal could be formulated in the following way:

(1) Whether the exercise by the Governor-General of his powers under section 78 of the Constitution of Barbados is justiciable and if so, to what extent.
(2) In what manner, if at all, may unincorporated international human rights treaties which give a right of access to international tribunals affect the rights and status of a person convicted of murder and sentenced to the mandatory punishment of death by hanging.
(3) Whether section 24 of the Constitution authorises the Court to commute a death sentence and, if so, whether in all the circumstances it was appropriate for the Court of Appeal to take into account the matters that it did in deciding whether to commute or give other relief.

[12] Essentially, the court must determine whether the exercise of the prerogative of mercy is reviewable and whether the State is under an obligation to defer execution of a condemned man until the determination of any petition filed by him with an international body pursuant to the provisions of a human rights treaty entered into and ratified by the State but not incorporated in domestic law by the legislature.

[13] After the respondents were convicted and sentenced, the Parliament of Barbados, on 5th September, 2002, passed the Constitution Amendment Act, No. 14 of 2002. This Act amended three sections of the Barbados Constitution. Two of these sections are germane to the issues involved in this judgment. Section 15 of the Constitution, which protects citizens from being subjected to torture or to inhuman or degrading punishment or other treatment, was amended by the insertion of a provision that none of the following can be held inconsistent with or in contravention of the section, namely, a)the imposition or execution of a mandatory sentence of death; b)any delay in carrying out a death sentence, and c)the holding of an incarcerated person in conditions prescribed by the Prisons Act or "otherwise practised in Barbados" before or at the date of the amendment. It was specifically provided that these amendments of section 15 of the Constitution did not apply to a person convicted and sentenced to death before 5th September, 2002. The respondents are therefore unaffected by these amendments.

[14] Section 78 of the Constitution was also amended to add three new sub-sections, (5), (6) and (7). These amendments concern the prerogative of mercy and, along with the original provisions dealing with the exercise of the prerogative will be set out in full later in this judgment.

[15] At the end of his submissions, when pressed, Mr.. Roger Forde QC, counsel for the Crown, conceded that, even if this appeal by the Crown were successful, it would not be appropriate for this Court to re-impose the death penalty on Joseph and Boyce. This concession was in our view rightly made. Over five years had elapsed since their conviction and sentence and the Crown made no attempt to challenge the applicability to them of the time-limit for carrying out the death penalty laid down in Pratt and Morgan. Further, as we have noted, the amendments to section 15 of the Constitution do not apply in this case.

[16] It is therefore possible to dispose of this appeal without deciding whether it was lawful for the respondents to be executed before the BPC received and considered the decision of the Inter-American body. This issue was however dealt with in the courts below and was answered differently by Greenidge, J. and the Court of Appeal in their respective judgments. Moreover, it was identified by the parties as one of the major issues raised by the appeal to this court. Accordingly, we believe that the parties are entitled to receive our views on it. Moreover, the Court of Appeal relied for its decision on the JCPC's judgment in Lewis. It was right so to do because it was bound by that decision. We, on the other hand, can determine whether Lewis should or should not continue to be the law of Barbados. Although it will add considerably to the length of this judgment, we think it important to give a considered judgment on this issue.

[17] A determination of the questions in issue requires a re-examination also of other judgments of the JCPC now that this Court has replaced it as the final appellate court for Barbados. We are mindful of the fact that the establishment of the Caribbean Court of Justice has been accompanied by much speculation as to the approach we might take to JCPC judgments and in particular to those rendered in death penalty cases. It is just as well therefore that we begin by outlining some basic features of the approach we adopt in addressing these issues.

[18] The main purpose in establishing this court is to promote the development of a Caribbean jurisprudence, a goal which Caribbean courts are best equipped to pursue. In the promotion of such a jurisprudence, we shall naturally consider very carefully and respectfully the opinions of the final courts of other Commonwealth countries and particularly, the judgments of the JCPC which determine the law for those Caribbean states that accept the Judicial Committee as their final appellate court. In this connection we accept that decisions made by the JCPC while it was still the final Court of Appeal for Barbados, in appeals from other Caribbean countries, were binding in Barbados in the absence of any material difference between the written law of the respective countries from which the appeals came and the written law of Barbados. Furthermore, they continue to be binding in Barbados, notwithstanding the replacement of the JCPC, until and unless they are overruled by this court. Accordingly we reject the submission of counsel for the appellants that such decisions were and are not binding in Barbados. See: Bradshaw v The Attorney General[FN5].

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[FN5] Appeals Nos. 31 and 36 of1992 (Barbados) unreported at page 28 and [1995] 1 WLR 936 (PC); (1995) 46 WIR 62 (PC)
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[19] With the exception of the British Dependent territories, the laws of all the countries of the Commonwealth Caribbean make provision for capital punishment. We recognise that the death penalty is a constitutionally sanctioned punishment for murder and falls within internationally accepted conduct on the part of civilised States. The death penalty, however, should not be carried out without scrupulous care being taken to ensure that there is procedural propriety and that in the process fundamental human rights are not violated. Death is a punishment which is irrevocable. Amidst deep and continuing controversy over the death penalty, it must be acknowledged that several court decisions in the Caribbean over the last two or three decades have done much to humanise the law and to improve the administration of justice in this area.

[20] At the same time, courts have an obligation to respect constitutions and laws that retain capital punishment. Judges, like everyone else, are entitled to their personal views on the death penalty. But if a judge is so uncomfortable with imposing or sanctioning the imposition of a constitutionally permitted punishment that the judge cannot be dispassionate in resolving legal issues that bear on the subject, then the judicial function is compromised and public confidence in the administration of justice is undermined.

ISSUE ONE
TO WHAT EXTENT, IF AT ALL, IS THE EXERCISE OF THE POWERS CONFERRED UNDER SECTION 78 JUSTICIABLE

[21] In the courts below, the condemned men challenged the fairness of the procedures adopted by the BPC in relation to them. They raised questions as to their right to an oral hearing before that body and complained of the failure of the BPC to await and consider the report of the Commission. The Crown on the other hand contended inter alia, that the prerogative of mercy was not justiciable.

[22] Sections 76 to 78 of the Constitution establish the Barbados Privy Council, prescribe its composition, define the ambit of its powers, and address broadly the prerogative of mercy. The following are relevant extracts from these sections:

(76) (1) There shall be a Privy Council for Barbados which shall consist of such persons as the Governor-General, after consultation with the Prime Minister, may appoint by instrument under the Public Seal.
(2) The Privy Council shall have such powers and duties as
may be conferred or imposed upon it by this Constitution or any other law.
(3) ....

(77) (1) The Privy Council shall not be summoned except by the authority of the Governor-General acting in his discretion.
(2) The Governor-General shall, so far as is practicable, attend and preside at all meetings of the Privy Council.
(3) Subject to the provisions of this Constitution, the Privy Council may regulate its own procedure.
(4) The question whether the Privy Council has validly performed any function vested in it by this Constitution shall not be inquired into by any court.

(78) (1) The Governor-General may, in Her Majesty's name and on Her Majesty's behalf –

(a) grant to any person convicted of any offence against the law of Barbados a pardon, either free or subject to lawful conditions;
(b) grant to any person a respite, either indefinite or for a specified period, from the execution of any punishment imposed on that person for such an offence;
(c) substitute a less severe form of punishment for that imposed on any person for such an offence; or
(d) remit the whole or part of any punishment imposed on any person for such an offence or any penalty or forfeiture otherwise due to the Crown on account of such an offence.

(2) The Governor-General shall, in the exercise of the powers conferred on him by subsection (1) or of any power conferred on him by any other law to remit any penalty or forfeiture due to any person other than the Crown, act in accordance with the advice of the Privy Council.
(3) Where any person has been sentenced to death for an offence against the law of Barbados, the Governor-General shall cause a written report of the case from the trial judge, together with such other information derived from the record of the case or elsewhere as the Governor-General may require, to be forwarded to the Privy Council so that the Privy Council may advise him on the exercise of the powers conferred on him by subsection (1) in relation to that person.
(4) The power of requiring information conferred upon the Governor-General by subsection (3) shall be exercised by him on the recommendation of the Privy Council or, in any case in which in his judgment the matter is too urgent to admit of such recommendation being obtained by the time within which it may be necessary for him to act, in his discretion.
(5) A person has a right to submit directly or through a legal or other representative written representation in relation to the exercise by the Governor-General or the Privy Council of any of their respective functions under this section, but is not entitled to an oral hearing.
(6) The Governor-General, acting in accordance with the advice of the Privy Council, may by instrument under the Public Seal direct that there shall be time-limits within which persons referred to in subsection (1) may appeal to, or consult, any person or body of persons (other than Her Majesty in Council) outside Barbados in relation to the offence in question; and, where a time-limit that applies in the case of a person by reason of such a direction has expired, the Governor-General and the Privy Council may exercise their respective functions under this section in relation to that person, notwithstanding that such an appeal or consultation as aforesaid relating to that person has not been concluded.
(7) Nothing contained in subsection (6) shall be construed as being inconsistent with the right referred to in paragraph (c) of section 11[ie the right to the protection of the law].

[23] Sub-sections 5, 6 and 7 of section 78 were introduced by the Constitution Amendment Act No. 14 of 2002. Our perusal of the relevant Hansard, produced by the respondents' counsel without objection from the other side, confirms that these amendments were prompted by dissatisfaction on the part of the people of Barbados with certain decisions of the JCPC and the resolve of the Barbados Parliament to restrict at least, if not negate, the effects of these decisions. The respondents were convicted and sentenced before the amendments came into force but it was submitted in writing on their behalf that the new sub-sections applied to them. It has not however proved necessary for us to rule on this point and accordingly we decline to do so.

REVIEWABILITY OF THE PREROGATIVE OF MERCY

[24] Mr.. Forde argued, on behalf of the Crown, that section 78 had codified, preserved and institutionalised the prerogative of mercy. He submitted that the section ought not to be regarded as a mere statutory power subject to judicial review. There is of course authority for the proposition that placing a prerogative power in a statute renders the body exercising the power subject to judicial review. In C. O. Williams Co. Ltd. v. Blackman and another[FN6], Lord Bridge of Harwich stated:

"It is trite law that when the exercise of some governmental function is regulated by statute, the prerogative power under which the same function may have previously been exercised is superseded and, so long as that statute remains in force, the function can only be exercised in accordance with its provisions".

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[FN6] (1994) 45 WIR 94 at page 99J; [1995] 1 WLR 102 @ 108
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[25] More recently, in Mowit vs. The DPP of Mauritius[FN7], their Lordships accepted as the "ordinary if not the invariable rule", the observation of Lloyd LJ in R v Panel on Take-overs and Mergers, Ex p Datafin PLC[FN8], that "If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review".

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[FN7] [2006] UKPC 20
[FN8] [1987] QB 815 at page 847
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[26] The decision of the House of Lords in Re Council of Civil Service Unions[FN9] ("the CCSU case") marked a defining point in the approach of the courts to the judicial reviewability of prerogative powers. In the distant past, courts and text-book writers regarded the acts of the sovereign as 'irresistible and absolute'. On this basis courts confined themselves merely to an inquiry into the existence and extent of prerogative powers. Their Lordships' speeches in the CCSU case emphatically endorsed the break with this approach. The modern view is that courts today will review a prerogative power once the nature of its subject-matter renders it justiciable. What is now pivotal to a determination of the reviewability of a prerogative power is not so much the source of the power but rather its subject-matter. In the CCSU case, Lord Fraser stated at page 399E :

"...whatever their source, powers which are defined, either by reference to their object or by reference to procedures for their exercise, or in some other way, and whether the definition is expressed or implied, are in my opinion normally subject to judicial control to ensure that they are not exceeded. By "normally" I mean provided that considerations of national security do not require otherwise".

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[FN9] [1985] AC 374
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[27] Lord Diplock's opinion was that procedural impropriety could well be a ground for judicial review of a decision made under powers of which the ultimate source was the prerogative. At page 410C-D, after noting that prerogative powers derive their source from the common law, Lord Diplock saw:

". no reason why simply because a decision-making power is derived from a common law and not a statutory source it should for that reason only be immune from judicial review." (his emphasis)

[28] In Regina v Secretary for the Home Dept, ex parte Fire Brigades Union[FN10], Lord Browne-Wilkinson, in the House of Lords, reaffirmed that:

"judicial review is as applicable to decisions taken under prerogative powers as to decisions taken under statutory powers save to the extent that the legality of the exercise of certain prerogative powers [e.g. treaty making] may not be justiciable".

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[FN10] (1995) 2 AC 553 at page 553C-D;
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[29] Lord Roskill, in the CCSU case, expressed the view that the prerogative of mercy, like treaty-making, fell into a special class of prerogative powers that were unreviewable. Ten years before that, Lord Diplock, delivering the advice of the JCPC in de Freitas v Benny[FN11] had rejected submissions that a condemned man was entitled to be shown the material that was to be placed before the Advisory Committee on the prerogative of mercy and to be heard by that committee. The JCPC held then that "a convicted person has no legal right even to have his case considered."

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[FN11] (1976) AC 239; (1975) 27 WIR 318
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[30] Citing de Freitas v Benny and the speech of Lord Roskill in the CCSU case, Mr.. Forde argued forcefully that mercy was not the subject of legal rights and that the prerogative of mercy was therefore not subject to review by the courts. The decision in de Freitas v Benny was followed by the JCPC as recently as 1996 in Reckley v Minister of Public Safety and Immigration[FN12]. It must be borne in mind however that, as Lord Diplock himself acknowledged in the CCSU case, the law relating to judicial control of administrative action is a developing one. Indeed, Lord Diplock prefaced his judgment in the CCSU case by noting that this area of the law had been "virtually transformed" in the three decades immediately preceding. It should come as no surprise that, in the thirty years since de Freitas v Benny, ongoing development of this area of the law should have cast a different light upon Lord Diplock's famous aphorism in de Freitas that mercy begins where legal rights end. In particular, the modern approach to human rights with its emphasis on procedural fairness was obviously capable of impacting upon the reviewability of the prerogative of mercy.

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[FN12] (1996) AC 527; (1996) 47 WIR 9
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[31] In light of these developments, the exercise of the prerogative of mercy has fallen under greater scrutiny, especially in those states whose Constitutions permit, or specifically sanction, retention of the mandatory death penalty for the crime of murder. The occasion on which the prerogative of mercy is exercised is the final, and in mandatory death penalty regimes, the only, opportunity a convicted murderer has to point to the particular circumstances of his case and to argue by reference to them that he should not be executed. Whether he is or is not ultimately put to death by the State depends not just on the substantive exercise of the prerogative of mercy but also on the procedures governing and leading up to its exercise. The quality and nature of the advice given to the Governor-General bear a direct relationship to the quality and nature of the process followed by the BPC in coming to its decision.

[32] In spite of de Freitas v Benny, the JCPC has over the years handed down decisions that are inconsistent with the supposed immunity of the exercise of the prerogative of mercy from judicial scrutiny. The broad view contended for by Mr.. Forde QC, that a condemned man has no legal rights, does not, for example, sit well with the decisions in Abbott v The Attorney-General[FN13], where the JCPC observed that due process of law must continue to be observed in the case of a condemned man, and Guerra v Baptiste13 where the Board held that justice and humanity dictate that to execute a man without giving him reasonable notice of the time of his execution, would constitute cruel and unusual punishment contrary to section 5(2)b of the Trinidad & Tobago Constitution.

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[FN13] (1979)32 WIR 347; [1979] 1 WLR 1342
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[33] In Burt v Governor-General[FN14], Cooke P, delivering the judgment of the New Zealand Court of Appeal, did not regard as contrary to principle the claim that courts should be prepared to review the exercise of the prerogative of mercy. After a review of the relevant authorities, including the House of Lords decision in the CCSU case, Cooke P concluded at page 9A-B that "... it would be inconsistent with the contemporary approach to say that merely because it is a pure and strict prerogative power, its exercise or non-exercise must be immune from curial challenge".

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[FN14] [1996] AC 397; (1995) 47 WIR 439
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[34] Closer to home, Fitzpatrick JA, in Yassin v Attorney-General of Guyana[FN15], with respect to the prerogative of mercy, held at page 117A that:

"In this case justiciability concerning the exercise of the prerogative of mercy applies not to the decision itself but to the manner in which it is reached. It does not involve telling the Head of State whether or not to commute. And where the principles of natural justice are not observed in the course of the processes leading to its exercise, which processes are laid down by the Constitution, surely the court has a duty to intervene, as the manner in which it is exercised may pollute the decision itself".

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[FN15] [1993] 4 LRC 1
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[35] In R v Secretary of State for the Home Department, Ex parte Bentley[FN16] the Divisional Court, undeterred by the view expressed by Lord Roskill in the CCSU case that the exercise of the prerogative of mercy was not reviewable, stated:

"If, for example, it was clear that the Home Secretary had refused to pardon someone solely on the grounds of their sex, race or religion, the courts would be expected to interfere and, in our judgment, would be entitled to do so".

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[FN16] [1994] QB 349
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[36] In Lewis v The Attorney General of Jamaica, where provisions of the Jamaica Constitution similar to those of Barbados were construed, the JCPC finally put the matter to rest. Their Lordships decided that de Freitas v Benny and Reckley should be overruled. Lord Hoffmann, a member of the Reckley panel, dissented but his dissent on this subject addressed itself more to the principle that the Board should not overrule a considered decision of its own so recently given. In Lewis, the JCPC held that the processes involved in the exercise of mercy were not beyond review by the courts. The judgment stated at page 76C that:

"On the face of it there are compelling reasons why a body which is required to consider a petition for mercy should be required to receive the representations of a man condemned to die and why he should have an opportunity in doing so to see and comment on the other material which is before that body. This is the last chance and insofar as it is possible to ensure that proper procedural standards are maintained that should be done. Material may be put before the body by persons palpably biased against the convicted man or which is demonstrably false or which is genuinely mistaken but capable of correction. Information may be available which by error of counsel or honest forgetfulness by the condemned man has not been brought out before. Similarly, if it is said that the opinion of the Jamaican Privy Council is taken in an arbitrary or perverse way ... or is otherwise arrived at in an improper, unreasonable way, the court should prima facie be able to investigate".

[37] It is instructive to note that their Lordships regarded the act of clemency as part of the whole constitutional process of conviction, sentence and the carrying out of the death sentence. This mirrored the view of Telford Georges, P. in Lauriano v Attorney-General of Belize[FN17] where, in response to counsel's submissions on the constitutionality of the mandatory death penalty, the learned President, at page 91C-D noted, in reference to the section of the Belize Constitution establishing the Belize Advisory Council, that:

"It is artificial to attempt to view the mandatory sentence which the courts must impose separate and apart from the constitutional provisions for its review enshrined in section 54 of the Constitution. This process can supply the necessary flexibility. The character and record of the offender and the circumstances of the particular offence are open to consideration by the council".

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[FN17] (1995) 47 WIR 74
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[38] This notion that clemency may be regarded as linked to the sentencing process was advanced before the JCPC decided in Reyes v The Queen[FN18] that the mandatory death penalty infringed the constitutional guarantee against inhuman treatment. One of the central planks upon which the decision in Reyes rested was that the individualisation of a sentence is a matter for the judicial branch of Government and not for an Executive body. It is debatable therefore whether some of the ideas expressed in Lauriano and in Lewis with regard to the grant of clemency would retain the same force in those states in which the mandatory death penalty has been ruled unconstitutional and judges now have a discretion as to whether or not to impose a death sentence on a convicted murderer. There certainly is a good basis for arguing that the courts should be more willing to review the exercise of the prerogative of mercy in a system in which the death penalty is mandatory than in one in which it is discretionary.

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[FN18] [2002] 2 AC 235; (2002) 60 WIR 42
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[39] Mr.. Forde argued that this Court should decline to follow this aspect of the decision in Lewis and should instead, in effect, reinstate as the law of Barbados the decisions in de Freitas and Reckley. Mr.. Mendes SC submitted on behalf of the respondents that, even if we thought that Lewis was wrong on this or any of the other points it decided, we should nevertheless not differ from it in all the circumstances, even though it was open to us to do so. He proceeded to outline in great detail what those circumstances were. It is unnecessary for us to treat here with these very carefully prepared submissions of Mr.. Mendes because we are firmly of the view that the decision in Lewis on this point is correct. We agree with those who regard the power to confirm or commute a death sentence, particularly a mandatory one, as far too important to permit those in whom it is vested freedom to exercise that power without any possibility of judicial review even if they commit breaches of basic rules of procedural fairness. Rooted though they be in language and literature, conceptual differences between mercy and justice cannot justify denying to a man under sentence of death, an enforceable right to have the decision whether he is to live or die arrived at by a procedure which is fair.

[40] Mr.. Forde also urged us, in his written submissions, to give effect to the ouster clause contained in section 77(4) of the Constitution. That clause, in our view, provides no comfort to the Crown. Ever since the House of Lords decision in Anisminic v Foreign Compensation Commission[FN19], courts have made it clear that they will not be deterred by the presence of such ouster clauses from inquiring into whether a body has performed its functions in contravention of fundamental rights guaranteed by the Constitution, and in particular the right to procedural fairness. See: Thomas v Attorney-General[FN20], Attorney-General v Ryan[FN21], Lauriano v Attorney-General[FN22] and Ulufa'alu v Attorney-General[FN23].

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[FN19] [1969] 2 AC 147
[FN20] (1981) 32 WIR 375 at 393-394; [1982] AC 113
[FN21] [1980] AC 718 at 730
[FN22] (supra) at 80F, 90-91
[FN23] [2005] 1 LRC 698 at 708, para 33
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[41] The Barbados Court of Appeal held, correctly in our view, that the BPC was a decision-making body and that the Court may, in appropriate proceedings, either set aside a decision of that body or declare it to be a nullity. There was nothing to prevent the Court from examining the procedure adopted by the BPC and testing it for procedural fairness by reference to the rules of natural justice, and, for compliance with the fundamental rights and freedoms recognised in the Constitution. If the procedure adopted failed that test, then there was a breach of the respondents' right to the protection of the law, one of the fundamental human rights enumerated and recognised in section 11 of the Constitution. The right of an aggrieved person to approach the Court for redress and the power of the Court to grant such redress, are expressly conferred by section 24 of the Barbados Constitution, but only in respect of breaches that run foul of the provisions of sections 12 to 23 of the Constitution. We do not, however, accept Mr.. Forde's submission that the Court is powerless to remedy a breach of the constitutionally recognised right to the protection of the law if that breach does not involve a contravention of any of the sections numbered 12 to 23. While this issue is discussed more fully later in this judgment at [57] - [66], it is our view that the Court quite independently of section 24, has an implied or inherent power to give redress for such a violation.[FN24] The question, therefore, is whether there was such a breach in this case and this leads us to a consideration of the second issue.

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[FN24] See: Maharaj v A.G. of Trinidad & Tobago (No. 2) [1979] AC 385; (1978) 2 AC 228 and Gairy v A.G. of Grenada (1999) 59 WIR 174; [2002] 1 AC 167
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ISSUE TWO
THE EFFECT OF UNINCORPORATED INTERNATIONAL HUMAN RIGHTS TREATIES ON THE CARRYING OUT OF A DEATH SENTENCE

[42] The treaties being referred to under this issue are treaties that have been ratified by the Executive but not implemented by Parliament. It was pursuant to a treaty of this type that the respondents, having completed all their domestic appeals, were at liberty to petition international human rights bodies and complain to them about alleged violations by Barbados of its treaty obligations. They both opted to file such petitions. After judgment was reserved in this appeal, we were informed by the respondents' counsel that their petitions lodged with the Inter-American Commission for Human Rights, had been referred to the Inter-American Court for adjudication.

[43] The question which confronted the Court of Appeal was whether there was an obligation on the part of the BPC to await the processing of those petitions so that it could take into account the report of the Commission as part of its deliberative process. Put another way, is a State required to defer execution of a convicted murderer until the man has completed any application he has made to an international body pursuant to a ratified treaty? The Crown took the position that the Executive was under no obligation to wait; that, on this point, Lewis was wrongly decided and that this Court should overturn Lewis. The respondents submitted that the Executive was under an obligation to wait; that before the BPC tendered its advice to the Governor-General, it was obliged to consider any report made by the international body and that, on this point as well, Lewis was rightly decided.

[44] These questions bring into focus a wide range of matters which we feel we should address. We propose therefore:

(a) to discuss the JCPC decision in Pratt and outline how, taken together with the decision in Lewis, an unsatisfactory dilemma has been created;
(b) to consider the relationship between domestic law and unincorporated treaties;
(c) to consider the enforcement of the right of a condemned man to the protection of the law, and
(d) to explore a body of Commonwealth case law with a view to ascertaining how Courts have approached the foregoing issues, and, in particular, to examine the judgments of the JCPC that specifically address the position of a condemned man seeking to take advantage of provisions in a ratified but unincorporated human rights treaty.

THE DILEMMA CREATED BY THE DECISIONS IN PRATT & MORGAN AND LEWIS

[45] Pratt v The Attorney General of Jamaica[FN25], a decision of the JCPC, delivered in 1993, had a seismic effect on capital punishment jurisprudence in the Commonwealth Caribbean. The judgment consolidated the appeals of two convicted murderers from Jamaica, Earl Pratt and Ivan Morgan. The case concerned delay in the execution of persons on death row and the constitutional consequences of such delay. In overruling its own decision given ten years before in Riley v The Attorney General of Jamaica[FN26], an expanded seven-member panel of the JCPC unanimously held that, where execution was delayed for more than five years after sentence, there would be strong grounds for believing that execution after such delay infringed the Constitution's prohibition against inhuman or degrading punishment. In other words, if a convicted murderer were to be executed, he should be executed as soon as lawfully possible after sentence. To have him linger on death row indefinitely, not knowing what his ultimate fate would be, was constitutionally impermissible. A period of five years following sentence was established as a reasonable, though not by any means inflexible, time-limit within which the entire post-sentence legal process should be completed and the execution carried out. If execution was not carried out within that time-frame, there was a strong likelihood that the court would regard the delay as amounting to inhuman treatment and commute the death sentence to one of life imprisonment. The JCPC arrived at the five-year standard by reasoning that an efficient justice system must be able to complete its entire domestic appellate process within two years and that eighteen months could safely be set aside for applications to international bodies to which condemned prisoners might have rights of access.

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[FN25] [1994] AC 1; (1993) 43 WIR 340
[FN26] [1983] 1 AC 719;
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[46] The radical nature of the decision in Pratt, the suddenness with which it was sprung, the apparent stringency of the time-period stipulated, the unpreparedness of the authorities to cope in an orderly manner with the far-reaching consequences of the decision, all of these factors raised tremendous concern on the part of Governments and members of the public in the Caribbean. The decision caused disruption in national and regional justice systems. Its effect was that, in one fell swoop, all persons on death row for longer than five years were automatically entitled to have, and had, their sentences commuted to life imprisonment. In Jamaica there were 105 such prisoners, in Trinidad & Tobago 53, and in Barbados 9. Justice systems were required to make sharp adjustments to their routines. Some countries were compelled to place on indefinite hold the hearing of all other appeals, both civil and criminal, in order to concentrate on those appeals that were in danger of running foul of the Pratt & Morgan guidelines.

[47] Now that the initial dislocation has generally abated, it must be acknowledged that prior to Pratt some States countenanced an unacceptably lax approach to the processing of their criminal appeals and a valuable consequence of the Pratt & Morgan decision is that it has forced justice systems in the Commonwealth Caribbean to deal with criminal appeals more efficiently and expeditiously. We respectfully endorse without reservation the proposition that the practice of keeping persons on death row for inordinate periods of time, is unacceptable and infringes constitutional provisions that guarantee humane treatment. In this respect, Pratt has served as an important reminder to all that the Constitution affords even to persons under sentence of death, rights that must be respected and that the true measure of the value of those rights is not just how well they serve the law-abiding section of the community, but also, how they are applied to those for whom society feels little or no sympathy.

[48] We have previously in this judgment referred several times to Neville Lewis v The Attorney General. In Lewis, the JCPC decided inter alia, that, where a State has ratified a treaty conferring on individuals the right to petition an international human rights body, a person sentenced to death by a court of that State is entitled by virtue of his constitutional right to the protection of the law, to require that the sentence of death passed on him be not carried out until his petition to the human rights body has been finally disposed of and the report of that body is available for consideration by the State authority charged with exercising the prerogative of mercy .

[49] We shall comment further in due course on the reasoning underpinning this aspect of the Lewis decision. It is sufficient to state here that Pratt and Lewis have the combined effect of creating a dilemma since a State Party to a human rights treaty like the ACHR has no control over the pace of proceedings before the relevant international human rights body and the standard prescribed in Pratt has come to be applied with guillotine-like finality. A State, for example, desirous of making good its pledge under Article 4(6) of the ACHR not to execute a prisoner while his petition is pending, may find that when the period of five years after conviction elapses, the international proceedings before the Commission or the Inter-American Court have not yet been completed. The result is that the State may ultimately through no fault of its own be unable to carry out the constitutionally sanctioned death penalty because of the conjoint effect of the decisions in Pratt and Morgan and Lewis. The sense of frustration on the part of regional governments in this Catch-22 situation is well illustrated in the following exchange between the Attorney-General of Barbados and the President of the Court of Appeal during the hearing of this case before that court:

ATTORNEY-GENERAL: My Lords, the Government of Barbados does not disregard its international treaty obligations. The Executive of Barbados does not take lightly its international treaty obligations. But what confronts the State of Barbados and what confronts Your Lordships today is a dilemma that is one perhaps that can be described appropriately in other jurisdictions as Hobson's choice; in our colloquial terms as being between the devil and the deep blue sea. That is the truth of the matter. That, were we as an Executive, to willingly agree that we should wait until the Inter-American system deliberates, knowing full well that even now the State of Barbados is involved in a matter since October 2002 and only in March 2004 was it referred to the Inter-American Court.. Knowing full well that even a year later, not much more has happened, and I say to Your Lordships that what allowing them –

WILLIAMS, P. JA: So the five years will run out.

ATTORNEY-GENERAL: Thank you, My Lord. So that is the problem. That we face coming into breach, into collision with the very same Barbados Constitution that we are bound to uphold...

[50] This "impossible position" of the Government, as Lord Goff described it in Thomas v Baptiste[FN27], gives a certain poignancy to this second issue. Of course, for the respondents, the issue has now become moot because the time permitted by Pratt for their execution has already expired and the commutation of their death sentences is no longer challenged. However, the matter is too important and too contentious to shelve on that basis. It was fully argued in the courts below and before us and the parties are entitled to have our ruling on it. Save to the extent that any recent statute may have affected its operation, Lewis currently represents the law of Barbados and the consequences and implications of that decision are important for Barbados. The law here is still evolving and there is every likelihood that this broad area of the law, namely, the legal impact of unincorporated international treaties upon the domestic body politic, will assume increasing importance given the tendency towards globalisation in the regulation of matters such as crime, trade, human rights and the protection of the environment, to mention but a few.

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[FN27] [2002] 2 A.C.1; (2002) 54 WIR 387
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THE RELATIONSHIP BETWEEN DOMESTIC LAW AND UNINCORPORATED TREATIES

[51] The State of Barbados ratified the ACHR on 5th November, 1981. Barbados did so with reservations but those reservations are not material to this judgment. Article 4 of the ACHR recognises the right of States to impose capital punishment for the most serious crimes but the Convention, like most other human rights treaties[FN28], discourages use of the death penalty. The penalty is not to be extended to crimes to which it does not presently apply. See: Art. 4(2). It shall not be re-established in States that have abolished it. See: Art 4(3). In Hilaire v Trinidad & Tobago[FN29], the Inter-American Court ruled that mandatory death sentences fall foul of the right to life. The Court has also declared that "without going so far as to abolish the death penalty, the Convention imposes restrictions designed to delimit strictly its application and scope, in order to reduce the application of the penalty and to bring about its gradual disappearance".[FN30]

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[FN28] See for example the International Covenant on Civil and Political Rights
[FN29] See: Case of Hilaire, Constantine and Benjamin et al. v Trinidad and Tobago, Judgment of June 21, 2002, Series C 94
[FN30] See: Advisory Opinion (OC-3/83) delivered on 8th September, 1983.
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[52] Article 4(6) of the ACHR is relevant to the case for the respondents. It states that:

"Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while such petition is pending decision by the competent authority" (emphasis added).

[53] The ACHR establishes the Inter-American Commission ("the Commission") and the Inter-American Court on Human Rights. Any citizen of a State Party may lodge a petition with the Commission complaining of a violation of the Convention. See: Art. 44. Such a petition is not admissible unless, inter alia, the petitioner has exhausted all remedies under domestic law and the petition is lodged within six months from the date of dismissal of the petitioner's final domestic appeal. See: Art. 46. Either the Commission or a State Party may refer a petition to the Inter-American Court for adjudication. By Article 68, the States Parties undertake to comply with the judgment of the court in any case to which they are parties.

[54] Some Commonwealth Caribbean countries, including Barbados, have also ratified the International Covenant on Civil and Political Rights (ICCPR) and also the Optional Protocol to the ICCPR. Like the ACHR, the ICCPR defines the fundamental rights that should be enjoyed by nationals of the States Parties. These rights include "the inherent right to life". Anyone sentenced to death has the right to seek pardon or commutation of the sentence which may be granted in all cases. The Optional Protocol imposes upon States Parties the obligation to recognise the competence of the Committee, an organ of the treaty, to receive and consider communications from individuals subject to its jurisdiction, who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. See: Art. 1. Subject to the provisions of Article 1, individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration. See: Art. 2.

[55] In states that international lawyers refer to as 'dualist', and these include the United Kingdom, Barbados and other Commonwealth Caribbean states, the common law has over the centuries developed rules about the relationship between domestic and international law. The classic view is that, even if ratified by the Executive, international treaties form no part of domestic law unless they have been specifically incorporated by the legislature. In order to be binding in municipal law, the terms of a treaty must be enacted by the local Parliament. Ratification of a treaty cannot ipso facto add to or amend the Constitution and laws of a State because that is a function reserved strictly for the domestic Parliament. Treaty-making on the other hand is a power that lies in the hands of the Executive. See: JHRayner (MincingLane) Ltd v Dept of Trade & Industry[FN31]. Municipal courts, therefore, will not interpret or enforce the terms of an unincorporated treaty. If domestic legislation conflicts with the treaty, the courts will ignore the treaty and apply the local law. See: The Parlement Belge[FN32].

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[FN31] [1990] 2 AC 418 at page 476; See also Thomas v Baptiste [2002] 2 A.C.1@ p 23 A-D per Lord Millett
[FN32] (1879) 4 PD 129
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[56] It does not at all follow that observance of these rules means that domestic courts are to have absolutely no regard for ratified but unincorporated treaties. The classic view is that the court will presume that the local Parliament intended to legislate in conformity with such a treaty where there is ambiguity or uncertainty in a subsequent Act of Parliament. In such a case, a municipal court will go only so far as to look at the treaty in order to try to resolve the ambiguity. See: R v Home Secretary, ex parte Brind[FN33] and R v Chief Immigration Officer, ex parte Salamat Bibi[FN34]

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[FN33] [1991] 1 A.C. 696
[FN34] [1976] 1 W.L.R. 979 @ 984 per Lord Denning, MR.
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ENFORCEMENT OF A CONDEMNED MAN'S RIGHT TO THE PROTECTION OF THE LAW

[57] Mr.. Forde submitted that in accordance with de Freitas v Benny, no constitutional rights of the respondents were infringed or at risk; that any entitlements the men might have were neither rights that could be enforced by virtue of section 24 of the Constitution nor indeed, rights for which a court could give constitutional relief; that even if the BPC in advising on the prerogative of mercy while the international proceedings were still pending had adopted a procedure in relation to the condemned men that was deemed to be unfair, the Court of Appeal could not properly commute the death sentences.

[58] These submissions call into question the nature and extent of the rights to which a condemned man is entitled. The particular right of the condemned man most heavily relied on by the respondents, was the right to the protection of the law. That right is referred to in section 11 of the Barbados Constitution. Section 11 is part of Chapter 3, the Chapter in the Constitution devoted to the protection of fundamental rights and freedoms of the individual. Chapter 3 embraces sections 11 through 27. Section 11 which is in the nature of a preamble, states the rights in the following manner:

"11. Whereas every person in Barbados is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely –

(a) life, liberty and security of the person;
(b) protection for the privacy of his home and other property and from deprivation of property without compensation;
(c) the protection of the law; and
(d)freedom of conscience, of expression and of assembly and association,

the following provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest" (our emphasis).

[59] Sections 12 to 23 of the Constitution (which we will refer to as 'the detailed sections') contain specific provisions for the enforcement of rights which either correspond exactly with those enumerated in section 11 or may be regarded as corollaries or components of them. By way of illustration, section 12 is expressly concerned with the right to life and section 16, with the right not to be deprived of property without compensation, both of which are referred to in section 11. On the other hand, the protection afforded by section 14 against slavery or forced labour, and by section 15 against torture or inhuman and degrading punishment or treatment, is not linked as a matter of language to any of the rights enumerated in section 11. But those rights are in substance connected with the liberty and security of the person, which are included in the rights listed in section 11 (a). In the case of the right to the protection of the law, the only express link between that right and any of the detailed sections is provided by the marginal note to section 18 which reads: 'Provisions to secure protection of law'. It is important to note that the pattern followed in these detailed sections is that each section normally begins with a prohibition against conduct which would violate the right or freedom that is being protected, followed by a fairly detailed exposition of the exceptions which the law may create to that prohibition. In other words, there is a broad statement of the right or freedom followed by a number of limitations on the protection afforded that right or freedom. Those exceptions or limitations serve to put into more specific and concrete terms the qualifications contained in section 11 to the effect that persons in Barbados are entitled to the fundamental rights and freedoms enumerated "subject to respect for the rights and freedoms of others and for the public interest". It is not unexpected, therefore, that the redress which section 24 of the Constitution provides for violation of these fundamental rights and freedoms, should be structured so as to take account of the exceptions and limitations contained in the detailed sections. Thus, the jurisdiction conferred by section 24 on the High Court to adjudicate allegations that any particular right has been, is being or is likely to be contravened and to fashion appropriate remedies for any contravention or likely contravention that it finds, is limited to cases which involve a contravention of one or other of the detailed sections. The question which arises is whether the court's power to enforce the right to protection of the law, and to grant a remedy for its breach, is limited to contraventions of section 18, that being the only one of the detailed sections which by its subject matter and its marginal note is linked to the protection of the law.

[60] In a fundamental respect, section 18 is different from the other detailed sections. In each of the others, the Constitution deals comprehensively with the relevant right or freedom. Where the extent or content of the right requires elucidation, that is provided (see for example section 19), and in all cases, any limitations on the enjoyment of the right are set out quite fully. There is, therefore, no scope for enforcement of the relevant right outside the four corners of the detailed sections. In the case of the right to the protection of the law, however, it is clear that section 18 does not provide, nor does it purport to provide, an exhaustive definition of what that right involves or what the limitations on it are. There is no mention in that section of the protection of the law, which is in itself an indication that section 18 is not intended to be an exhaustive exposition of that right. Indeed, the right to the protection of the law is so broad and pervasive that it would be well nigh impossible to encapsulate in a section of a constitution all the ways in which it may be invoked or can be infringed. Section 18 deals only with the impact of the right on legal proceedings, both criminal and civil, and the provisions which it contains are geared exclusively to ensuring that both the process by which the guilt or innocence of a man charged with a criminal offence is determined as well as that by which the existence or extent of a civil right or obligation is established, are conducted fairly. But the right to the protection of the law is, as we shall seek to demonstrate, much wider in the scope of its application. The protection which this right was afforded by the Barbados Constitution, would be a very poor thing indeed if it were limited to cases in which there had been a contravention of the provisions of section 18.

[61] The Constitutions of both Jamaica and the Bahamas contain provisions which mirror exactly sections 11 to 24 of the Barbados Constitution though the numbering of these sections differs from one constitution to another. In the Jamaican case of Lewis, the right to protection of the law was held to be breached by the intervention of the Executive before the international process was completed. There is nothing in section 18 nor in its Jamaica equivalent, which expressly prohibits such an intervention, though no one doubts that on the premise which the JCPC accepted, namely that access to the international body had been made part of the domestic justice system, the attempt by the State to hang Lewis before completion of the international process was rightly held to be a breach of his right to the protection of the law. Their Lordships in that case moreover do not appear to have thought that this was a breach for which there was no constitutional remedy even though it did not involve any contravention of section 20 of the Jamaican Constitution which corresponds with section 18 of the Barbados Constitution.

[62] The wide scope of the protection of the law can be demonstrated by reference to the authorities. In Ong Ah Chuan v Public Prosecutor[FN35] for example, Lord Diplock noted that:

".a Constitution founded on the Westminster model and particularly in that part of it that purports to assure to all individual citizens the continued enjoyment of fundamental liberties or rights, references to "law" in such contexts as "in accordance with law," "equality before the law," "protection of the law" and the like, in their Lordships' view, refer to a system of law which incorporates those fundamental rules of natural justice that had formed part and parcel of the common law of England that was in operation in Singapore at the commencement of the Constitution".

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[FN35] [1981]A.C. 648
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[63] More recently, in Thomas v Baptiste[FN36], Lord Millett, in reference to the expression "due process of law" found in the Trinidad & Tobago Constitution, stated at page 8:

"In their Lordships' view, "due process of law" is a compendious expression in which the word "law" does not refer to any particular law and is not a synonym for common law or statute. Rather, it invokes the concept of law itself and the universally accepted standards of justice observed by civilised nations which observe the rule of law; see the illuminating judgment of Phillips JA in Lasalle v Attorney-General (1971) 18 WIR 379, from which their Lordships have derived much assistance.
The clause thus gives constitutional protection to the concept of procedural fairness.".

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[FN36] [2000] 2 AC 1 @ 22; (2002) 54 WIR 387 @ 421
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[64] We are of the view that Lord Millett's observations on the meaning of the word "law" in the context of the phrase "due process of law" are equally applicable to the phrase "protection of the law". Procedural fairness is an elementary principle permeating both concepts and therefore, pursuant to section 11, a condemned man has a constitutional right to procedural fairness as part of his right to protection of the law. Correspondingly, the courts have an inherent jurisdiction, and a duty, to grant an appropriate remedy for any breach of that right.

[65] Given the similarities identified between the Constitutions of the Bahamas and Barbados, we would respectfully adopt the view of Lord Goff, speaking for the JCPC in Reckley v Minister of Public Safety (No. 2)[FN37], an appeal from the Bahamas, when he stated at page 19B that:

"…After his rights of appeal are exhausted, he [i.e. a convicted murderer] may still be able to invoke his fundamental rights, and in particular his right to the protection of the law, even after he has been sentenced to death. If therefore it is proposed to execute him contrary to the law, . he can apply to the Supreme Court for redress under article 28 of the Constitution".

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[FN37] (1996) 47 WIR 9 at 19B; [1996] 1 AC 527 at 540 C-D
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[66] If a court were of the view that a condemned man's right to the protection of the law was or was likely to be infringed by procedures of the BPC that were deemed unfair, the appropriate relief normally would be to quash the decision of the BPC to give the Governor-General the advice which it did and to stay any impending execution that was based on that advice. In the case of the respondents however, the Court of Appeal was entitled to commute the sentences because it rightly anticipated that, in the circumstances then existing, it would have been impossible for the international process to be completed before expiry of the five year deadline established by Pratt.

EXPLORING THE CASE LAW

[67] The Barbados Court of Appeal was obliged to consider the current law regarding the position of a condemned man who has filed a petition with an international body as determined in Lewis. Since Lewis followed and extended Thomas v Baptiste, these two cases must be discussed together. In Thomas, the question arose in the following way. The Government of Trinidad & Tobago had issued a document entitled 'Instructions relating to applications from persons under sentence of death'. These Instructions established successive time-limits within which the petitions of condemned men to the Commission and to the UNHRC were required to be processed. The appellants, convicted murderers, having exhausted their domestic appeals, petitioned the Commission. Before the Commission's proceedings were concluded, death warrants were read to the appellants. The appellants filed constitutional motions. Before the Board, the main issue was whether the appellants had a constitutional right not to be executed while their petitions before the Commission were pending.

[68] Lord Millett, on behalf of a majority of 3 to 2, held that the Instructions were unlawful because they were disproportionate in that they "curtailed the petitioners' rights further than was necessary to deal with the mischief created by the delays in the international appellate processes". In his view, it would have been sufficient to provide an outside time-limit of say, eighteen months, but it was unnecessary and inappropriate to provide separate and successive time limits for each application and each stage of each application.

[69] Lord Millett then analysed and traced the history of the due process clause in the Constitution of Trinidad & Tobago and concluded that

"…the clause extends to the appellate process as well as the trial itself. In particular, it includes the right of a condemned man to be allowed to complete any appellate or analogous legal process that is capable of resulting in a reduction or commutation of his sentence before the process is rendered nugatory by executive action".

[70] After duly noting and accepting the arguments of counsel for the State that unincorporated international treaties cannot alter domestic law, Lord Millett continued that

".By ratifying a treaty which provides for individual access to an international body, the Government made that process for the time being part of the domestic criminal justice system and thereby, temporarily at least, extended the scope of the 'due process' clause in the Constitution.
Their Lordships note that a similar argument was rejected in Fisher (No. 2). They observe, however, that the Constitution of the Bahamas which was under consideration in that case does not include a 'due process' clause similar to that contained in article 4(a) of the Constitution of Trinidad & Tobago".

[71] Lords Goff and Hobhouse, in a powerful dissent, emphasised that in a liberal democracy such as Trinidad & Tobago, the Executive has no right or capacity to make law and that references to "law" in the Constitution refer only to municipal law. Due process of law could therefore relate only to domestic and not international law. The terms of the unincorporated treaties were incapable of conferring upon the condemned man any rights which the courts were at liberty to enforce. The treaties could not be invoked as a basis for alleging an infringement of the Constitution. Sensitive to the practical effect of their dissent, the minority stated that:

"...An unincorporated treaty cannot make something due process; nor can such a treaty make something not due process, unless some separate principle of municipal law makes it so...
.Whilst it is of course correct that the content of what is 'due process of law' may change from time to time (eg the reduction or the extension of the right to trial by jury), the change must derive from a change in the law of the Republic.The applicants may be at liberty to complain to the human rights commissions but they have no right to do so. If the treaty purports to confer such a right, it has only done so for the purpose of international law and not for the purpose of the law of the Republic."

[72] Lewis and others v The Attorney-General[FN38] was decided in September, 2000. It is a case from Jamaica. Each of the appellants had been convicted of murder, sentenced to death and had exhausted his domestic appeals. The Governor- General had earlier issued instructions published on 7th August 1997 laying down a six-month timetable for the conduct of applications to international human rights bodies. Significantly, while the Constitution of Jamaica confers a right to the protection of the law, it does not have a due process clause like the one in Trinidad & Tobago. The men brought constitutional motions challenging the validity of their death sentences on a variety of grounds. One of these was that they had a right not to be executed before the final reports on their petitions to the Commission had been received.

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[FN38] [2001] 2 A.C. 50; (1999) 57 WIR 275
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[73] The Board was divided 4 to 1 on that issue. In the course of the majority judgment delivered by Lord Slynn it was stated that:

"Their Lordships do not consider that it is right to distinguish between a Constitution which does not have a reference to "due process of law" but does have a reference to "the protection of the law". They therefore consider that what is said in Thomas v Baptiste to which they have referred is to be applied mutatis mutandis to the Constitution like the one in Jamaica which provides for the protection of the law. In their Lordships' view when Jamaica acceded to the American Convention and to the International Covenant and allowed individual petitions the petitioner became entitled under the protection of the law provision in section 13 to complete the human rights petition procedure and to obtain the reports of the human rights bodies for the Jamaican Privy Council to consider before it dealt with the application for mercy and to the staying of execution until those reports had been received and considered".

[74] It is to be noted that in this judgment the right of the condemned man to complete the process he initiated before the human rights body was stated in absolute terms and, in contrast to the judgment in Thomas, nothing was said to suggest that the corresponding obligation of the Jamaican Privy Council to await the outcome of that process, was limited to waiting a reasonable time.

[75] Lord Hoffmann, who had earlier, in Higgs v Minister of National Security[FN39], a case from the Bahamas, come to the opposite conclusion, issued a stinging dissent in these terms:

"On the Inter-American Commission issue, the majority have found in the ancient concept of due process of law a philosopher's stone, undetected by generations of judges, which can convert the base metal of executive action into the gold of legislative power. It does not however explain how the trick is done. Fisher v Minister of Public Safety and Immigration (No. 2) [2000] 1 A.C. 434 and Higgs v Minister of National Security [2000] 2 W.L.R. 1368 are overruled but the arguments stated succinctly in the former and more elaborately in the latter are brushed aside rather than confronted. In particular, there is no explanation of how, in the domestic law of Jamaica, the proceedings before the Commission constitute a legal process (as opposed to the proceedings of any other non-governmental body) which must be duly completed. Nor can there be any question of the prisoners having had a legitimate expectation (as the term is now understood in administrative law) that the State would await a response to their petitions. All the petitions were presented after the Government had issued the Instructions and a legitimate expectation can hardly arise in the face of a clear existing contrary statement of policy. In Thomas v Baptiste [1999] 3 W.L.R. 249, 262-263 an argument based upon legitimate expectation was summarily rejected".

----------------------------------------------------------------------------------------------------------------
[FN39] [2000] 2 A.C. 228; (1999) 55 WIR 10
----------------------------------------------------------------------------------------------------------------

[76] Mr.. Shepherd QC urged us to accept the decisions in Thomas and Lewis as good law for the reasons given by their Lordships and to apply it to the decision of the BPC to advise the Governor-General on the exercise of the prerogative of mercy in this case. We would respectfully agree that it would not be right for the BPC, before tendering its advice to the Governor-General, wholly to ignore either the fact that a condemned man has a petition pending before an international body or that a report has been made by such a body. We are unable to accept however the reasoning which underpins the decisions in Thomas and Lewis. Many of the trenchant criticisms of Lord Hoffmann in Lewis and Lord Goff and Lord Hobhouse in Thomas appear, with respect, to have merit. The majority judgments in those two cases did not explain how mere ratification of a treaty can add to or extend, even temporarily, the criminal justice system of a State when the traditional view has always been that such a change can only be effected by the intervention of the legislature, and not by an unincorporated treaty. It seems to us that the effect which the majority gave to the treaty i.e. expansion of the domestic criminal justice system so as to include the proceedings before the Commission, was inconsistent with their protestations of support for the strict dualist doctrine of the unincorporated treaty. Nor did the judgments explain how, if ratification has that effect, the appropriate domestic authorities can be entitled to impose even reasonable time-limits for the disposal of the case in the absence of any such limitation on the State's obligation in the treaty itself. In the result, both the accretion to the domestic criminal justice system and its disappearance after the lapse of a reasonable time according to Lord Millett's judgment in Thomas, were unsupported by legal principle.

[77] We have examined a body of cases, including decisions of the JCPC, which we considered might assist us in arriving at the admittedly desirable result reached in Thomas by a route that appears to us to pose fewer problems. Several of the cases we have looked at have adverted to the doctrine of legitimate expectation. Unfortunately, the potential use of this doctrine was not really argued before us by either side. Accordingly, we were not specifically directed to the evidence on which any such expectation might be grounded. Nor were we addressed on the principles that would govern it. Surprisingly, the respondents made only passing reference to it in their written submissions although in the affidavit of Lennox Ricardo Boyce sworn on 16th September, 2004, he declares: "I have now and always had a legitimate expectation that I would be allowed to exhaust my rights of appeal to all of the relevant International Human Rights Commissions and that no execution of the sentence of death would be effected until those appeals had been exhausted". Notwithstanding the dearth of argument presented to us on this issue, there is a body of relevant material before us upon which we are able to draw.

LEGITIMATE EXPECTATION AND UNINCORPORATED TREATIES

[78] In dualist states there have been several strategies employed in an effort to finesse the rule that unincorporated treaties have no effect in domestic law, and these have met with varying degrees of success. The strategies include, but are not limited to, the invoking of the doctrine of legitimate expectation.

[79] The English courts dealt with the matter of the effect of unincorporated treaties in Regina v Secretary of State for the Home Department, ex parte Brind[FN40]. The Secretary of State had issued directives under a statute requiring journalists and media houses to refrain from broadcasting "any matter" consisting of direct statements by representatives of organisations proscribed in Northern Ireland and Great Britain. Britain had not yet incorporated the European Convention for the Protection of Human Rights but the directives were challenged on the basis, inter alia, that they interfered with the right to freedom of expression. Counsel submitted that when a statute conferred upon an administrative body a discretion capable of being exercised in a way which infringes any basic human right protected by the Convention, it may be presumed that the legislative intention was that the discretion should be exercised within the limitations imposed by the Convention. This argument found no favour with the English courts. The House of Lords, upholding a unanimous Court of Appeal, firmly set its face against any importation of unincorporated international law into the domestic field. Unincorporated treaties may be resorted to in order to help resolve some uncertainty or ambiguity in municipal law but they could not be a source of rights and obligations on the domestic plane. In this context, it is useful to observe that in Britain parliament, and not a written Constitution, is supreme.

----------------------------------------------------------------------------------------------------------------
[FN40] supra
----------------------------------------------------------------------------------------------------------------

[80] Tavita v Minister of Immigration[FN41] is a case from New Zealand. In that case, a man, whose application for residence in New Zealand had been declined, was ordered to be deported. Before execution of the warrant for his deportation he fathered a child in New Zealand and married the child's mother. When attempts were made to execute the deportation warrant he brought judicial review proceedings. He argued that the relevant Minister had not taken account of the International Covenant on Civil and Political Rights and the First Optional Protocol of the United Nations Convention on the Rights of the Child. These treaties enjoin States Parties to ensure that a child shall not be separated from his or her parents against their will, except when the competent authorities determine that such separation is necessary for the best interests of the child.

----------------------------------------------------------------------------------------------------------------
[FN41] [1994] 1 LRC 421
----------------------------------------------------------------------------------------------------------------

[81] The State submitted that the Minister and the relevant Department were entitled to ignore the unincorporated international treaties. Cooke P., delivering the judgment of the New Zealand Court of Appeal, found that submission "unattractive". Declaring that the law as to the bearing on domestic law of international rights and instruments declaring them is undergoing evolution, he noted that

".. .an aspect to be borne in mind may be one urged by counsel for the appellant: that since New Zealand's accession to the Optional Protocol, the United Nations Human Rights Committee is in a sense part of this country's judicial structure, in that individuals subject to New Zealand jurisdiction have direct recourse to it.".

[82] The stay against the man's deportation was continued and the appeal adjourned sine die so that the man's application could be reconsidered in light of the international treaties and the birth of his New Zealand child. Brind was considered by Cooke P. and regarded by him as a "controversial decision".

[83] In Minister of State for Immigration and Ethnic Affairs v Teoh[FN42], a decision of the High Court of Australia given in April, 1995, the facts were similar to those in Tavita. The question arose as to whether Australia's ratification of the Convention on the Rights of the Child gave rise to any legitimate expectation on the part of a Malaysian man who had entered Australia and married an Australian woman with whom he had young children. In holding that the man's residence application had to be reviewed in light of the Convention, Chief Justice Mason and Deane J. in their joint judgment held that:

".ratification by Australia of an international Convention is not to be dismissed as a merely platitudinous or ineffectual act., particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a Convention is a positive statement by the Executive government of this country to the world and to the Australian people that the Executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention . It is not necessary that a person seeking to set up such a legitimate expectation should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it"[FN43].

McHugh J dissented, holding that no legitimate expectation arose.

----------------------------------------------------------------------------------------------------------------
[FN42] [1995] 3 LRC 1
[FN43] See page 17 @ [34]
----------------------------------------------------------------------------------------------------------------

[84] Baker v Canada (Minister of Citizenship and Immigration)[FN44] is a decision of the Supreme Court of Canada decided in 1999. The applicant was a Jamaican woman who had entered Canada in 1981 and had remained and given birth to four Canadian-born children. A deportation order was made against her. She unsuccessfully applied for judicial review. As Canada had ratified the International Convention on the Rights of the Child, a question was certified as to whether the immigration authorities must treat the best interests of a Canadian child as a primary consideration in assessing the applicant's status. The Court of Appeal had held firstly, that the Convention could not have legal effect in Canada as it had not been implemented through domestic legislation and secondly, that the Convention could not be interpreted to impose an obligation upon the government to give primacy to the interests of the children in deportation proceedings.

----------------------------------------------------------------------------------------------------------------
[FN44] [1999] 2 SCR 817
----------------------------------------------------------------------------------------------------------------

[85] L'Heureux-Dube J. writing for a majority of the Supreme Court, expressed the view that "the articles of the Convention and their wording did not give rise to a legitimate expectation on the part of Ms. Baker that when the decision on her ... application was made, specific procedural rights above what would normally be required under the duty of fairness would be accorded, a positive finding would be made, or particular criteria would be applied"[FN45]. The Convention was held not to be the equivalent of a government representation about how such applications would be decided. The Court nonetheless found in the fact of ratification of the Convention, "an indicator of the importance of considering the interests of children when making a compassionate and humanitarian decision". The values and principles espoused by the Convention could not be ignored by the decision¬maker. Failure to give serious consideration to the interests of the applicant's children would render unreasonable an exercise of the discretion. The Court left open the possibility that an international instrument ratified by Canada could in other circumstances give rise to a legitimate expectation.

----------------------------------------------------------------------------------------------------------------
[FN45] Supra at [39]
----------------------------------------------------------------------------------------------------------------

[86] Two judges of the Court joined in issuing a strong dissent to the majority's views on the effect of unincorporated treaties. Iacobucci J., with Cory J. concurring, stated that:

"It is a matter of well-settled law that an international convention ratified by the executive branch of government is of no force or effect within the Canadian legal system until such time as its provisions have been incorporated into domestic law by way of implementing legislation."[FN46].

----------------------------------------------------------------------------------------------------------------
[FN46] Ibid at [79]
----------------------------------------------------------------------------------------------------------------

[87] The Indian courts adopt a robust approach to the matter of the direct enforcement in domestic law of the terms of human rights treaties but undoubtedly their boldness is encouraged, if not mandated, by Article 51(c) of the Indian Constitution which requires the State to "endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another". Thus, in People's Union for Civil Liberties v Union of India[FN47] the Indian Supreme Court, basing itself at length on Teoh, held that the provisions of the International Covenant on Civil and Political Rights "which elucidate and go to effectuate the fundamental rights guaranteed by our Constitution, can be relied upon by courts as facets of those fundamental rights and, hence, enforceable as such".

----------------------------------------------------------------------------------------------------------------
[FN47] [1999] 2 LRC 19
----------------------------------------------------------------------------------------------------------------

[88] The question of the effect, if any, of the European Convention on the immigration policies of the United Kingdom has been the subject of several court decisions in England. In one such case, R v Secretary for the Home Department ex parte MohammedHussain Ahmed[FN48], the argument was made that when the Secretary of State exercised a prerogative power, he was obliged to do so in conformity with the treaty obligations of the State. This position was rejected by Lord Woolf MR. who nevertheless stated that:

"...the entering into a treaty by the Secretary of State could give rise to a legitimate expectation upon which the public in general are entitled to rely. Subject to any indication to the contrary, it could be a representation that the Secretary of State would act in accordance with any obligations which he accepted under the treaty. The legitimate expectation could give rise to a right to relief, as well as additional obligations of fairness, if the Secretary of State, without reason, acted inconsistently with the obligations which this country has undertaken. This is very much the approach adopted by the High Court of Australia in the immigration case of Minister of State for Immigration and Ethnic Affairs v Teoh".

----------------------------------------------------------------------------------------------------------------
[FN48] [1999] Imm AR 22
----------------------------------------------------------------------------------------------------------------

[89] The views of Woolf MR. on the creation of a legitimate expectation were endorsed by Hobhouse LJ who noted that the expectation was "not based upon any actual state of knowledge of individual immigrants or would be immigrants."

[90] The position contended for by Lord Woolf MR. was briefly discussed in Regina v Director of Public Prosecution ex parte Kebilene and others[FN49]. Before the Divisional Court (Lord Bingham CJ, Laws LJ and Sullivan J) a submission was made that applicants had a legitimate expectation founded on ratification of the unincorporated European Convention for the Protection of Human Rights. Lord Bingham held that no legitimate expectation could have thereby arisen because when the Convention had been ratified over fifty years previously it was never assumed that such ratification would have had any practical effect on British law and practice. Moreover, the terms of the Act that had since been passed to incorporate the Convention but which had not yet been brought into force, expressly contradicted any such expectation. Further, the relevant decision-maker (in this case the DPP) was a body independent of the Executive. Lord Justice Laws for his part sought to contain the scope of the remarks of Lord Woolf in Ahmed and to reaffirm the strictness of the ruling in Brind. The case went to the House of Lords[FN50] but the argument on legitimate expectation was not pressed there.

----------------------------------------------------------------------------------------------------------------
[FN49] [2000] 2 A.C. 326
[FN50] [2000] 2 AC 326 @ 358 et seq.
----------------------------------------------------------------------------------------------------------------

[91] Ahani v Regina[FN51] is a decision of the Court of Appeal for Ontario delivered in February, 2002. The appellant, an Iranian, was ordered deported from Canada on the basis that reasonable grounds existed to believe that he was a member of a terrorist organisation. He was notified of the case against him and given an opportunity to make written submissions. He submitted that there was a risk that he would be subjected to torture upon his return to Iran. He appealed to the Supreme Court the decision to have him deported. The Supreme Court upheld the decision of the Minister. Ahani then filed a communication with the United Nations under the Optional Protocol of the ICCPR. The Committee made an interim measures request that Canada stay the deportation order until it had considered the communication. The question before the Court was whether it was incumbent upon Canada to comply with the interim measures request. Among the authorities considered were Baker and the JCPC's judgments in Thomas, Higgs and Lewis.

----------------------------------------------------------------------------------------------------------------
[FN51] 208 D.L.R. (4th) 66
----------------------------------------------------------------------------------------------------------------

[92] The Appeal Court was divided 2 to 1. The majority held that the principles of fundamental justice espoused were not engaged as Ahani had not demonstrated that his rights to life, liberty or security of the person were threatened. Even if any of his rights were at stake, "no principle of fundamental justice entitled him to remain in Canada until his communication was considered by the Committee". The court held that, absent implementing legislation, neither the Covenant nor the Protocol had any legal effect in Canada although "Canada's international human rights commitments might still inform the content of the principles of fundamental justice under s. 1 of the Charter". Laskin JA writing for the court, held at [33]:

[33] To give effect to Ahani's position.would convert a non- binding request in a Protocol, which has never been part of Canadian law, into a binding obligation enforceable in Canada by a Canadian court, and more, into a constitutional principle of fundamental justice. Respectfully, I find that an untenable result.

At [45], the court stated that Judges were not competent to assess whether Canada was acting in bad faith by rejecting the Committee's interim measures request.

[93] Laskin, JA distinguished the JCPC's decision in Thomas v Baptiste by noting that, unlike the appellants in Thomas, Ahani was not facing a death penalty and moreover, the Thomas appellants had already obtained the benefit of orders from the Inter-American Commission on Human Rights. Even so, at [56] of the judgment, the majority found Lord Millett's reasoning to be in conflict with well- established Canadian law where "mere ratification of a treaty, without incorporating legislation, cannot make the international process part of our domestic criminal justice system".

[94] The contention that Ahani had a legitimate expectation of not being deported to Iran pending the Committee's consideration was rejected on the grounds that there was no evidential basis to support any such reasonable expectation and that Ahani was really seeking a substantive right to remain in Canada as distinct from a procedural right.

[95] Rosenberg JA dissented. He would have granted an injunction to prevent Ahani's removal from Canada. Although he found some of the JCPC's reasoning "strained", he was prepared to adopt Thomas and Lewis and to hold that due process required that individuals be given the opportunity to access the international bodies.

LEGITIMATE EXPECTATION AND THE CONDEMNED MAN

[96] The crucial question in issue in this case is whether a condemned man in Barbados derives from the ACHR, an international treaty, any benefit enforceable on the municipal plane. If indeed the man relies on a legitimate expectation that the State will not, absent undue delay, execute him while his application is pending before the international body, is the State entitled, either after or without giving notice, to act on the municipal plane in a manner inconsistent with that expectation? Can the courts restrain the decision-making body from frustrating the expectation the State has created?

[97] Before the Lewis decision, the JCPC reversed itself on more than one occasion on this very issue. In Fisher v Minister of Public Safety & Immigration (No. 2)[FN52] a Bahamian convicted of murder in March 1994 had by May, 1996 exhausted his domestic appeals. In June 1996 he petitioned the Commission. The Bahamas had not ratified the Convention but regulations under that instrument enabled complaints to be made by petition to the Commission. While his petition to the Commission was pending, the death warrant was read to the appellant. A stay was obtained and a motion filed claiming constitutional relief. Those proceedings went all the way up to the JCPC[FN53]. Before the Board, counsel for the Government gave the assurance that the Government would respect the IACHR regulations. In December, 1991 the Government wrote to the IACHR inviting it to conclude its inquiries into the case by 15th February 1998 and in January 1998 the Government sent the Commission a reminder. Counsel for the appellant was informed of these developments and was also told that the Government would not wait on the Commission beyond 15th February, 1998. On 26th March, 1998, after the petition had been with the IACHR for some 21 months, the death warrant was read for the second time to the appellant. A fresh constitutional motion was filed by the appellant in which he argued that he had a legitimate expectation that the Government would allow a reasonable time for the completion of the IACHR process and that such time had not expired. He submitted secondly, that based on his constitutional right to life, he had a right not to be executed until after the IACHR had completed its inquiries, however long that process took. The matter came up again before the JCPC.

----------------------------------------------------------------------------------------------------------------
[FN52] [2000] 1 AC 434; (1998) 52 WIR 27
[FN53] Fisher v Minister of Public Safety & Immigration (1997) 52 WIR 1; [1998] AC 673
----------------------------------------------------------------------------------------------------------------

[98] Their Lordships were divided 3 to 2. The majority held that it could not be implied, in assessing the man's right to life, that the Executive would wait a reasonable time for his international petition before the Commission to be completed, as that would mean that the Government had introduced rights into domestic law by entering into a treaty. The court relied on Brind. On the issue of legitimate expectation, counsel for the condemned man relied on Teoh. The majority's view was that even if the appellant had a legitimate expectation that he would not be executed while his petition was pending, his expectation could not survive the Government's letters of January, 1998 and in any event, by March, 1998 the petition had been with the Commission for a reasonable length of time.

[99] Lord Slynn and Lord Hope, confessing at the commencement of their judgment that "the issue which lies at the heart of this constitutional motion is not an easy one to resolve", entered a joint dissent. They agreed that there could be no claim by the appellant that in the circumstances his right to life was being infringed since the proceedings before the Commission formed no part of the domestic appellate process. However, they found that by reason of the Government's participation in the Inter-American proceedings, the appellant had derived a legitimate expectation that if the Commission were to recommend against the carrying out of the death sentence, its views would be considered before the final decision was taken as to whether or not he was to be executed. Against this background, executing the man before that recommendation was received, and after the man had spent many months in the condemned cell for no other purpose than to await the recommendation of the Commission, would constitute "inhuman treatment".

[100] In Briggs v Baptiste[FN54] Lord Millett had an opportunity to re-visit his decision in Thomas. He appeared to retreat somewhat from his former position. Thomas, he maintained:

". did not overturn the constitutional principle that international conventions do not alter domestic law except to the extent that they are incorporated into domestic law by legislation. It did not decide that the recommendations of the Commission (which are not binding even in international law) or the orders of the Inter- American Court are directly enforceable in domestic law. It mediated the proceedings before the Inter-American system through the 'due process' clause in the Constitution. It confirmed the principle that the consideration of a reprieve is not a legal process and is not subject to the constitutional requirement of due process, and that the Advisory Committee is not bound to consider, let alone adopt, the recommendations of the Commission".

----------------------------------------------------------------------------------------------------------------
[FN54] (1999) 55 WIR 460; [2000] 2 AC 40
----------------------------------------------------------------------------------------------------------------

[101] Lord Nicholls dissented. He was for insisting upon the full breadth of Thomas. He was of the view that "under the 'due process' clause ... an applicant is entitled to have the Inter-American system run its course. The appellant is not to be shut out from the possibility that . the Commission may yet make an order that the sentence of death be commuted".

[102] The issue came back before the JCPC in another appeal from the Bahamas in Higgs & Mitchell v Minister of National Security[FN55]. The JCPC now had another opportunity to re-examine Thomas v Baptiste and settle the law by arriving at consensus. Once again however the court was divided 3 to 2. The majority judgment, delivered by Lord Hoffmann, took as its premise the well known principles of law expressed in Rayner [FN56] and The Parlement Belge[FN57]. Significantly, Lord Hoffmann was prepared to hold, following Teoh, that the existence of a ratified treaty may give rise to a legitimate expectation on the part of citizens that the Government, in its acts affecting them, will observe the terms of the treaty. But he regarded the benefit which such a legitimate expectation conferred as being purely procedural. The most the citizen could expect was that the Executive would not depart from the expected course of conduct unless it gave notice that it intended to do so and afforded the person affected an opportunity to make representations. Lord Hoffmann saw Thomas v Baptiste as being indistinguishable from Fisher (No 2). Confronted with the majority's reasoning in Thomas, it was open to Lord Hoffmann expressly to disapprove Thomas but, with some reluctance, he opted not to do so on the basis that the majority in Thomas had not overruled Fisher No. 2, but distinguished it on the ground that the Trinidad & Tobago Constitution had a "due process" clause which the Bahamian Constitution lacked.

----------------------------------------------------------------------------------------------------------------
[FN55] (1999) 55 WIR 10; [2000] 2 AC 228
[FN56] [1990] 2 AC 418
[FN57] (1879) 4 PD 129
----------------------------------------------------------------------------------------------------------------

ANALYSING AND APPLYING THE CASE LAW

[103] Our view on the reasoning in Thomas and Lewis is framed by the line of cases referred to above. The frequency and force of the dissents and the high incidence of reversals by the JCPC of its own recent decisions demonstrate very forcefully the fact that this branch of the law is in an unsettled state and is still evolving. Novel and difficult questions of law are involved here. Judges all over the world are struggling to give form and coherence to ideas that only began to engage their attention in fairly recent times. In the judgments examined above there is a divergence of opinion and approach, not only as between different courts but as between judges of the same court. The range is from the very assertive and activist positions of the Indian Supreme Court to the more conservative approach of the House of Lords.

[104] The differences reflect in part a variety of responses to underlying changes that have been taking place in the manner in which treaties, and human rights treaties in particular, are drawn. These changes affect the reach of such treaties and the entities that are accorded rights under them. Traditionally, individual citizens derived no entitlement under treaties concluded between States. Such instruments imposed obligations and conferred benefits upon States. The subject-matter of the treaties was not intimately bound up with rights of human beings now regarded as fundamental and inalienable.

[105] Over the last sixty or so years, however, it has become quite common for treaties to grant to individual human beings "rights" directly enforceable by them with the result that, far from being passive subjects, individuals can now become active players on the international plane pursuant to treaties entered into by their Governments. These treaties contain provisions that are legally complete under international law. They provide the process by which individuals may enforce the rights conferred by them and no refinement is required by a State Party in order for nationals to take advantage of such provisions. Pursuant to the ACHR for example, without formal incorporation by Parliament, individual citizens may initiate proceedings and obtain relief from an international body.

[106] This development has been accompanied by the promotion of universal standards of human rights, accepted both at the domestic and on the international level. Citizens are now at liberty to press for the observance of these rights at both levels. At the domestic level, the jurisprudence of international bodies is fully considered and applied. In determining the content of a municipal right, domestic courts may consider the judgments of international bodies. Likewise, on the international plane, the judgments of domestic courts assist in informing the manner in which international law is interpreted and applied. There is therefore a distinct, irreversible tendency towards confluence of domestic and international jurisprudence.

[107] The Australian decision in Minister of State for Immigration and Ethnic Affairs v Teoh appears to have been received and approved throughout the common law world as an appropriate response to the evolving situation. The view seems to have emerged that, unless municipal law rules this out, a ratified but unincorporated treaty can give rise to a legitimate expectation of a procedural benefit. When a treaty evidences internationally accepted standards to be applied by administrative authorities in dealing with basic human rights, courts will be hesitant to regard the relevant terms of the treaty as mere "window-dressing" capable of being entirely ignored on the domestic plane.

[108] Turning our attention to the position of the respondents in this case, the punishment that faced them, the real detriment they sought to avoid, was death. True, death as a punishment for a very serious crime, but death nevertheless. Death is not to be treated as simply just another punishment. It is a punishment in a class of its own, warranting special procedures before it is carried out. The United States Supreme Court has consistently held that death is a unique punishment that differs from all other forms of criminal punishment, not in degree but in kind. See: Furman v Georgia[FN58]; Gregg v Georgia[FN59]; Woodson v North Carolina[FN60]; Lockett v Ohio[FN61].

----------------------------------------------------------------------------------------------------------------
[FN58] (1972) 408 U.S. 238
[FN59] (1976) 428 US 153
[FN60] (1976) 428 US 280
[FN61] (1978) 438 US 586
----------------------------------------------------------------------------------------------------------------

[109] Amidst scholarly discussion of legal theories, one must not lose sight of the situation of a condemned man, particularly in a state like Barbados where the mandatory death penalty has not been held to be unconstitutional as it has been in several other Caribbean states. The condemned man may have been convicted of murder, but even after his domestic appeals have been exhausted he is not altogether at the mercy of the Executive. He does still have, at a minimum, a right to the protection of the law. He understands that the Government has ratified an international treaty that entitles him, without more, liberty to petition an international tribunal. Before this international body he can perhaps advance new material, including matters that may have arisen since the conclusion of his domestic appeals, or matters which for one reason or another his counsel could not or did not raise in the domestic proceedings. He can attempt to show that his trial was not in accordance with internationally accepted standards. He can put forward reasons why, in all the circumstances, he ought not to be regarded as deserving of the penalty of death. If he does any of these things and manages to secure a favourable report from the international body, there is no guarantee that the relevant authority, when it considers the report, will be persuaded by it to recommend or grant commutation. That authority will certainly not be bound to accept any recommendation made in the report. But there is a chance, however small, that it may do so.

[110] Put in stark terms, by ratifying the treaty, the Executive has thrown to the condemned man, fighting for his life to be spared, a lifeline, albeit one that perhaps offers only a slim chance of rescue. The real issue facing judges is this: As the man is about to grasp this lifeline, is it fair for the Executive, which placed it there in the first place, to yank it away? Is it enough for the court then merely to explain to the man that unincorporated international treaties form no part of domestic law; that he has derived no "right" from the mere accession of his Government to the treaty; that the Executive does not have to await the determination of his petition by the international body before executing him, even though the report of that body, if it were available, would have to be considered by the authority responsible for exercising the prerogative of mercy and might persuade that authority to spare his life? Those are the haunting questions that cause judges much discomfort.

[111] As far as we have discerned, the case law has produced at least four different trends of thought. The first discernible approach is the one, lucidly expressed by the minority in Thomas that is grounded in the principles expressed in Brind. Under this approach, the questions posed in the preceding paragraph are all answered with a regretful "Yes!" One advantage of this approach is that its consequences are certain and predictable. Moreover, this approach has the backing of over a century of judicial authority. Its disadvantage is that the result that it produces seems oddly out of step with the modern trend of employing legal concepts for giving effect to, rather than frustrating, generally accepted notions of what is fair and humane.

[112] Secondly, there is the view which suggests that to execute a man while his petition is pending and after he has spent time on death row awaiting its outcome is to contravene guarantees against cruel or inhuman treatment. This was a view expressed by Lord Slynn and Lord Hope, the minority in Fisher No. 2, but it is a view which appears not to have received support from the authorities we have examined.

[113] Thirdly, there is the reasoning expressed by Lord Millett and adopted by the majority in Thomas, with which we have expressed our disagreement.

[114] We have spent some time exploring the fourth approach that invokes the doctrine of legitimate expectation. The obvious limitations inherent in the use of procedural legitimate expectation have been already noted. It is of little use to the condemned man who really desires a substantive benefit, namely to require the authorities to delay executing him until receipt of the report from the international body or, at least, to delay his execution so as to give the international body a reasonable time for completion of its procedures and submission of its report.

[115] As we saw earlier, the Attorney-General of Barbados represented to the Court of Appeal that her country does take seriously, and desires to abide by, its international obligation not to execute a condemned man while his petition is pending before the international body. This is also reflected in the legislature's amendment of the Barbados Constitution to add section 78 (6) which authorizes

"[t]he Governor-General, acting in accordance with the advice of the Privy Council, ... by instrument under the Public Seal [to] direct that there shall be time-limits within which persons ... may appeal to, or consult, any person or body of persons (other than Her Majesty in Council) outside Barbados in relation to the offence in question".

[116] Parliament in making that amendment impliedly recognised that it was the practice and indeed the obligation of the State to await the Commission's process, at least for some period of time, and has therefore contributed to the creation of the legitimate expectation that the right to apply to the Commission will be respected. It seems as though it is not so much that the State wishes to deny the condemned man access to the international human rights bodies or to frustrate the petition process but it wants to avoid being caught by the Pratt timelines which so far have not been relaxed despite the growing recognition that the eighteen-month period allotted to the international process has proved insufficient through no fault of the Governments involved. In Bradshaw v Attorney-General of Barbados[FN62] for example, the JCPC appreciated this dilemma but rejected the suggestion that: –

"… either the periods of time relating to applications to the human rights bodies should be excluded from the computation of delay or the period of five years should be increased to take account of delays normally involved in the disposal of such complaints."

----------------------------------------------------------------------------------------------------------------
[FN62] supra
----------------------------------------------------------------------------------------------------------------

[117] We disagree with the rejection of this suggestion. The refusal of the JCPC to sanction any relaxation of what has now become a five-year deadline clearly contributed in no small measure to the decision of the Barbados legislature to amend section 15 of the Constitution to rule out the possibility that any delay, however long, in the carrying out of a death sentence could ultimately render it unconstitutional. Something was obviously amiss when the State was being required, on the one hand to conform strictly to the Pratt five year time-limit, and on the other, to await the outcome of a condemned man's petition to the extraterritorial body, however long it took. It was Lord Goff who, in Thomas v Baptiste[FN63], noted that these bodies:

"espouse a policy of discouraging capital punishment wherever possible and, in accordance with that policy, appear to see postponement of an execution for as long as possible as an advantage since it may improve the chances of commuting the sentence or quashing the conviction: see also Johnson v Jamaica (1996) 1 B.H.R.C. 31. There is thus a direct conflict between the policy of the Commissions and the enforcement of the law of the Republic. The Commissions appear to be unable or unwilling to alter their practices to accommodate the countries' requests for more speedy procedures".

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[FN63] Supra @ [35]
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ADDRESSING THE RESPONDENTS' LEGITIMATE EXPECTATION

[118] What are the facts and circumstances that could have given rise to the legitimate expectation claimed by the respondents? Quite apart from the fact that Barbados had ratified the ACHR, positive statements were made by representatives of the Executive authority evincing an intention or desire on the part of the Executive to abide by that treaty. Such statements were, for example, made in Parliament during the debate on the Constitution Amendment Act. Further, it appears that it was the practice of the Barbados Government to give an opportunity to condemned men to have their petitions to the international human rights body processed before proceeding to execution. In all these circumstances we would hold that the respondents had a legitimate expectation that the State would not execute them without first allowing them a reasonable time within which to complete the proceedings they had initiated under the ACHR by petition to the Commission.

[119] The issue to be resolved is whether, and if so to what extent, this legitimate expectation of the respondents should produce a substantive benefit. The circumstances in which the unusual step of granting to an applicant with a legitimate expectation, a substantive as distinct from a procedural benefit is still a matter of ongoing judicial debate. It was discussed by Sedley, J. (as he then was) in Regina v Ministry of Agriculture, Fisheries and Food[FN64] where the learned judge stated the following with which we respectfully agree:

".the real question is one of fairness in public administration. It is difficult to see why it is any less unfair to frustrate a legitimate expectation that something will or will not be done by the decision maker than it is to frustrate a legitimate expectation that the applicant will be listened to before the decision maker decides whether to take a particular step. Such a doctrine does not risk fettering a public body in the discharge of public duties, because no individual can legitimately expect the discharge of public duties to stand still or be distorted because of that individual's peculiar position. [L]egitimacy is itself a relative concept, to be gauged proportionately to the legal and policy implications of the expectation. This, no doubt, is why it has proved easier to establish a legitimate expectation that an applicant will be listened to than that a particular outcome will be arrived at by the decision maker. But the same principle of fairness in my judgment governs both situations".[FN65]

----------------------------------------------------------------------------------------------------------------
[FN64] But see ex parte Hargreaves [1997] 1 WLR 906 where this approach of Sedley, J. was described as "heresy " by the English Court of Appeal.
[FN65] Regina v Ministry of Agriculture, Fisheries and Food ex parte Hamble Fisheries (Offshore) [1995] 2 AER 714 @544-545
----------------------------------------------------------------------------------------------------------------

[120] R v North & East Devon Health Authority, ex parte Coughlan[FN66] is a case in which a claimant was held to be entitled to a substantive benefit. According to Lord Woolf M.R., once the court finds that there was a legitimate expectation of a substantive benefit, "the court has, when necessary, to determine whether there is a sufficient overriding interest to justify a departure from what has been previously promised". The court's task, he said, is not to impede executive activity but to reconcile its continuing need to initiate or respond to change with the legitimate expectations of citizens who have relied, and have been justified in relying, on a current policy.

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[FN66] (2001) QB 213
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[121] The legitimate expectation in Coughlan was rooted in an express promise, repeatedly made to a select, identifiable group of persons, that had the character of a contract. The learned Master of the Rolls equated unwarranted frustration of the legitimate expectation with an abuse of power and the case was treated almost like an estoppel in private law, justifying a standard of review by the courts that was higher than would normally be the case.

[122] Coughlan was one of the cases discussed in the judgment of Sir David Simmons in Pearson Leacock v The Attorney General[FN67]. In that case the learned Chief Justice stopped just short of providing the applicant with a substantive benefit on the basis of a legitimate expectation and ordering the Barbados Commissioner of Police to grant to a police officer, who had attained his LLB degree with honours, while on study leave, further study leave to obtain his professional qualification at the Hugh Wooding Law School. Sir David thought that it was not open to him to declare that the applicant was entitled to study leave as "that would be an intrusion into the merits of the case". The merits, he said "will often involve policy considerations. Such considerations are not for the courts". Sir David nonetheless quashed the decision of the Police Commissioner to deny the grant of study leave and declared that decision to be an unreasonable and improper exercise of discretion.

----------------------------------------------------------------------------------------------------------------
[FN67] Barbados High Court Civil Division, No. 1712 of 2005, unreported
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[123] The English Court of Appeal in Secretary of State for the Home Dept. v The Queen (on the application of Bakhtear Rashid)[FN68], a matter involving a Kurdish asylum seeker, affirmed the view expressed in R v Inland Revenue Commissioners, ex parte Unilever plc[FN69] and other cases[FN70] that where the concept of legitimate expectation is invoked, implementation by a public authority of a decision to frustrate the expectation would be restrained by the court if the decision is so unfair that it amounts to an abuse (some judges say "misuse") of power in the absence of some overriding public interest. In Rashid, the court granted a declaration "the effect of which [was] expected to be a grant by the Secretary of State of permission to remain indefinitely in the United Kingdom".

----------------------------------------------------------------------------------------------------------------
[FN68] [2005] EWCA Civ 744
[FN69] [1996] STC 681
[FN70] See: ex parte Begbie [2000] 1 WLR 1115; ex parte Unilever [1996] STC 681; SSHD v Zeqiri [2002] Imm AR 296; ex parte Ahmed & Patel [1998] INLR 570
----------------------------------------------------------------------------------------------------------------

[124] In matters such as these, courts must carry out a balancing exercise. The court must weigh the competing interests of the individual, who has placed legitimate trust in the State consistently to adhere to its declared policy, and that of the public authority, which seeks to pursue its policy objectives through some new measure. The court must make an assessment of how to strike the balance or be prepared to review the fairness of any such assessment if it had been made previously by the public authority. As indicated by Dyson, LJ in Rashid, "...[W]here, for example, there are no wide-ranging policy issues, the court may be able to apply a more intrusive form of review to the decision. The more the decision which is challenged lies in the field of pure policy, particularly in relation to issues which the court is ill-equipped to judge, the less likely it is that true abuse of power will be found".

[125] In the case before us, there is on the one hand the legitimate expectation of the condemned men that they will be permitted a reasonable time to pursue their petitions with the Commission with the consequence that any report resulting from the Inter-American process will be available for consideration by the Barbados Privy Council. On the other hand, there is whatever the State may advance as an overriding interest in refusing to await completion of the international process before carrying out the death sentence. It appears from what was represented to the Court of Appeal in this case that, apart from the constraints of the Pratt time-limit, the State of Barbados claims no overriding interest in putting the condemned men to death without allowing their legitimate expectation to be fulfilled. The BPC remains under no legal obligation to accept the report or recommendations of the Commission or UNCHR although of course it must consider them. In our view, to deny the substantive benefit promised by the creation of the legitimate expectation here would not be proportionate having regard to the distress and possible detriment that will be unfairly occasioned to men who hope to be allowed a reasonable time to pursue their petitions and receive a favourable report from the international body. The substantive benefit the condemned men legitimately expect is actually as to the procedure that should be followed before their sentences are executed. It does not extend to requiring the BPC to abide by the recommendations in the report.

[126] By the amendment of section 15 of the Constitution, the State of Barbados no longer has the constraint of the Pratt five-year time-limit. Even without Pratt however, we expect the relevant authorities to strive for completion within a reasonable time of all the criminal justice processes including those that span the period between conviction and the carrying out of a death sentence. Where Pratt is applicable, as it was in Barbados for these respondents, we would have been inclined to the view, if the issue of the five-year time-limit was still a live one before us, that where the time taken in processing a condemned man's petition before an international body exceeded eighteen months, the excess should be disregarded in the computation of time for the purpose of applying the decision in Pratt. In any event, protracted delay on the part of the international body in disposing of the proceedings initiated before it by a condemned person, could justify the State, notwithstanding the existence of the condemned man's legitimate expectation, proceeding to carry out an execution before completion of the international process. This may be regarded either as a situation which is catered for by the terms of the legitimate expectation itself or as one which creates an overriding public interest in support of which the State may justifiably modify its policy of compliance with the treaty.

[127] A fundamental rationale of the dualist approach to international law is that, should its violation be encouraged, there would be a risk of abuse by the Executive to the detriment of the citizenry[FN71]. Ensuring that the Executive does not, by its treaty- making power, usurp the legislative role of Parliament is a measure designed principally to protect the rights of the individual. The fulfillment of the legitimate expectation of the condemned men here results in the enhancement of the protection afforded those rights and minimises the risk that the Executive may have cause to regret the carrying out of a death sentence.

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[FN71] See: In re McKerr [2004] UKHL 12 per Lord Steyn at [50]
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[128] For all the foregoing reasons we are of the view that the BPC ought not to have decided to advise the Governor-General to proceed with the executions before allowing the respondents a reasonable time to complete the processing of their petitions. In giving this advice without waiting a reasonable time for the Commission's report, the BPC defeated the legitimate expectation of the respondents and deprived itself of any opportunity of considering the Commission's report or if the matter was referred to the Inter-American Court, that Court's judgment. The reading of the death warrants on the 15th September 2004 constituted an infringement of the respondents' right to the protection of the law.

[129] Save that we have qualified somewhat the scope of the relevant legitimate expectation and that we are prepared to ground our opinion on a breach of the right to the protection of the law as distinct from a breach of the right to life, our opinion is not at variance with views expressed by Lord Slynn and Lord Hope, the minority in the Bahamian case of Fisher (No. 2)[FN72], who were disposed to find that the acts of the Government of the Bahamas in that case had

"...provided the appellant with a legitimate expectation that, if the IACHR were to recommend against the carrying out of the death sentence, its views would be considered before the final decision is taken as to whether or not he is to be executed. But any such recommendation would plainly be pointless if he were to be executed before the recommendation was made and communicated to the Government. For the Government to carry out the death sentence while still awaiting a recommendation which might, when considered, lead to its commutation to a sentence of life imprisonment would seem in itself to be an obvious violation of the appellant's right to life."

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[FN72] [2000] 1 AC 434 @ 452; (1998) 53 WIR 27 @ 42
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[130] In our view the respondents' legitimate expectation can only be defeated by some overriding interest of the State. If, pursuant to section 78(6) of the Constitution, the Governor-General acting in accordance with the advice of the Privy Council, imposes reasonable time-limits within which a condemned man may "appeal to, or consult" extra-territorial bodies, then it could not be said that such time-limits did not evince an intention on the part of the State to address its treaty obligations in good faith. The State cannot reasonably be expected to delay indefinitely the carrying out of a sentence, even a sentence of death, lawfully passed by its domestic courts pending the completion of the hearing of a petition by an international body even though the State has by treaty conferred on the person sentenced the right to pursue that petition.

[131] This decision should not be seen as opening up avenues for the wholesale domestic enforcement of unincorporated treaties. States, and small States in particular, enter into treaties for a host of different reasons and a Caribbean Court is acutely sensitive to such realities. Our application of the doctrine of legitimate expectation in this case is rooted in a number of considerations which are peculiar to the situation in which it has been invoked. These include: the desirability of giving the condemned man every opportunity to secure the commutation of his sentence, the direct access which the treaty affords him to the international law process and the disproportion between giving effect to the State's interest in avoiding delay even for a limited period in the carrying out of a death sentence and the finality of an execution. Our decision may be viewed as merely a further step in the development of the capital punishment jurisprudence which has been rapidly growing since the Pratt decision.

[132] Ultimately, with respect to the second of the broad issues before us, we have arrived at a result which is not dissimilar to that reached by their Lordships in Lewis (save that the obligation of the State to await the outcome of the international process is not in our judgment open-ended) but we have followed a somewhat different route. On this second issue as well therefore, we do not consider it necessary to comment upon the lucid submissions of Mr.. Mendes (briefly referred to in paragraph 40 of this judgment) as to why we should not depart from Lewis.

ISSUE THREE
WHETHER IT WAS APPROPRIATE FOR THE COURT OF APPEAL TO COMMUTE THE DEATH SENTENCES

[133] Some of the matters that fall under this head were not fully argued before us. Others have become otiose as a consequence of our other findings. For the avoidance of doubt, we would affirm the decision of the Court of Appeal to commute the sentence of death imposed on the respondents. In our view, the Court of Appeal was right to do so. The exercise of the prerogative of mercy is indeed reviewable; the respondents were entitled by virtue of the legitimate expectation created by their Government's ratification of the ACHR and its subsequent conduct and statements, to a reasonable time to file and complete proceedings in the Inter-American system; and, to have permitted the respondents to make use of that entitlement would inevitably have taken the case over the five- year limit set in Pratt, as applied in Lewis, both of which were at the material time the law of Barbados.

[134] There is another reason, not argued before us, why the death sentences on the respondents would have had to be commuted even if we had held, reversing Thomas v. Baptiste and Lewis, that the State was entitled to proceed to execute the respondents without allowing them reasonable time to complete the proceedings they had started before the Commission. In Matthew v. the State[FN73] the JCPC by a 5 to 4 majority reversed its previous decision in Roodal v. the State[FN74] and held that the mandatory death penalty was not unconstitutional in Trinidad and Tobago. Despite doing so, however, the majority also held that all those who were under sentence of death at the time when Matthew was decided (including Matthew himself) should have their sentences commuted. The reason given was that as a result of the decision in Roodal these persons had been given the expectation that their sentences would be reviewed by a judge for the purpose of deciding whether a sentence of imprisonment should be substituted for the death sentence passed on them. To disappoint them in this expectation was considered so unfair as to render their execution cruel. In relation to the appellant Matthew himself, Lord Hoffmann, writing for the majority, put the matter in the following way:

"On the other hand, simply to leave the sentence to be carried out, subject to the decision of the President, appears to their Lordships unfair to Mr.. Matthew. He has been given the expectation of a review of a sentence, additional to the possibility of Presidential commutation, of which he is now deprived. Their Lordships think that it would be a cruel punishment for him to be executed when that possibility has been officially communicated to him and then been taken away".

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[FN73] [2005] 1 AC 433 @ 453; (2004) 64 WIR 412
[FN74] [2005] 1 AC 328; (2003) 64 WIR 270
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[135] In this case, the expectation of the respondents with respect to their petitions to the Commission would have been shaped firstly by Pratt itself in which the JCPC allowed a period of eighteen months for proceedings before the international bodies. Thomas v. Baptiste and Lewis would have put firmly in place the expectation that the respondents would be allowed at least a reasonable time to complete proceedings before the Commission. If subsequently we were to have held that Thomas and Lewis were wrongly decided and that the State was under no obligation to allow any time for the completion of proceedings before international bodies, then it would have been at least as unfair and as cruel to execute the respondents as it would have been to execute Mr.. Matthew and those who were similarly circumstanced. This was therefore another reason, though not one that was adverted to at the time, why Mr.. Forde's decision not to challenge the commutation of the death sentence in this case, was rightly made.

[136] It is interesting to note the special features of the expectation relied on by the JCPC in Matthew. Firstly, it is the expectation of a person under sentence of death. Secondly, it is an expectation created not by the Executive, but by a court decision which is subsequently reversed. Thirdly, the expectation is that the condemned man will be given a chance (however slim) of avoiding being put to death. To deny the condemned man that chance was deemed so unfair as to render the carrying out of the death sentence cruel and, therefore, unconstitutional. This decision of their Lordships has nothing to do with the doctrine of legitimate expectation which we have invoked as the basis of the State's obligation to afford the respondents a reasonable opportunity to have their case aired in the Inter- American system. It would seem, however, to justify giving special weight and effect to an expectation that has the same features as those mentioned above save that it is created by the Executive of the condemned man's country, rather than by its courts.

[137] As to our view on the successive readings of the death warrants and the issue of funding for the condemned men, we would prefer not at this time to pronounce on those matters as they were given no attention by counsel and they really are peripheral to a determination of the main issues in the appeal.

DISPOSING OF THE APPEAL

[138] It follows that, while in principle we affirm the decision in Pratt, as previously intimated, we would have been inclined to take the view that where the relevant international human rights process initiated by a condemned man exceeds eighteen months, the time taken in excess of that period has to be disregarded in computing time for the purpose of determining compliance with Pratt or, alternatively, such excess must be added to the five-year limit prescribed by Pratt. This is all on the premise that the additional time taken is not attributable to delays in the process for which the Government concerned is responsible.

[139] In view of the terms of section 78(6) of the Constitution, the Governor-General of Barbados, acting in accordance with the advice of the Barbados Privy Council, may wish to stipulate reasonable time-limits in accordance with that sub-section. It is not for us in this judgment to indicate what is or is not a reasonable time- limit. We have neither been addressed on whether this is a matter within our purview nor have we been provided with sufficient evidence upon which to form a view on the substantive issue. Much may well turn on the experience the Government has had with the international bodies. We would only note that the cases we have examined appears to suggest that eighteen months is in practice an insufficient period for the processing of a condemned man's petition before the Commission. Moreover, one needs to consider that in the case of the Commission, a petition may ultimately be referred to the Inter-American Court. In establishing reasonable time-limits therefore, we expect that the Governor-General would balance these matters with the circumstance that it is still eminently desirable that a prisoner on death row who has exhausted all appeals open to him domestically should have his sentence commuted or carried out with reasonable dispatch, notwithstanding the fact that by virtue of the amendment to section 15 of the Constitution no delay however long can have the effect of rendering the carrying out of a death sentence unconstitutional.

[140] We have considered carefully the steps that the BPC should take to assure procedural fairness to a person who has been sentenced to death. The Constitution of Barbados has mandated that the BPC may regulate its own procedure. We feel though that we should express some of our thoughts on this matter especially as the Court of Appeal at pages 43-44 of its judgment spent some time on the procedure that it considered should ensue after conviction. Moreover, the role of the BPC in a mandatory death penalty regime is critical to the individualising of the sentence, an essential feature of any civilised justice system. We have seen from time to time in relation to a refusal to exercise the prerogative of mercy in favour of a condemned man, the expression that one is "allowing the law to take its course". Somehow, mercy is in some quarters perceived as a deviation from the normal course of the law. This is a most unfortunate way of viewing the prerogative of mercy, especially in a mandatory death penalty regime. Mercy and justice are not mutually exclusive concepts and the "course" of the law includes the principled intervention of the BPC. We would respectfully adopt the view of Justice Holmes of the United States Supreme Court who, in reference to the power of the US President to grant pardons, noted that:

"A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed". See: Biddle v Perovich[FN75]

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[FN75] 274 US 480 (1927), 486
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[141] If we understood Mr.. Shepherd QC for the condemned men, correctly, he contended that the BPC should meet as soon as possible after the dismissal of an appeal to the Court of Appeal by a person convicted of murder. The sole purpose of this meeting, he suggested, should be to determine whether the members of the BPC were disposed to commute the sentence. In the event that commutation was agreed, then that advice should forthwith be tendered to the Governor-General. Failing such agreement, the BPC should postpone further deliberations until the condemned man had exhausted his domestic appeals or, until all the statutory time-limits within which such appeals should have been launched, had expired. The BPC should then meet a second time for the same purpose as that for which their first meeting was held. If at that second meeting it is agreed to commute, then that advice should forthwith be tendered to the Governor-General. Otherwise, the BPC should postpone further deliberations until the processing of any application made to an international body is completed or the opportunity of making such application no longer exists. When the report of the international body has been received, the BPC should again meet. Before it does so, it should make available to the condemned man the material upon which it proposes to make its decision, give him reasonable notice of the date of the meeting and invite him, through his attorneys, to make written representations.

[142] There are some advantages in following this procedure. If at any stage, commutation is clearly warranted, then a decision to grant it can be made early and the condemned man informed as soon as practicable. That course of action might save the man and the State the expense and trouble of further unnecessary legal process. The JCPC in Pratt[FN76] did suggest that the Jamaica Privy Council should "consider the case shortly after the Court of Appeal hearing and if an execution date is set and there is to be an application to the [JCPC] it must be made as soon as possible."

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[FN76] See [1994] 2 A.C. 1 @ 34G
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[143] Notwithstanding these apparent advantages, we do not support this approach. It will often be quite unnecessary and unproductive for the BPC to sit on three separate occasions on the same case. Moreover, there is always a risk that if members of the BPC form an initial view against commutation, it may be more difficult to persuade them subsequently to change that stance when ultimately an opportunity is provided to the condemned man to make written representations. We would recommend that the BPC should meet only once and that they should do so at the very end of all the domestic and international processes. At that stage they should make available to the condemned man all the material upon which they propose to make their decision, give him reasonable notice of the date of the meeting and invite him to submit written representations. This does not of course preclude the Governor-General in his or her discretion from convening at any time a meeting of the BPC with a view to achieving a consensus on commutation if the Governor-General considers there is a strong case for a commutation. If there is no decision in favour of commutation, then further deliberation would have to be adjourned.

[144] This appeal is dismissed with costs certified fit for two attorneys-at-law for each respondent.

/s/M A de la Bastide
Michael A de la Bastide

/s/A Saunders
Adrian D Saunders

JUDGMENT OF THE HONOURABLE MR. JUSTICE NELSON

[1] I have had the advantage of reading the joint judgment of the learned President and Saunders J in draft and I agree with it. However, I would like to make some observations of my own to supplement what fell from those learned judges.

THE FACTS

[2] These appeals arise out of the death of Marquelle Hippolyte on April 15, 1999 five days after he was attacked and beaten with pieces of wood by four men. The respondents, Joseph and Boyce, were jointly charged with Benn and Murray with the murder of Hippolyte. At the outset of the trial the prosecution offered to accept guilty pleas to the lesser charge of manslaughter. Benn and Murray pleaded guilty to manslaughter. Joseph and Boyce did not. Benn and Murray were sentenced to 12 years' imprisonment.

[3] It is apparent that the case against Joseph and Boyce was based on a common design with Benn and Murray to cause grievous bodily harm to the deceased. Joseph and Boyce were convicted on February 2, 2001 and sentenced to death. Joseph and Boyce appealed their conviction and sentence, but their appeals were dismissed by the Court of Appeal on March 27, 2002.

[4] On April 5, 2002 Joseph served the Barbados Privy Council ("BPC") with notice of his petition to the Privy Council for special leave to appeal in forma pauperis.

[5] After the Court of Appeal dismissed the respondents' appeals the BPC met to consider clemency for the respondents after advising them of the material it had before it and inviting written representations. The respondents made no written representations but served notice before the meeting of their application to the Judicial Committee of the Privy Council ("the Privy Council") for special leave to appeal.

[6] The meeting proceeded nonetheless and death warrants were read to the respondents although the special leave applications were pending.

[7] The respondents, Joseph and Boyce, immediately filed constitutional motions ("the first motions") seeking a stay of execution pending the hearing and determination of their appeals to the Privy Council or until further order. A stay of execution for 28 days was granted on June 28, 2002. The stay was never extended, and the first motions were not then proceeded with. However, the appeal, which ultimately became one of a trilogy of cases heard together by the Privy Council on the constitutionality of the mandatory nature of the death penalty, was dismissed on July 7, 2004: see Boyce v The Queen[FN1]. By a 5-4 majority the Privy Council held that the mandatory death penalty was not unlawful or unconstitutional.

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[FN1] Boyce v The Queen [2005] 1 AC 400; (2004) 64 WIR 37
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[8] On July 9, 2004 the respondents' solicitors in London gave notice of their intention to make a complaint to the Inter-American Commission on Human Rights ("IACHR") and requested a stay of execution. The BPC was formally told on September 4, 2004 that the IACHR applications were filed. Nevertheless the BPC met on September 13, 2004 and considered the order of the Privy Council of July 7, 2004 dismissing the respondents' appeals. The BPC advised against commutation, and death warrants were read to the respondents a second time.

[9] On September 16, 2004, the respondents filed constitutional motions ("the second motions") seeking inter alia a stay of execution pending the determination of their applications before the IACHR. The orders for a stay of execution were eventually granted.

[10] The first and second motions were consolidated and heard by Greenidge J. The learned judge dismissed the motions on December 22, 2004 granting a stay of execution for 6 weeks pending an appeal. An appeal was filed on January 18, 2005. The Court of Appeal extended the stay until the hearing and determination of the appeals. By order dated May 31, 2005 the Court of Appeal (Colin Williams, Waterman and Peter Williams JJ A) allowed the appeals and commuted the death sentences of Joseph and Boyce to life imprisonment. Pursuant to final leave granted by the Court of Appeal of Barbados on November 25, 2005 the Crown now appeals the order of the Court of Appeal.

[11] Meanwhile on September 17, 2004 the IACHR had admitted the petitions of Joseph and Boyce and invited the Barbados Government to respond. The IACHR also applied to the Inter-American Court on Human Rights ("the Inter-American Court") for provisional measures aimed at preserving the lives of Joseph and Boyce. On September 17, 2004 the President of the Inter-American Court made that order and the full court of the Inter-American Court confirmed it on November 25, 2004. These orders came before the respondents had exhausted the issues raised by their constitutional motions of September 16, 2004, and no further reference is made to them in this judgment.

[12] I need not rehearse the findings of the Court of Appeal at this stage other than to say that it held that the decisions of the BPC were subject to judicial review and that the ratified but unincorporated treaties i.e the American Convention on Human Rights and the International Covenant on Civil and Political Rights 1966 (ICCPR) gave the respondents the right to have their petitions to these human rights bodies processed and the reports of these bodies placed before the BPC for consideration before it made a decision on clemency. The Court of Appeal therefore considered that the BPC's decisions in 2002 and 2004 not to recommend clemency constituted a breach of the respondents' right to the protection of the law (section 11(c) of the Constitution). The Court of Appeal commuted the death sentences to life imprisonment for the following reasons:

"Judicial deference to the BPC and the limited time before the expiry of the five-year period therefore dictate that we should not order a stay of execution pending the report from the IACHR. In view of the time frame and the circumstances of the case, the proper order is to commute the sentences''

[13] Ultimately the Court of Appeal felt that the real ground for allowing the appeal was that the delay between conviction and execution was long enough to amount to "inhuman or degrading punishment" within the meaning of section 15(1) of the Constitution as explained in the Pratt and Morgan[FN2] guidelines.

[14] By the time this appeal was heard the fifth anniversary of the conviction of Joseph and Boyce had passed, as the Court of Appeal presciently predicted. Leading counsel for the Crown, Mr. Forde QC, therefore conceded that if his appeal were successful he could not properly ask for the reinstatement of the death sentences in the light of Pratt and Morgan v Attorney-General for Jamaica[FN2]. No issue was taken for this purpose with the aggregation of the time taken to pursue domestic appeals with the time spent before international human rights tribunals.

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[FN2] Pratt and Morgan v Attorney-General for Jamaica [1994] 2 AC 1 (PC); (1993) 43 WIR 340
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AMBIVALENCE OF THE STATUTORY AND CONSTITUTIONAL PROVISIONS

[15] In cases such as the present involving the mandatory death penalty the courts are faced with a paradox. In the first place, the trial judge must, if the jury finds the accused guilty, sentence him to death: see section 2 of the Offences Against the Person Act 1994 (No 18). Secondly, section 78(3) of the Constitution commands the Governor General (upon the sentence of a person to death) to convene a meeting of the BPC to advise him or her on the exercise of the powers of clemency particularized in section 78(1) of the Constitution. Although Lord Bingham of Cornhill reminds us that the grant of mercy is an executive responsibility (Reyes v The Queen[FN3]) the effect of the exercise of a power of reprieve may be to change a sentence of death into a sentence of a term of years. Thirdly, as Lord Goff of Chieveley in his dissenting speech in Thomas v Baptiste[FN4] said: "The commissions espouse a policy of discouraging capital punishment wherever possible..." Barbados has not incorporated such treaties into domestic law, so that abolition of capital punishment is not official domestic policy. Nonetheless, on the international plane Barbados has accorded its citizens the right of access to international human rights commissions whose declared commitment is toward the abolition of capital punishment.

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[FN3] Reyes v The Queen [2002] 2 AC 235, 257; (2002) 60 WIR 42, 68
[FN4] Thomas v Baptiste [2002] 2 AC 1, 35e; (1998) 54 WIR 387, 435
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[16] Thus, the mandatory death penalty is prescribed, but the Constitution prevents the sentence from being carried out without a clemency hearing by the BPC, which, according to Lewis v Attorney-General[FN5], must await the report of international human rights tribunals which favour abolition before it can decide on clemency. A further element in the paradox is that pursuant to Pratt and Morgan (supra) after an approximate period of five years after conviction a sentence which was mandatory ceases to be so.

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[FN5] Lewis v Attorney-General [2001] 2 AC 50; (2000) 57 WIR 275
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[17] Barbados, in relation to persons sentenced to death after September 5, 2002, has passed the Constitution (Amendment) Act 2002 (No 14) in an attempt to resolve some elements of the paradox. However, it is not clear that these amendments have resolved all the difficulties, an issue which need not detain us in the instant appeal.

[18] It is important to remember that the process under scrutiny is one by the executive i.e the carrying out of a sentence of death with proper regard for the fundamental rights and freedoms of a condemned man.

POWER TO REVIEW DECISIONS OF THE BPC

[19] In Riley v Attorney-General of Jamaica[FN6] Lords Scarman and Brightman in a dissenting speech later vindicated in Pratt and Morgan (supra) said this of the constitutional provisions which relate to the prerogative of mercy:

"Though they derive as a matter of history from the Crown's prerogative of mercy, they are now statutory in character. They are part of the written Constitution... It is to be noted that this is an executive power subject to the sort of safeguard, i.e the confidential advice of a distinguished independent body, which is a familiar feature in administrative and public law."

----------------------------------------------------------------------------------------------------------------
[FN6] Riley v Attorney-General of Jamaica [1983] AC 719; (1982) 35 WIR 279
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[20] Nor does it matter that the source of the prerogative is the common law, statute or the Constitution. In CCSU v Minister for the Civil Service[FN7] Lord Scarman for the majority said:

"The law relating to judicial review has now reached the stage where it can be said with confidence that, if the subject matter in respect of which prerogative power is exercised is justiciable... the exercise of the power is subject to review in accordance with the principles developed in respect of the exercise of statutory power."

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[FN7] CCSU v Minister for the Civil Service [1985] AC 374, 407
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[21] It is therefore clear that the procedures of the BPC are subject to judicial review, as in fact the majority held in Lewis v Attorney-General of Jamaica (supra) where the Privy Council refused to follow its own decision in de Freitas v Benny[FN8] and Reckley v Minister of Public Safety and Immigration (No 2)[FN9]. Decisions as to the grant or refusal of mercy should be arrived at by procedures which are fair and proper.

----------------------------------------------------------------------------------------------------------------
[FN8] de Freitas v Benny [1978] AC 239; (1975) 27 WIR 318
[FN9] Reckley v Minister of Public Safety and Immigration (No. 2) [1996] AC 527; 1996) 47 WIR 9
----------------------------------------------------------------------------------------------------------------

DOES THE OUSTER CLAUSE BAR REVIEW OF BPC DECISIONS?

[22] Counsel for the Crown then submitted that the decisions of the BPC were immune from challenge because of the ouster clause in section 77(4) of the Constitution. Section 77(4) provides:

"The question whether the Privy Council has validly performed any function vested in it by this Constitution shall not be inquired into in any court."

[23] I endorse what fell from the President and Saunders J in this regard, particularly their reliance on Thomas v Attorney-General of Trinidad and Tobago[FN10]. However, it would seem that since all decisions of bodies like the BPC are reviewable for errors of law, such as alleged breaches of the Constitution, and for procedural fairness, ouster clauses such as section 77(4) will rarely be effective.

----------------------------------------------------------------------------------------------------------------
[FN10] Thomas v Attorney-General of Trinidad and Tobago (1981) 32 WIR 375, 393-4
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[24] Whether decisions of the BPC are subject to substantive review on the grounds laid down by Lord Diplock in CCSU v Minister for the Civil Service (supra) at pp 410-11 i.e. illegality, irrationality, procedural impropriety or proportionality has not been argued in the present appeal. In my judgment any unlawfulness found in consequence of a review on such grounds would also constitute a breach of the constitutional rights of the condemned man and trigger the wide remedies under section 24 of the Constitution. Indeed, on the facts of the instant case there may be a serious question as to the proportionality of the death sentence imposed on the respondents as against the sentence of 12 years meted out to their fellow perpetrators. The Court of Appeal in my view properly took this factor into consideration in deciding whether to commute the death sentences imposed on the respondents.

THE EFFECT OF PETITIONS TO INTERNATIONAL HUMAN RIGHTS BODIES

[25] A major issue between the parties was whether the respondents had the right to have the report of the IACHR on their case placed before the BPC for consideration and whether the BPC had a concomitant duty to await such report before taking the decisions they took in 2002 and 2004 not to recommend commutation of their death sentences. The Court of Appeal held that it was bound by Lewis v Attorney-General of Jamaica (supra) and adopted the conclusion of Lord Slynn of Hadfield in Lewis (supra) at p 85 E:

"Execution consequent upon the Jamaican Privy Council's decision without consideration of the Inter-American Commission report would be unlawful."

In Lewis (supra) the Privy Council held that as a general rule ratified but unincorporated treaties afforded no rights to individuals enforceable in domestic courts. However, when a state acceded to such treaties and allowed individuals to petition international human rights bodies the protection of the law afforded by section 13 of the Constitution entitled the petitioner not only to complete that procedure and to obtain reports of such bodies for the consideration of the Jamaica Privy Council before determination of an application for mercy but also to have a stay of execution till such reports were received and considered.

[26] The question whether unincorporated human rights treaties signed and ratified by the executive accord rights to condemned men in death penalty cases has received inconsistent answers in five Caribbean cases decided by the Privy Council and discussed by the President and Saunders J.

[27] The dilemma which the Privy Council faced in those cases was how to maintain a rigid dualist approach to the relationship between international law and municipal law and yet introduce international human rights norms into municipal law where treaties embodying those norms were ratified but not incorporated.

[28] That dilemma might be resolved by considering whether there are any exceptions to the rule that international law and municipal law travel along distinct, non-tangential paths. In my judgment there is such an exception when there is a legitimate expectation on the domestic plane that there would be compliance with international obligations not incorporated into the municipal law. It is well settled that a decision- maker may create a legitimate expectation in a person by reason of the decision maker's established past practice: see O'Reilly vMackman[FN11] per Lord Diplock. Other methods of creating a legitimate expectation may be a specific representation to a person as to how a power will be exercised or an express or implied policy statement attributable to the decision-maker.

----------------------------------------------------------------------------------------------------------------
[FN11] O'Reilly v Mackman [1983] 2 AC 237, 275D
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[29] The legitimate expectation in the instant case is based on the established practice in Barbados after a condemned man has exhausted his local appeals. The judgment of the Court of Appeal refers to this "established practice" at paragraph 17 and sets out the steps to be followed in bringing a complaint before the IACHR or the Inter- American Court.

[30] Alternatively, the conduct of the Barbados government in complying with its obligations in respect of this petition to the IACHR amounts in my judgment to a representation by conduct that the benefit of the Inter-American system of review would be accorded to the respondents.

[31] In the result I would arrive at the same conclusion as the Privy Council in Lewis (supra) but by the slightly different route of anchoring the need to await the termination of the Inter-American review process in a legitimate expectation derived from established practice in Barbados or the representations of the Barbados authorities by conduct in this case.

[32] I agree with the analysis of the President and Saunders J of the legal consequences of such a legitimate expectation. If it were necessary to decide the point in this case I would have held that once an applicant to the BPC has been denied fairness or natural justice by the BPC it may not be safe in a matter of life and death to remit the same case to the same body since there would always be a lurking doubt and sense of injustice if the BPC ignored a report favourable to the respondents and persisted in its refusal of clemency.

COMMUTATION?

[33] Counsel for the Crown, Mr.. Forde QC, also raised the question whether the Court of Appeal could properly commute the death sentence. The point now seems academic in the light of the concession made by him that the decision in Pratt and Morgan v Attorney-General (supra) applied on the facts of the instant appeal, more than five years having elapsed since conviction. In any event the Court of Appeal properly regarded itself as bound by Bradshaw v Attorney-General[FN12] in which the Privy Council commuted a sentence of death where there was a delay in excess of eight years after conviction on the basis of the principles in Pratt and Morgan v Attorney- General (supra), and we have not been invited to depart from Bradshaw v Attorney- General (supra).

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[FN12] Bradshaw v Attorney-General [1995] 1 WLR 936 (PC); (1995)46 WIR 62
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[34] In my judgment a breach of the right to the protection of the law occurred when the BPC made its decisions not to recommend clemency before the respondents could obtain any material for its consideration from the international bodies they had petitioned, thus impairing the fairness of the hearing. This breach brought into play the full range of remedies under the redress clause. Accordingly the Court of Appeal could properly have made its order pursuant to section 24 of the Constitution on the basis of a breach of the Constitution other than section 15 if it had been minded to do so.

[35] In any event the powers of the courts under the supreme law clause would appear to be wide enough to provide a declaration and consequential relief in respect of any law or executive action in breach of the Constitution. However, in the absence of full argument I express no concluded view on this point.

CONCLUSION

[36] In the final analysis for the reasons given by the President and Saunders J I too would dismiss this appeal with costs to each of the respondents certified fit for two attorneys- at-law.

/s/ R. F. Nelson
Rolston F Nelson

JUDGMENT OF THE HONOURABLE MR. JUSTICE POLLARD

[1] The background to this appeal from the Barbados Court of Appeal has been fully set out in the judgments of my learned colleagues. However, I approach some issues in this appeal with perspectives different from my learned colleagues even though our conclusions are essentially similar. The first issue is as follows:

Whether the exercise by the Governor General of the powers under section 78 of the Constitution of Barbados is justiciable and, if so, to what extent.

JUSTICIABILITY OF THE PREROGATIVE OF MERCY

[2] As concerns this issue the weight of authority supports a finding for the justiciability of the exercise of the prerogative of mercy. In this context, a clear distinction was made by Lord Slynn who delivered the majority advice of the Judicial Committee of the Privy Council ("the Board") in Neville Lewis v Attorney General of Jamaica[FN1] between the process informing the exercise of discretionary powers and the merits of the exercise of such powers by a competent authority. In recent decades the courts have determined that curial intervention in the exercise of executive discretion is less a function of its source, be it prerogative or statutory, than the subject matter under consideration. In Council of Civil Service Unions and Ors. v Minister for the Civil Service[FN2] Lord Scarman captured the prevailing judicial view: "Today, therefore, the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter."

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[FN1] (2000) 57 WIR 275; [2001] 2 AC 50 at p 75
[FN2] [1985] AC 374 p 407
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[3] In examining the justiciability of the exercise of the prerogative of mercy I propose to adopt as my point of departure the elucidatory dictum of Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service[FN3] as follows:

"To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either (a) by altering rights or obligations of that person which are enforceable by or against him in private law or (b) by depriving him of some benefit or advantage which either (i) he has in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been given an opportunity to comment or (ii) he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending they should not be withdrawn."

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[FN3] Ibid at p 408
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[4] Learned counsel for the appellants, in vigorously submitting that the exercise of the prerogative of mercy was beyond judicial review, relied heavily on the decision of the Board in de Freitas v Benny[FN4] which was followed in Reckley v Minister of Public Safety and Immigration[FN5]. However, the Board in Neville Lewis[FN6] distinguished those two cases by reference to the personal character of the discretion to be exercised by the competent Minister in advising the mercy committee as contrasted with the decision-making power of the Jamaica Privy Council on whose recommendation the Governor General was required to act. Consequently, the Board determined that in exercising the prerogative of mercy the requirement to act fairly fully justified curial intervention in the process preceding a determination on the merits.

----------------------------------------------------------------------------------------------------------------
[FN4] (1975) 27 WLR 318; [1976] AC 239
[FN5] (1996) 47 WIR 9; [1996] AC 527
[FN6] Supra at p 2
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[5] Similarly, in the instant case, the Court of Appeal found for the justiciability of the exercise of the powers by the Barbados Privy Council (BPC) under Section 78 of the Constitution on the premise that the BPC was a quasi-judicial or decision-making body. Be that as it may, there is good authority for holding that where a body, be it public or private, judicial, quasi-judicial or administrative is charged with making determinations affecting the rights or interests of persons, the process employed in reaching such determinations is subject to judicial review. In Breen v Amalgamated Engineering Union[FN7] Lord Denning observed:

"even though its functions are not judicial or quasi-judicial, but only administrative, still it must act fairly. Should it not do so, the courts can review its decision, just as it can review the decision of a statutory body... If a man seeks a privilege to which he has no particular claim - such as an appointment to some post or other - then he can be turned away without a word. He need not be heard. No explanation need be given: See the cases cited in Schmidt v Secretary of State for Home Affairs (1969) 2 Ch 149, 170-71. But if he is a man whose property is at stake, or who is being deprived of his livelihood, then reasons should be given why he is being turned down and he should be given a chance to be heard. I go further: If he is a man who has some right or interest, or some legitimate expectation of which it would not be fair to deprive him without a hearing, or reasons given, then these should be afforded him, according as the case may demand"

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[FN7] [1971] 2 QB 175 at 191
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[6] Contrary to the submissions of counsel for the appellants, the weight of authority argues against the need to determine whether the function to be performed by the BPC was quasi-judicial or administrative since the distinction appears to have lost all significance for determining the legality of the acts of public authorities, which, in making determinations affecting the rights or interests of private citizens, are required to act fairly[FN8].

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[FN8] See Lord Denning in Schmidt and Another v Secretary of State for Home Affairs (1969) 2 Ch 149 at p 170
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[7] Indeed, the principle of procedural fairness is such an imperative of the conduct by bodies, public or private, called upon to determine rights or interests of parties that its absence has been determined to constitute a lack of jurisdiction such that the courts will intervene to ensure compliance therewith[FN9]. Consider in this context the judgment of the Court of Appeal delivered by Lord Woolf MR. in Regina v Lord Saville of Newdigate et al, ex parte A & Others[FN10]. In affirming this principle in O'Reilly and Others v Mackman & Others[FN11] Lord Diplock averred:

"But the requirement that a person who is charged with having done something, which, if proved to the satisfaction of a statutory tribunal, has consequences that will, or may, affect him adversely, should be given a fair opportunity of learning what is alleged against him and of presenting his case is so fundamental to any civilized legal system, that it is to be presumed that Parliament intended that a failure to observe it should render null and void any decision reached in breach of this requirement."

----------------------------------------------------------------------------------------------------------------
[FN9] Attorney General v Ryan [1980] AC 718 at 730; Regina v Secretary of State for Home Department ex parte Fayed [1998] 1 WLR 763 at 772; Anisminic Limited v Foreign Compensation Commission [1969] 2 AC 147
[FN10] [2000] 1 WLR 1855 at [38]. See also Lloyd v Mc Mahon (1987) AC 625; Regina v SS for the Environment ex parte Hammersmith & Fulham London Borough Council [1991] AC 521 and Regina v Secretary of State for Home Dept ex parte Fayed (1998) 1 WLR 1 WLR 763 at pp 774 and 776
[FN11] [1983] 2 AC 237 at p 276
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[8] Developing public law principles establish that it is not important whether the Barbados Privy Council acting pursuant to powers conferred on it by section 78 of the Constitution, was required to perform a quasi-judicial or administrative function or whether the subject matter to be determined was a legal right, a legitimate expectation or other interest falling short of a legal right, the requirement of procedural fairness must be satisfied. And it is of no avail to counsel for the appellants to submit that the source of the power to be exercised was prerogative rather than statutory because the courts' intervention would not ordinarily address the merits of the determination but the process involved in reaching it.[FN12] Fitzpatrick JA in Yassin v Attorney General of Guyana[FN13] said:

"In this case justiciability concerning the exercise of mercy applies not only to the decision itself but to the manner in which it is reached. It does not involve telling the Head of State whether or not to commute. And where the principles of natural justice are not observed in the course of the process leading to its exercise, which processes are laid down by the Constitution, surely the court has a duty intervene, as the manner in which it is exercised may pollute the decision itself."

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[FN12] Anisminic Ltd v Foreign Compensation Commissions (1969) 2 AC 147
[FN13] (1996) 62 WIR at p 98
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[9] This dictum was approved by the Board in Lauriano v Attorney General of Belize.[FN14] Refusal of the courts to be shut out by legislation from reviewing the exercise of discretionary powers which affect the rights of the individual is evidenced in a line of authorities which drew a distinction between process and the merits of a decision.[FN15] The critical question to be determined here, however, is whether the courts are entitled to put shut out clauses set out in national constitutions, which are expressed to be the supreme law, in the same category as such clauses appearing in ordinary national legislation. Although this issue was carefully addressed by the Hon. Attorney General in the court below it was not raised before us by learned counsel for the appellants.

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[FN14] (1995) 47 WIR 74

[FN15] Anisminic Ltd v Foreign Compensation Commission (1969) 2 AC 147; Breen v Amalgamated Engineering Union (1971) 2 QB 1751; Attorney General v Ryan (1980) AC 718; Council of Civil Service Unions v Minister of the Civil Service (1984) 3 All ER 935 and Lauriano v Attorney General and Another (1996) 2 LRC 96; Regina v Secretary of State for Home Department ex parte Fayed (1998) 1 WLR 763 at pp 774 and 776
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[10] In addressing the ouster clause in his written submissions Mr.. Forde QC, lead counsel for the appellants, pointed out that this Court should uphold the provision set out in Section 77(4) of the Constitution of Barbados since it was plain and unambiguous in meaning. He emphasized that the only other ouster clause employed by the draftsman in the Constitution was under Section 106. He maintained that both Sections 77(4) and 106 of the Constitution encapsulated powers which were traditionally prerogative in nature and as such the instant case should be distinguished from Harrikissoon v Attorney General[FN16] and Endell Thomas v Attorney General of Trinidad and Tobago[FN17] where the plaintiffs' private rights had been infringed due to certain procedural irregularities. In effect, the inference to be drawn was that the ouster clauses set out in Sections 77(4) and 106 of the Barbadian Constitution, encapsulating as they did prerogative powers, were materially different from those engaged in the aforementioned cases and should be construed differently by this Court. However, learned counsel for the appellants declined to produce any authorities to support the inference that ouster clauses set out in national constitutions were qualitatively different from those contained in ordinary legislation, requiring different treatment by the courts.

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[FN16] (1979) 3 WIR 348
[FN17] (1981) 32 WIR 375; [1982] AC 113
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[11] Consequently, I am constrained to rely on authorities which make no distinction between these two types of ouster clauses. A case in point turned on the interpretation of Section 102(4) of the Trinidad & Tobago Constitution (1962) which, mutatis mutandis, anticipated the provision of Section 77(4) of the Barbados Constitution. The provision reads as follows:

"(4)The question whether – (a) a commission to which this section applies has validly performed any function vested in it by or under this Constitution; (b) any member of such a commission or any other person has validly performed any function delegated to such member or person in pursuance of the provisions of Section 84(1), or Section 93(1) or Section 99(1), as the case may be, of this Constitution; or (c) any member of such a commission or any person has validly performed any other function in relation to the work of the commission or in relation to any such function as is referred to in the preceding paragraph; shall not be inquired into in any court."

[12] In delivering the judgment of the Board on this issue in Endell Thomas v Attorney General of Trinidad & Tobago[FN18] Lord Diplock observed:

"The full doctrine laid down in Smith v East Elloe Rural District Council as to the effectiveness of 'no certiorari' clauses has since fallen into disfavour and has been whittled down considerably in England after the 1962 Constitution of Trinidad & Tobago had been drafted, particularly by the decision of the House of Lords in Anisminic Ltd v Foreign Compensation Commission (1969) 2 AC 147 where one of the few remaining 'no certiorari' clauses that had survived the Tribunals and Inquiries Act 1958 was held to be insufficient to oust the jurisdiction of the High Court to set aside an order of an administrative tribunal that acted outside the limited jurisdiction conferred on it by Parliament... However, their Lordships do not find it necessary in the instant case to analyze the speeches in Anisminic and later English cases that have followed it, or to do more than say that it is plainly for the court and not for the commission to determine what, on the true construction of the Constitution, are the limits to the functions of the Commission."

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[FN18] Ibid at p 393, p 135
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[13] Consistently with the opinion of Lord Roskill in Council of Civil Service Unions v Minister for the Civil Service[FN19], the Board in Neville Lewis acknowledged that the exercise of the prerogative of mercy was for the Governor General acting beyond curial review. Such a finding, however, did not immunize the entire process from judicial review since as Lord Diplock in Abbott v Attorney General of Trinidad and Tobago[FN20] and Lord Goff in Thomas Reckley v Minister of Public Safety & Immigration[FN21] had intimated, there was a right to have a petition of mercy considered by the Advisory Committee. The requirement of procedural fairness, which, in the majority advice of the Board in Neville Lewis, was a function of assimilating "protection of the law" set out in section 13 of the Jamaican Constitution and "due process of the law" set out in section 4(a) of the 1976 Constitution of Trinidad and Tobago, also prescribed that the Jamaica Privy Council was obliged to await and consider the recommendations of the Commission before making a determination in the exercise of the prerogative of mercy. And since the relevant provisions of the Constitutions of Jamaica and Barbados were almost identical in object and intent the Court of Appeal correctly held that, notwithstanding section 77(4) of the Barbados Constitution, which was not replicated in the Jamaica Constitution, the exercise by the Governor General of the powers conferred under section 78 was subject to judicial review. I was not persuaded by the submissions of learned counsel for the appellants that the determination of the Board in Neville Lewis was not applicable to Barbados since the doctrine of precedent was not, in his submission, ambulatory in Commonwealth Caribbean states. For the reasons set out above as well as those adduced by my learned brothers and sister in their judgments, I concur in the determination of the Court of Appeal that the prerogative of mercy should be exercised by procedures which are fair and proper and to that end are subject to judicial review. In so doing the Court of Appeal applied Neville Lewis which was expressed to be legally binding. I also concur in the Board's determination in Neville Lewis but I entertain strong reservations about endorsing the reasoning which was expressed to inform it.

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[FN19] Supra at p 418
[FN20] (1979) 32 WIR 347 at p 350
[FN21] Supra at p 539, p 18
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[14] Accepting as authoritative Lord Millett's clarification in Briggs v Baptiste[FN22] of the ratio decidendi in Thomas v Baptiste where he asserted that "(i)t confirmed the principle that the consideration of a reprieve is not a legal process and is not subject to the constitutional requirement of due process...", then it does appear to follow, aequo vigore, in my opinion that by applying the determination in Thomas v Baptiste, mutatis mutandis, to the facts in Neville Lewis, the Board could not by compelling reasoning have arrived at the conclusion that the process preceding the exercise of the prerogative of mercy was justiciable. The flawed reasoning of the majority of their Lordships probably prompted an exasperated Lord Hoffmann to remark in his vigorous dissenting advice:

"On the Inter-American Commission issue the majority have found in the ancient concept of due process of law a philosopher's stone undetected by generations of judges, which can convert the base metal of executive action into the gold of legislative power. It does not, however, explain how the trick is done. Fisher v Minister of Public Safety and Immigration (No. 2) and Higgs and Mitchell v Minister of National Security are overruled, but the arguments stated succinctly in the former and more elaborately in the latter are brushed aside rather than confronted..." [FN23]

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[FN22] (1999) 55 WIR 460 at p 472; (2000) 2 AC 40 at p 54
[FN23] Supra at p 88
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[15] In Higgs & Mitchell v Minister of National Security[FN24] Lord Hoffmann divined the ratio decidendi of Thomas v Baptiste as positing "that the due process clause in Section 4(a) of the Trinidad and Tobago Constitution gave the Crown power to accept an international jurisdiction as part of the domestic criminal justice system." At the material time he hesitated to say whether the Board's action was right or wrong. In Neville Lewis the Board, endorsing the determination of the Jamaica Court of Appeal, assimilated "due process of law" set out in Section 4(a) of the Constitution of Trinidad and Tobago and "protection of the law" appearing in Section 13 of the Constitution of Jamaica in order to incorporate the relevant international jurisdiction of the American Convention o Human Rights ("the Convention") in the domestic criminal justice system and to determine that the Jamaican Privy Council was obliged to await the reports of the Inter-American Human Rights Commission (IAHRC) before exercising the prerogative of mercy.[FN25] The Board's decision was clearly intended to secure for the convicted murderers on death row the common law requirement of procedural fairness and to reflect the evolving higher standards of international human rights law which have impacted positively on the administration of domestic criminal justice systems the world over, especially in relation to matters of life and liberty.

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[FN24] (1999) 55 WIR 10 at p 22
[FN25] Neville Lewis v Attorney General (2000) 57 WIR 303
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[16] Many Commonwealth Caribbean states which expressed their intention to make this Court their court of last resort have internalized the decision of Neville Lewis in their common law and, in the case of Barbados, in its supreme law. Consequently, I apprehend that the overriding regional public interest in procedural fairness and stability in the administration of criminal justice strongly advise adopting the Board's decision even if this decision does not constitute the conclusion of sound reasoning, subject to placing it on a juridically feasible basis. Postulated in other terms, the primordial requirements of legal certainty and procedural fairness in my view must be seen by this Court to trump the flawed reasoning of the Board with a probable positive impact on good governance in the sub-region based on the rule of law.

[17] The second issue is as follows:
In what manner, if at all, might unincorporated human rights treaties which give a right of access to international tribunals, affect the rights and status of a person convicted of murder and sentenced to the mandatory punishment of death by hanging?

[18] In addressing this issue it may be useful to bear in mind that international treaties, irrespective of their subject matter, which are not in force for a state nor are being provisionally applied by that state, may have no legal incidence for that state either at the international or municipal plane unless, of course, their provisions encapsulate norms of ius cogens, or in the case of dualist jurisdictions customary international law which are, ipso facto, incorporated in the common law. Having established that the state concerned has consented to be bound by a treaty, its legal incidence for persons or entities within the contemplation of relevant provisions will depend on the adoption, entry into force or provisional application of the instrument, as the case may be. Where the instrument has entered into force or is being provisionally applied, actual or prospective states parties to the regime, as the case may require, would have acquired rights or assumed obligations under the instrument such that violation of its terms would engage their international responsibility. Normally, provisions of treaties in force or provisionally applied are incapable of conferring rights or imposing obligations on private individuals in dualist jurisdictions in the absence of incorporation. And even in monist jurisdictions treaty provisions intended to have direct effect must satisfy specified conditions relating to operability. In effect, unless an unincorporated human rights treaty has entered into force by signature, ratification, or some other agreed procedure, or is being provisionally applied by prospective parties, it cannot affect the rights of a private person.

[19] There appears to be a disconnect also between this issue as formulated by learned counsel for the parties and the facts established in this case. However, given the context of its elaboration, this issue must be seen to address, inferentially, two questions as follows:

(a) to what extent, if any, may an unincorporated ratified treaty providing for a personal right of access to international human rights bodies affect the rights and status of a convicted murderer sentenced to the mandatory death penalty by hanging?
(b) to what extent may the executive rely on relevant provisions of the constitution of a state to extend its "protection of the law" provisions by incorporating an international complaints procedure set out in an unincorporated treaty in its municipal criminal law system?

[20] As concerns the first question to be addressed, I am of the view that an unincorporated ratified treaty has legal incidence in the municipal law of interested parties of the ratifying state subscribing to dualism where the executive concerned have implemented its provisions by engaging in conduct at the municipal plane engendering legitimate expectations on the part of representees that the executive will comply with the relevant provisions of the unincorporated ratified treaty. The second question addresses the issue of the allocation of state powers among the principal branches of government in dualist jurisdictions and the competence of the executive to modify by the exercise of treaty- making prerogative powers the provisions of the constitution through the employment of procedures not sanctioned by the constitution and whose effect compromises the separation of powers principle. I shall consider these questions under various rubrics.

UNINCORPORATED TREATIES AND LEGITIMATE EXPECTATIONS

[21] Treaties normally have legal incidence only at the international plane. Given that international law and municipal law are ordinarily conceived as two non-convergent normative regimes, municipal courts maintain that unincorporated treaties are incapable of creating legal rights for private entities[FN26]. Many Commonwealth Courts following, somewhat uncritically, the decision in Minister of Immigration and Ethnic Affairs v Teoh[FN27], have accepted, nevertheless, that a ratified unincorporated treaty engenders a legitimate expectation at the municipal plane, particularly in the area of international human rights law, even though as a matter of law, an international act is normally perceived as incapable, ipso facto, of having legal incidence in the municipal law of dualist jurisdictions[FN28]. I propose to examine below the issue of treaty-derived legitimate expectations as a more credible basis for the determination in Neville Lewis than the reasons adduced by the Board. Before doing so, however, I shall address in a general way some important features of a legitimate expectation in public law.

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[FN26] Malone v Metropolitan Police Commissioner (1979) Ch 344; Blackburn v Attorney General (1971) 1 WLR 1037 at p 1040
[FN27] (1995) 183 CLR 273
[FN28] See, for example, the following cases: in Britain Regina v Secretary of State for Home Department ex parte Brind (1991) 1 AC 696; in New Zealand see Tavita Minister of Immigration (1994) 2 NZLR 257; Ashby v Minister of Immigration 1 [1981] NZLR 222; in India, Vishaka v State of Rajasthan AIR 1997 SC 3011 and Peoples Union for Civil Liberties Union v Union of India AIR 1997 SC 1203; in Canada, Ahani v Attorney General of Canada (2002) Ont Reports 8.2.02; in Trinidad and Tobago, Ismay Holder v Council of Legal Education HCA No 732 of 1997; in Jamaica, Seafood and Ting Int Ltd (1999) 58 WIR 269
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[22] Where public authorities are called upon to exercise discretionary powers, be they prerogative or statutory, they may engage in conduct creative of legitimate expectations on the part of representees liable to be affected by such conduct. In the opinion of Lord Fraser of Tullybelton, the source of a legitimate expectation may be a promise or an established practice by a public authority indicating how discretionary powers will be exercised[FN29]. The genesis of the term, which is analogous to the private law principle of estoppel, has been located, not without considerable historical significance, in Lord Denning's judgment in Schmidt v Secretary of State for Home Affairs.[FN30] Legitimate expectations sought to be relied on as a basis of judicial review must emanate from an unequivocal and unambiguous representation, expressed or implied, of a public authority indicating the manner of employment of executive discretionary powers[FN31]. Although a legitimate expectation may not be assimilated to a legal right amenable to vindication in the courts of law, the claimant must, except otherwise permitted by statute, establish to the satisfaction of the courts sufficient of a legitimate interest in order to secure the leave of the court to apply for judicial review.[FN32] In Barbados, for example, no leave is required to apply for judicial review under the Administrative Justice Act, Cap 109. Leave is required under Order 53 of the Rules of the Supreme Court, however, but this is no longer used by anyone. In addressing the legitimacy of an expectation Sedley J commented:

"Legitimacy in this sense is not an absolute. It is a function of expectations induced by government and of policy considerations which militate against their fulfilment. The balance must be in the first instance for the policy-maker to strike; but if the outcome is challenged by way of judicial review, I do not consider that the court's criterion is the bare rationality of the policy maker's conclusion. While policy is for the policy-maker alone, the fairness of his or her decision ... remains the court's concern."[FN33]

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[FN29] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at p 401
[FN30] (1969) 2 Ch, 149 at p 171
[FN31] R v Jockey Club ex parte Ram Race Courses Ltd [1993] 2 All ER 225; Regina v Secretary of State for Education & Employment ex parte Begbie (2000) 1 WLR 1115
[FN32] Regina v Secretary of State for the Home Department ex parte Hargreaves [1997] 1 WLR 906 at 917-8
[FN33] Regina v Ministry of Agriculture Fishers & Food ex parte Hamble ( Off Shore) Fisheries Ltd [1995] 2 All ER 714 at 731
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[23] The principle of legitimate expectations in public law seeks to ensure for private individuals procedural fairness[FN34] and legal certainty by preventing public authorities resiling from the substance of undertakings.[FN35] Sir David Simmons, Chief Justice of Barbados, stated the essential rationale of the doctrine "as resting upon an all-pervasive duty to act fairly[FN36] Legitimate expectations may, on the one hand, relate to a substantive benefit which the competent authority has power to confer when it exercises its discretionary powers; on the other hand, they may relate to the procedure to be employed by the executive before exercising its discretionary powers. The courts, in determining whether or not to offer judicial protection to a legitimate expectation or allow it to be frustrated by a change of executive policy, are inevitably caught up in a balancing exercise involving, on the one hand, competing claims of overriding public interest in legality and administrative autonomy and, on the other hand, of an enduring private interest in procedural fairness and legal certainty. But, before determining whether to afford protection to an expectation, the courts will have to be satisfied about its legitimacy. In order to be legitimate the expectation must derive from lawful, unambiguous conduct by the executive.[FN37] Further, the claimant must establish that in all the circumstances the expectation was reasonably entertained at the material time and justifies the protection of the courts.[FN38]

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[FN34] Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629
[FN35] R v North and East Devon Health Authority ex parte Coughlan (2000) QB 213
[FN36] Pearson Leacock v Attorney General of Barbados: No 1712 of 2005 (unreported) at 26
[FN37] South Buckinghamshire District Council v Flanagan (2002) 1 WLR 2601; R v Inland Revenue Commissioners ex parte MFK Underwriting Agencies Ltd (1990) 1 WLR 1545 at 1569; R v Jockey Club, ex parte Ram Race Courses Ltd [1993] 2 All ER 225
[FN38] R v Secretary of State for Education & Employment ex parte Begbie [2000] 1 WLR 1115
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[24] Fundamental to the legitimacy of an expectation is its legality.[FN39] To accord legitimacy to an unlawful act undermines the principle of legality and compromises the ultra vires doctrine by unlawfully sanctioning the augmentation of administrative power by executive fiat. To be legitimate the conduct of the executive must not only be lawful, it must also have been authorized[FN40] or must have been within the ostensible authority of the decision-maker.[FN41]

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[FN39] R v Ministry of Agriculture, Fisheries & Food ex parte Hamble (Offshore) Fisheries Limited [1995] 2 All ER 714 at 735
[FN40] Coghurst Wood Leisure Park Ltd v Secretary of State for Transport (2002) EWHC 1091
[FN41] R v Leicester City Council ex parte Powergen UK Limited (2000) 80 P & CR 176; South Buckingham District Council v Flanagan (2002) EWCA Civ 690; R v Secretary of State for Home Depot ex parte Bloggs (2002) EWHC 1921
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[25] Consistently with the principle of legality the House of Lords held that a public authority was not competent to give a commitment not to perform its statutory duties.[FN42] Nonetheless, there is some persuasive authority to the contrary that an ultra vires act may, in appropriate circumstances, engender a legitimate expectation.[FN43] But even where the exercise of discretionary powers is intra vires, judicial constraints may be placed on its exercise. Thus the British Court of Appeal held that a competent authority may not without warning discontinue an established practice for twenty-five years since this would defeat unfairly the legitimate expectations of the claimant and may even constitute an abuse of power.[FN44]

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[FN42] Attorney General of Hong Hong v Ng Yuen Shiu [1983] 2 AC 629; see also R v Inland Revenue Commissioners ex parte Preston (1985) AC 835
[FN43] Rowland v The Environment Agency (2004) Ch 1
[FN44] R v Inland Revenue Commissioners ex p Unilever (1996) STC 681
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[26] In special circumstances a substantive legitimate expectation may be accorded judicial protection such as where, in a particular case, the decision-maker has, contrary to an undertaking made to a specific claimant, effected a change in policy.[FN45] The courts will offer protection to the claimant unless the competent authority had granted a hearing and overriding considerations of the public interest had advised a change in policy. Similarly,[FN46] it was held that a public authority was required to act in accordance with declared policy unless overriding considerations of the public interest advised a departure therefrom. Where, for example, a claimant relies in good faith on the representation of a public authority to his prejudice, otherwise referred to as detrimental reliance, and the authority purports to resile from the resulting legitimate expectation, the courts would intervene where it can be established that the private interest in fairness and legal certainty trumps the overriding public interest in the flexibility of the exercise of discretionary powers. The attempted policy change may even be construed to constitute an abuse of power by the executive.[FN47]

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[FN45] R v Home Secretary ex parte Khan (1984) 1WLR 1337
[FN46] R v Home Secretary ex parte Ruddock (1987) 1 WLR 1482 and R v Home Secretary ex parte Gangadeen (1998) 1 FLR 762
[FN47] R v Inland Revenue commissioners ex parte Preston (1985) AC 835 and R v Ministry of Agriculture, Fisheries and Food ex parte Hamble (Offshore) Fisheries Ltd (1995) 2 ALL ER 714
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[27] In several important Commonwealth Caribbean death penalty cases,[FN48] the public law principle of legitimate expectations was addressed by the Board. However, this was done in an uneven and marginal manner. For the greater part the principle of legitimate expectations was perceived by the Board as engendering a mere procedural interest vulnerable to frustration by a change in executive policy communicated to the representee and accompanied by the opportunity to make representations. Sometimes the principle was perceived as deriving from the mere ratification of a treaty and at other times from both ratification and treaty-compliant executive conduct at the municipal plane. In either case, however, the Board concluded that such legitimate expectations could be frustrated by a change in executive policy. The Board did not think that treaty-derived legitimate expectations could eventuate in the conferment of a substantive benefit since this would be giving indirect effect to an unincorporated treaty contrary to the relevant constitutional principle which was well established in the common law. Unfortunately, in my view, the Board appeared to treat the decision in Minister of Immigration and Ethnic Affairs v Teoh as having crystallized the principle of treaty-derived legitimate expectations rather than as expressing an evolving public law principle with peculiar attributes readily adaptable to changing international human rights standards.

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[FN48] Fisher (1998) 53 WIR 27; Fisher v Minister of Public Safety and Immigration (No 2) (2000) 1 AC 434; Thomas v Baptiste (1998) 54 WIR 387; Thomas v Baptiste (2000) 2 AC 1; Higgs (1999) 55 WIR 10; Higgs v Minister of National Security (2000) 2 AC 228; Neville Lewis (2000) 57 WIR 275; Neville Lewis v A-G of Jamaica [2001] 2 AC 50
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TREATY-DERIVED LEGITIMATE EXPECTATIONS

[28] An examination of the decisions in several Caribbean death penalty cases does appear to exhibit a measure of ambiguity on the part of their Lordships concerning the origin of a treaty-based legitimate expectation. For example, in some instances the Board appeared to focus on the treaty-compliant conduct of the executive at the municipal plane as engendering the legitimate expectation; but, in so doing they appear to be applying Teoh whose primary focus is on executive conduct at the international plane, namely, the ratification of a treaty. However, in my view treaty-compliant conduct of the executive at the municipal plane is necessary to establish a "foothold"[FN49] as the basis of curial intervention at this level in order to protect the expectation engendered.

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[FN49] The concept of a "foothold" at the municipal plane as a basis for municipal courts exercising jurisdiction was employed in Occidental Exploration and Production Company v Republic of Ecuador (2005) EWCA Civ 1116 at [43] and [55]
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[29] In Fisher No 2, for example, the focus was on the treaty-compliant conduct of the executive at the municipal plane. Here, the executive of the Government of the Bahamas had, pursuant to Article 51 of the Regulations of the Inter-American Human Rights Commission (IAHRC) allowed, not unwittingly, convicted murderers to submit petitions to the IAHRC. The executive had also expressly undertaken not to exercise the prerogative of mercy before considering the recommendations of the IAHRC. This must be seen to be treaty-compliant conduct since although the Bahamas did not ratify the Convention like other Commonwealth Caribbean States, the Statute of the IAHRC formed part of the international constituent instruments of the Organization of American States (OAS) of which the Bahamas was a member.

[30] Similarly, in Higgs the Board, also focusing on treaty-compliant executive conduct, determined that the existence of a treaty may, in appropriate circumstances, engender a legitimate expectation on the part of a representee. In the dictum of Lord Hoffmann:

"(s)uch legitimate expectations may arise from any course of conduct which the executive has made it known that it will follow. And as the High Court of Australia made clear in Teoh's case, the legal effect of creating such a legitimate expectation is procedural. The executive cannot depart from the expected course of conduct unless it has given notice that it intends to do so and has given the person affected an opportunity to make representations"[FN50]

But even Lord Hoffmann did not draw a clear line of distinction between treaty- compliant executive conduct at the municipal plane and executive conduct at the international plane.

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[FN50] Supra per Lord Hoffmann at p 17
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[31] In Thomas v Baptiste learned counsel for the respondents challenged the public law principle of legitimate expectations as the basis of a finding in favour of the appellants on two grounds. Firstly, ratification of the Convention was expressed to be a private act between two subjects of international law unaccompanied by any public statement by the executive. Secondly, ratification of the Convention was incapable of engendering an expectation that the Government would enact legislation to incorporate the Convention. In rejecting the submissions of counsel the Board maintained that the appellants were not merely relying on the ratification of the Convention but also on its implementation by relevant treaty-compliant conduct of the executive. The Board, however, relied on Teoh to determine that the legitimate expectations of the appellants had been frustrated by the relevant instructions of the executive even though such instructions were unlawful. The executive were entitled to act inconsistently provided the competent body acted fairly towards the representee. In the characterization of the Board:

"The short answer to this is that the appellants do not rely on the government's ratification of the Convention alone. They rely on the fact that the government implemented the Convention, which did not need the introduction of any legislative measures to bring it into operation. Condemned men were allowed to petition the Commission; the government responded to the Commission's request for information; and confirmed the position by publishing the instructions" [FN51]

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[FN51] Supra at p 424
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[32] In Neville Lewis the majority of the Board did not examine the principle of legitimate expectations in any depth. The Board did focus on the treaty-compliant or implementing conduct of the executive such as allowing the condemned men to submit petitions to the international human rights bodies; allowing the Jamaica Privy Council (JPC) to consider the recommendations of these bodies before exercising the prerogative of mercy; staying of executions pending determination of petitions by international bodies. The majority of the Board conceded, however, that despite the legitimate expectations engendered by these actions, the executive was at liberty to act inconsistently to frustrate those expectations by issuing contradictory instructions. Furthermore, by assimilating "protection of the law" set out in section 13 of the Jamaican Constitution and "due process of law" set out in section 4(a) of the Constitution of Trinidad and Tobago, the Board was able to determine that the executive, by ratifying the Convention and engaging in treaty-complaint conduct at the municipal plane, grounded the entitlement of the condemned men to have the JPC await and consider the recommendations of the international human rights bodies before exercising the prerogative of mercy.[FN52]

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[FN52] Supra
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[33] I am persuaded, however, that the courts, in addressing the issue of legitimate expectations of condemned felons, should examine the nature and provenance of the executive conduct relied on; ascertain the private and public interests to be safeguarded; determine the standard of review applicable to the decision-maker's action as a basis for according the desired quality of curial protection to the legitimate expectation of the claimant. Where the legitimate expectations of representees are being compromised by the arbitrary or abusive exercise of discretionary powers, the courts should offer the representee the highest level of protection, particularly where human rights of the representees are involved. In the four death penalty cases issuing from the Caribbean mentioned above, the Board appeared to have approached the principle of legitimate expectation, exemplified in Teoh as if it had crystallized.

[34] In analyzing and according curial protection to legitimate expectations deriving from treaties, reliance is often placed by municipal courts of the Commonwealth on the majority judgment in Minister of State for Immigration & Ethnic Affairs v Teoh[FN53] which may be regarded as the locus classicus on this issue. In this case Mason, CJ and Deane J determined:

"Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act particularly where the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the convention..." It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the convention or should personally entertain the expectation..."

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[FN53] (1995) 183 CLR 273
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[35] This dictum did not find favour with the Australian Government. The Attorney General and Foreign Minister of Australia, within five weeks following the judgment in Teoh's case, averred "on behalf of the Government, that entering into an international treaty is not reason for raising any expectation that government decision-makers will act in accordance with the treaty if the relevant provisions of that treaty have not been enacted into domestic Australian law."[FN54] The joint statement mentioned above was accompanied by an acknowledgement of the fact that Australia at that time was party to 920 treaties any of which might engender a legitimate expectation. Within three months of Teoh's decision a bill was introduced in the Parliament intituled The Administrative Decisions (Effect of International Instruments) Bill 1995, proposing to override the decision of the Court in Teoh's Case. Clearly, this case did not crystallize the law on legitimate expectations issuing from treaties.

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[FN54] See Joint Statement by Minister of Foreign Affairs, Senator Gareth Evans and the Attorney General Michael Lavarch made in 1995: See Allars, (1995) 17 Sydney L Rev 204 at pp 237-41
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[36] The Board in Fisher (No 2), Higgs, Thomas v Baptiste and Neville Lewis, cited with approval the relevant determination in Minister of State for Immigration and Ethnic Affairs v Teoh[FN55] that ratification of an international treaty, ipso facto, engendered a legitimate expectation. This determination omitted to explain, unfortunately, how such an unobtrusive and virtually surreptitious a process as ratification of a treaty which, according to Article 2(1)(b) of the Vienna Convention on the Law of Treaties, is an international act operating entirely at the international plane, was capable of creating a legitimate expectation, ipso facto, at the municipal level in dualist jurisdictions subscribing to the constitutional principle relating to the inability of unincorporated treaties to have legal incidence in municipal law for private entities. Furthermore, in the majority advice the executive were free to act inconsistently provided that the representee was notified in advance of an intention to effect a change of executive policy and given an opportunity to make representations in order to persuade the executive against a change of policy. It seems to me, however, that unless appropriate executive conduct is established at the municipal plane, municipal courts would have no jurisdiction to accord curial protection to legitimate expectations engendered by international acts. To invest an international act like ratification with substantive conduct at the municipal plane must be seen to compromise the constitutional principle that unincorporated treaties form no part of domestic law in dualist jurisdictions.[FN56]

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[FN55] Supra at footnote 53
[FN56] R v Secretary of State for the Home Department ex parte Brind (1991) 1 AC 696
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[37] The foregoing observations notwithstanding, nearly all common law jurisdictions in the Commonwealth have endorsed the determination in Teoh's case as good law, and the requirements of legal certainty and stability in the administration of criminal justice do appear to advise against challenging it at this late stage. Lord Woolf in endorsing the majority judgment in Minister of State for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 stated:

"I will accept that the entering in a treaty by the Secretary of State could give rise to a legitimate expectation on which the public in general are entitled to rely. Subject to any indication to the contrary, it could be a representation that the Secretary of State would act in accordance with any obligations which he accepted under the treaty. This legitimate expectation could give rise to a right to relief as well as additional obligations of fairness, if the Secretary of State, without reason, acted inconsistently with the obligations which the country had undertaken": R v Secretary of State for the Home Department ex parte Mohammed Husain Ahmed & Others.[FN57]

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[FN57] Supra
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[38] However, Lord Woolf was quite emphatic, in rendering his opinion, that the executive may defeat a legitimate expectation deriving from a treaty by issuing a contradictory policy statement on the relevant provisions of the instrument. This opinion as qualified accurately reflects the position of the Board in Fisher v Minister of Public Safety and Immigration (No 2)[FN58]; Thomas v Baptiste[FN59]; Higgs v Minister of National Security [FN60] and Neville Lewis v A-G of Jamaica.[FN61]

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[FN58] Supra
[FN59] Supra
[FN60] Supra
[FN61] Supra
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[39] As the executive arm of what is indisputably a mini state subscribing to the dualist system of international law and, ipso facto, vulnerable to informal coercion or the blandishments of considerably more powerful actors in the community of nations, due in large measure to an irreversible deficit in relevant capabilities, the appellants must be assumed to entertain a visceral concern about the innovative juridical postulate relating to the ability of unincorporated ratified treaties to alter the constitutional provisions of an independent state. Such a postulate would also operate, somewhat unwittingly, to facilitate third state intervention in the domestic affairs of weak sovereignties. In addressing this issue in both his written and oral submissions to this Court, counsel for the appellant was adamant that small states ratified treaties for various reasons and that unincorporated treaties were incapable of conferring rights on private persons in municipal law.

CONVENTION RIGHTS AND LEGITIMATE EXPECTATIONS

[40] The constitutional dilemma likely to confront dualist jurisdictions by postulating that the exercise of prerogative powers at the international plane may engender, ipso facto, legitimate expectations at the municipal level appeared to have been overlooked in the general acceptance of the determination in Teoh's case. Accepting the validity of this perception, it does appear to follow from the nature of treaties as solemn commitments liable to engage the international responsibility of states, that a legitimate expectation issuing from Article 4(6) or Article 44 of the Convention conferring legal rights directly on an ascertainable body of private individuals, reinforced by treaty-compliant executive conduct implementing relevant treaty provisions at the municipal plane, was qualitatively different from the generalized expectations engendered by the mere ratification of a treaty. Such a legitimate expectation in my view may not be easily frustrated by a mere contradictory statement of policy by the executive at the municipal plane. What appears to be required in order to frustrate the expectation, reinforced and validated as it was by treaty-compliant executive conduct implementing the relevant provisions at the municipal plane, in my opinion, are appropriate normative measures at the international plane to defeat the relevant treaty commitments, namely, denunciation or entry of reservations, coupled with effective measures at the municipal plane. Compare in this context the repeal or amendment of the provisions of an enactment constituting the source of a legitimate expectation thereby operating to defeat the same.[FN62] Absent such conditions, the legitimate expectation must be seen to be indefeasible where a change in executive conduct would work injustice or unfairness to a current representee without safeguarding an overriding public interest in the change.

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[FN62] Rowland v The Environment Agency (2005) Ch 1
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[41] Legitimate expectations issuing from treaty provisions conferring rights directly on private entities and reinforced by implementation or treaty-compliant executive conduct at the municipal plane must be seen, in my opinion, to have a peculiar character requiring a higher standard of curial protection. For the purpose of this analysis I propose to employ the term "conclusion of a treaty" in preference to "ratification of a treaty", since Article 2(1)(b) of the Vienna Convention on the Law of Treaties assimilates the terms "ratification", "acceptance", "approval", and "accession". And, in any event, many synallagmatic treaties enter into force on mere signature by competent authorities. Where the executive, in the exercise of its prerogative powers, conclude a treaty, relevant case law supportive of Teoh has determined, somewhat curiously for dualist jurisdictions in my view, that such an act constitutes a statement to potential beneficiaries at the municipal plane of the state concerned that the executive intend to pursue a course of conduct specified in the instrument. Consistently with this position Lord Hoffmann remarked in Higgs vMinister of National Security:[FN63]

"… the existence of a treaty may give rise to a legitimate expectation on the part of citizens that the Government in its acts affecting them, will observe the terms of a treaty: see Minister for Immigration and Ethnic Affairs v Teoh (1995) 193 CLR 273. In this respect there is nothing special about a treaty. Such legitimate expectations may arise from any course of conduct which the executive has made it known that it will follow... The executive cannot depart from the expected course of conduct unless it has given notice that it intends to do so and has given the person affected an opportunity to make representations.

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[FN63] Supra at p 17
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[42] However, I have considerable difficulty in admitting that an international act, ipso facto, engenders a legitimate expectation at the municipal plane in dualist jurisdictions. Such an admission would, by compelling inference, call into question the validity of the constitutional principle regarding the inability of unincorporated treaties to have legal incidence at the municipal plane in dualist jurisdictions. Ratification according to Article 2(1)(b) of the Vienna Convention is "the international act so named whereby a state establishes on the international plane its consent to be bound by a treaty." Treaty- derived legitimate expectations from the perspective of Teoh must be seen to have their provenance in executive conduct which in public law is still immunized from curial intervention. The public law principle of procedural propriety would not apply in the absence of compliance with relevant legislative provisions such as set out in the Ratification of Treaties Act (1989) of Antigua and Barbuda.

[43] Decisions of the Board issuing in death penalty cases from the Caribbean mentioned above have, questionably, intimated that legitimate expectations deriving from ratification of the Convention are merely procedural in nature and vulnerable to frustration by a change in executive policy communicated to death row claimants accompanied by an opportunity to make representations. Nevertheless, the requirements of good governance based on the rule of law, in my opinion, prescribe that where international commitments are implemented by unequivocal executive conduct at the municipal plane which is compliant with relevant treaty provisions of unincorporated instruments conferring rights directly on individuals relating to life and liberty, the legitimate expectations engendered thereby are not only sui generis but should also be seen to be indefeasible for current representees. In effect, such treaty-derived legitimate expectations should not be perceived as merely procedural and amenable to frustration by a change in executive policy communicated to a representee or a small body of ascertainable representees, such as condemned convicts on death row, coupled with an opportunity to make representations to the competent authority.[FN64]

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[FN64] R v Secretary of State for Education & Employment ex parte Begbie (2000) 1 WLR 1115; R v North & East Devon Health Authority ex parte Coughlan (2000) QB 213
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[44] Given the finality of the ultimate sanction, where the executive engender legitimate expectations by treaty-compliant conduct at the municipal plane intended to implement, unequivocally, rights accorded to a representee by Articles 4(6) and 44 of the Convention and seek to resile therefrom by conduct which works unfairness to a condemned representee, in the absence of a corresponding overriding benefit to the public, the courts should accord the highest level of protection to such expectations, even in the absence of detrimental reliance. Inconsistent executive conduct in this context must be seen to constitute an impermissible abuse of power. The sui generis nature of the legitimate expectations within the contemplation of this judgment is expressed to be engendered by treaty-complaint executive conduct implementing the provisions of Article 4(b) and 44 of the Convention. These provisions which do not require legislative enactment for their implementation confer rights directly on the condemned men which they are liberty to enjoy without the intervention of the state. In the characterization of Lord Mance, ". treaties may in modern international law give rise to direct rights in favour of individuals . particularly where the treaty provides a dispute resolution mechanism capable of being operated by individuals on their own behalf and without their national states involvement or even consent ... In the area of human rights a number of treaties provide individuals with rights of access to vindicate the protection afforded by the treaty"[FN65] Consequently, the legitimate expectations engendered by established treaty-compliant executive conduct implementing provisions conferring rights directly on individuals were more akin to rights which could not be unilaterally or arbitrarily curtailed by the executive. As the majority of the Board said in Thomas v Baptiste: "Their Lordships accept the general proposition that the executive may withdraw rights which it has granted. But this principle is not without exception. Executive action may give rise to a settled practice, and this in turn may found a constitutional right which cannot lawfully be withdrawn by executive action alone." [FN66]

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[FN65] Occidental Exploration and Production Co & Republic of Ecuador [2005] EWCA Civ 1116 at p 10
[FN66] Supra at p 422-423; also Thornhill v Attorney General (1974) 27 WIR 281
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[45] In my view legitimate expectations do not comprise a homogeneous class of extra-legal private interests. And, given that treaties comprehend a wide range of subject matters and are creative of legion rights and obligations, it would not be unreasonable to assume that the expectations arising from the conclusion of such instruments admit of classification into various categories. In this case, the legitimate expectations created by treaty-compliant executive conduct at the municipal plane implementing the provisions of Article 4(6) and Article 44 of the Convention appear to have singular and peculiar attributes requiring the highest level of curial protection. In Occidental Exploration and Production Company v Republic of Ecuador it was held that if two states agreed in an unincorporated bilateral investment treaty to confer rights intended to be enforceable domestically by private persons, accompanied by action at the municipal plane engaging curial intervention, the courts will enforce such rights; for example, where the instrument "makes clear that an investor national of one of the States may pursue direct rights against the other, without the involvement, presence or even consent of his own national state,"[FN67] and such rights are given a "foothold" at the municipal plane by treaty- compliant conduct.

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[FN67] (2005) EWCA Civ 1116 at [43] and [55]
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[46] The decision in Teoh's case cannot be regarded as requiring all legitimate expectations to be treated as homogeneous. Indeed, there is sound reason to conclude that legitimate expectations aroused by the mere ratification of a treaty should attract a low level of curial protection, if any, since the majority in Teoh's case determined it was not necessary for "a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation".[FN68] Further, there is some judicial scepticism whether ratification of a treaty constitutes a representation by the executive regarding the performance of its functions.[FN69] In my opinion legitimate expectations engendered by treaty-compliant executive conduct at the municipal plane implementing provisions purporting to confer treaty rights directly on the claimant and addressed to the representee are sui generis requiring the highest standard of curial protection. Such legitimate expectations may only be frustrated by a change in policy for future representees where the courts, in balancing the public interest in expeditious enforcement of the law and the private interest of the individual in legal certainty and procedural fairness are satisfied that the executive have established an overriding public interest in the policy change. For example, in addressing the determination in Teoh in their joint dissenting judgment, Lords Slynn and Hope, consistently with this position, emphasized in Fisher v Minister of Public Safety & Immigration (No 2)[FN70]: "We fully accept that a change of policy might be announced to prevent legitimate expectations arising in the future, but we do not read the judgment as saying that once a procedure like the present has actually begun a Government can by a unilateral announcement terminate legitimate expectations already created."

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[FN68] Supra at p 17
[FN69] Baker v Canada (Minister of Citizenship and Immigration [1999] 2 SCr 817
[FN70] (1998) 53 WIR at 45
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[47] Where a legitimate expectation is engendered by a ratified unincorporated treaty whose relevant provisions purport to confer rights directly on private individuals and which have been implemented by lawful, unequivocal treaty-compliant executive conduct at the municipal plane, thereby grounding municipal curial intervention, the requirements of good governance prescribe that such an expectation become, ipso facto, indefeasible for the current representee despite a change of executive policy communicated to the representee coupled with an opportunity to make representations. In death penalty cases the indefeasibility of such a legitimate expectation is eminently justified by the fact that the ultimate sanction is involved, and "protection of the law" constitutional provisions entitle the condemned man to a continuing right to procedural fairness which the executive is unable to trump by establishing an overriding public interest in expeditious execution of the law.[FN71]

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[FN71] Reckley v Minister of Public Safety (No 2) (1996) 47 WIR 9 at 19B
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[48] The conduct of the executive in implementing the relevant provisions of the Convention by allowing access by condemned men to an international complaints process pursuant to a treaty obligation not violative of a ius cogens norm or other customary international norm, cannot be seen to compromise the principle of legality since it is neither unconstitutional nor unlawful at the international nor municipal plane. Indeed, the applicable rule of construction that in the absence of a contrary intention, legislation must be construed to bring a state in compliance with its international treaty obligations does appear to support the legality of such conduct.[FN72] Nor is such conduct unauthorized since it emanates legitimately from the executive who will be hard put to establish an overriding countervailing public interest in acting contrary to generally accepted evolving higher standards of international human rights. Given the facts in the Neville Lewis case, it would be arbitrary and an abuse of power for the executive to rely on a change in executive policy to frustrate the legitimate expectation of the condemned representee to have the competent authority await the report of the relevant international human rights body for a reasonable period before making its determination on the exercise of the prerogative of mercy.

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[FN72] Garland v British Rail Engineering Limited (1983) 2 AC 751 at 771
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[49] In arriving at this conclusion, I am cognizant of the fact that a municipal appellate court like the Caribbean Court of Justice has no competence to construe the Convention[FN73]. There can be no doubt, however, that municipal courts may examine the relevant treaty provisions of the Convention.[FN74] In my opinion, implementation of a treaty by treaty- compliant conduct on the part of the executive engenders a legitimate expectation but does not constitute giving indirect effect to legally binding rights of an unincorporated treaty.[FN75] Such conduct gives effect to treaty obligations which do not require legislative enactment to make them operable at the municipal plane. Legislation to implement treaty provisions is required only where new or amended enactments are contemplated or expenditure from the national consolidated fund is needed to implement provisions of a treaty.[FN76]

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[FN73] Malone v Metropolitan Police Commissioner (1979) Ch 344
[FN74] Littrel v The United States (No 2) (1995) 1 WRL 52 at 93
[FN75] Contrast the dictum of Lord Millett in Thomas v Baptise, supra, at 747
[FN76] The Parlement Belge (1879) LR 4 PD 129
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[50] An indefeasible legitimate expectation within the contemplation of paragraph [40] must be seen to subsist for a reasonable period corresponding to the duration of an efficient international review process of the competent human rights body. Such an expectation must also be seen to require the Barbados executive to allow the petitions of the respondents to be examined and considered by the competent human rights body prior to its transmission to the Barbados Privy Council. In this context it is important to point out that in order to respect the continuing right of the respondents to the protection of law guaranteed by section 11(c) of the Constitution, the legitimate expectation engendered by relevant treaty-compliant conduct of the Barbados executive must be seen to be indefeasible for a reasonable period consistent with procedural fairness. Procedural and substantive legitimate expectations may be frustrated by a change of policy communicated to the claimant and whose deleterious effects may be subsequently ameliorated; in the former case by affording the representee a belated opportunity to be heard, and in the latter case by appropriate compensation either voluntarily offered by the executive or mandated by the courts[FN77]. In the latter case "a payment of money is not an anticipatory payment of damages: it is a practical means of eliminating unfairness which a policy change is otherwise going to inflict."[FN78] But since neither of these ameliorative measures may afford the respondents the protection of the law to which they are constitutionally entitled while they are alive, I would agree, subject to the conditions and qualifications set out above, that an indefeasible status must be accorded to the legitimate expectation of the current representees as inferred from the persuasive joint dissenting opinion of Lords Slynn and Hope in Fisher (No 2).[FN79]

----------------------------------------------------------------------------------------------------------------
[FN77] R v North & East Devon Health Authority ex parte Coughlan; R (on the application of Bibi) v Newham LBC, supra
[FN78] Per Sedley LJ in R v Commissioner of Excise ex parte FI Services Limited (2001) EWCA Civ 762
[FN79] Supra, at Note 70
----------------------------------------------------------------------------------------------------------------

UNINCORPORATED RATIFIED TREATIES AND MUNICIPAL LAW

[51] In what appeared to be a dramatic and remarkable reversal of historical understanding of dualism and the separation of powers principle, the Board to all intents and purposes determined in Neville Lewis that ratified unincorporated human rights treaties had direct, determinative legal incidence on the Westminster-type constitutions of Commonwealth Caribbean States. The Board made this determination despite the clarifying dicta of Lord Millett in Briggs v Baptiste quoted above where he confirmed that Thomas v Baptiste "did not overturn the constitutional principle that international conventions do not alter domestic law except to the extent that they are incorporated into domestic law by legislation", and authoritative Commonwealth case law to the contrary[FN80]:

----------------------------------------------------------------------------------------------------------------
[FN80] See The Parlement Belge (1879) 4 PD 129; Garland v British Engineering Ltd (1983) 2 AC 751; Regina v Secretary of State for the Home Department ex parte; Brind and Others (1991) 1 AC 696; Chung Chi Cheung v the King (1939) AC 160; JH Rayner (Mincing Lane) Ltd v Department of Trade & Industry (1990) 2 AC; Higgs v Minister of National Security (2000) 2 AC 228; R v SS for Foreign and Com Affairs ex parte Rees- Mogg [1994] QB 552
----------------------------------------------------------------------------------------------------------------

[52] Since this novel juridical postulate articulated by the Board in Thomas v Baptiste appeared to be at large, I apprehend that it could have farreaching implications for good governance and structured, social and economic development of Commonwealth Caribbean States. Firstly, given the peculiar attributes of Westminster-type constitutions prevalent in the region, this determination boldly challenged the validity of hallowed constitutional principles generally regarded as indispensable for constitutional democracy as this system of government was understood and practised in the region, and analysed by Lord Diplock in Moses Hinds v the Queen[FN81] Secondly, this innovative determination inadvertently provided a convenient vehicle for third country interference in the domestic affairs of Caricom States with probable far-reaching negative implications for the national interest, given their lack of capabilities to ratify treaties with due diligence. It has been authoritatively established that the status of an unincorporated international human rights instrument is identical to that of other treaties and may not be perceived to justify so fundamental a change in the applicable law. Sir Robert Megarry in addressing the obligation assumed by the United Kingdom in Article 1 of the European Convention for the Protection of Human Rights and Fundamental Freedom affirmed: "The United Kingdom as a High Contracting party which ratified the Convention on March 8, 1951 has thus long been under an obligation to secure these rights and freedoms to everyone. That obligation, however, is an obligation under a treaty which is not justiciable in the courts of this Country."[FN82] Similarly, in Ahani v The Attorney General of Canada[FN83] Dambrot J held in the court below, "if there is a right protected by section 7 of the Charter not to have the outcome of any pending appellate or other legal process preempted by executive action, it does not extend to an analogous legal process such as a petition to an international body whose advice is not binding domestically." I propose to examine the current and developing Commonwealth case law on the legal incidence of unincorporated treaties in municipal law, as well as some applicable norms of international law in an attempt to evaluate the legal legitimacy of this novel juridical postulate of the Board.

----------------------------------------------------------------------------------------------------------------
[FN81] (1975) 24 WIR 326
[FN82] Blackburn v Attorney-General (1971) 1 WLR 1037 at 1040; In Malone v Metropolitan Police Commissioner (1979) Ch 344 at 328
[FN83] (2002), Ont Reports, Feb 8 (2002) at 115
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[53] An authoritative judicial determination of the legal incidence of ratified unincorporated treaties on municipal legislation in Caricom Member States, comprising as they do common law and civil law jurisdictions, must address the differential impact of treaties in both the monist and dualist systems of law: For the position in Commonwealth countries, see Note 28 supra. More importantly, in addressing the impact of unincorporated ratified treaties in dualist Caricom Member States, courts of competent jurisdiction cannot be insensitive to the peculiar vulnerability of these states in the unorganized international community and the critical importance of constitutional provisions reflecting the foundational commitments of these states designed to promote generally accepted principles of good governance as intimated by learned counsel for the appellants.

[54] Constitutions of Member States of the Commonwealth Caribbean invariably incorporate provisions designating these instruments the supreme law, which, in the characterization of Lord Diplock ". embody what is in substance an agreement reached between representatives of the various shades of political opinion in the state as to the structure of the organs of government through which the plenitude of the sovereign power of the state is to be exercised in future.": Moses Hinds v The Queen.[FN84]

----------------------------------------------------------------------------------------------------------------
[FN84] (1975) 24 WIR 326 at p 331
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[55] Such constitutions, given the extremely volatile political environment in which they were elaborated and are required to operate, axiomatically assumed that the cherished constitutional principle of the separation of powers providing the basis of good governance according to conventional wisdom would inform the responsible exercise of governmental authority. In a majority advice of their Lordships, however, "(t)o say that a constitution is based upon the principle of the separation of powers is a pithy description of how the constitution works. But different constitutions apply this principle in their own ways and a court can concern itself only with the actual constitution and not with what it thinks might have been an ideal one."[FN85] Notwithstanding the foregoing, it is common ground that Westminster-type constitutions allocate legislation to the legislature even though it is very often the case that in several Caricom jurisdictions members of the executive constitute the bulk of the lower House and take the initiative in the introduction of legislation. But even in such situations, Ministers of Government as members of the executive, are quintessentially engaged in performing a legislative function.

----------------------------------------------------------------------------------------------------------------
[FN85] per Lord Hoffmann in Boyce and Anor v R (2004) UK PC 32 at p 17
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[56] The later Westminster-type constitutions, in the opinion of Lord Diplock "include a Chapter dealing with fundamental rights and freedoms. The provisions of this chapter form part of the substantive law of the state and until amended by whatever special procedure as laid down in the Constitution for this purpose, impose a fetter upon the exercise by the legislature, the executive and the judiciary of the plenitude of their respective powers.": Moses Hinds v the Queen.[FN86] And it does appear to follow, a fortiori, that it is not open to any one branch of Government to take any action whose legal effect would be tantamount to an amendment of the constitution except in accordance with prescribed constitutional procedures.[FN87]

----------------------------------------------------------------------------------------------------------------
[FN86] Supra at p 332
[FN87] Independent Jamaica Council for Human Rights Limited v Honourable Syringa Marshall-Burnett & The Attorney-General of Jamaica (2005) 65 WIR 268
----------------------------------------------------------------------------------------------------------------

[57] In making the relevant determination the test is whether the action under consideration is in substance different; "for if it is different ... the effect is to alter the regime[FN88]" established by the constitution, be it by introducing new institutional arrangements, or by enlarging the scope of existing constitutional provisions.[FN89] In Neville Lewis the Board in effect determined that the scope of due process provisions of a national constitution may be enlarged, unilaterally, by the employment of prerogative powers at the international plane. But in a later decision the Board advised: "...the Constitution and not, as in the United Kingdom, Parliament is (save in respect of Chapter III of the Constitution) to be sovereign. It was of course foreseen that with the passage of time and the benefit of experience alteration of the constitution would on occasion be necessary, and the framers of the constitution took care to grade the provisions so as to require differing levels of popular support depending on the structural significance of the provision to be altered."[FN90] Put another way, the courts, as guardians of the constitutions, must not be perceived to arrogate the right to effect modifications in the agreed allocation of governmental powers contrary to politically determined and constitutionally sanctioned amendment procedures. And it is of particular importance to note in this context, the acknowledged materiality of the democratic principle in the amending procedures compliance with which must be perceived as providing the generally accepted basis for constitutional legitimacy. These diametrically opposite determinations of the Board defy reconciliation.

----------------------------------------------------------------------------------------------------------------
[FN88] Supra at p 332
[FN89] Darrin Roger Thomas and Another v Cipriani Baptiste and Others; Neville Lewis v Attorney-General of Jamaica supra
[FN90] per Lord Bingham: in Independent Jamaican Council for Human Rights v Syringa Marshal and Attorney General of Jamaica at p 275; see also Lord Hoffmann in Higgs at Note 96 infra
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[58] The clear inference from the institutional arrangements devised for Westminster-type constitutions is that prominent among the immutable imperatives guiding their elaboration are sanctity of the separation of powers principle, the inviolability of the democratic principle and the fundamental importance of the amendment procedures governing the realignment of the powers of government. Indeed, respect for these fundamental constitutional principles appears to have provided the essential rationale of the decision of the Board in Independent Jamaica Council for Human Rights Limited v Honourable Syringa Marshall-Burnett and the Attorney-General of Jamaica. Consequently, I would wish to adopt Lord Diplock's authoritative and elucidating analysis of Caricom Westminster-type constitutions as a peremptory point of departure for an appreciation of judicial determinations concerning the legal incidence of unincorporated treaties in the Member States of the Caribbean Community. For such an appreciation requires unqualified recognition of the nice balance of factors - political, cultural, economic, moral and psychological among others, which inform the legal parameters of the constitutions of the complex, vulnerable, culturally-multifaceted societies of the Commonwealth Caribbean States.

[59] Judicial intervention to amend constitutions reflective of the supreme law, however, is not ordinarily entertained by competent decision-makers in the Commonwealth Caribbean even to avoid what Lord Wilberforce felicitously characterized as "the austerity of tabulated legalism".[FN91] Consistently with this position, the Board has recently determined that where the legislature undertakes to effect such modification, applicable constitutional procedures are required to be followed.[FN92] I felt constrained to comment briefly on Commonwealth Caribbean constitutions in order to emphasize that an exercise of prerogative powers at the international plane is incapable, ipso facto, of modifying ordinary municipal legislation, much less the supreme law as expressed in the national constitution of the state.

----------------------------------------------------------------------------------------------------------------
[FN91] Minister of Home Affairs and Anor v Collins Mac Donald Fisher and Anor [1980] AC 319 at p 328
[FN92] Independent Jamaica Council for Human Rights Limited v Honourable Syringa Marshall-Burnett & The Attorney-General of Jamaica
----------------------------------------------------------------------------------------------------------------

[60] In Thomas v Baptiste the Board must also be seen to have made a quantum leap in judicial ratiocination by determining that "due process of law" as expressed in Section 4(a) of the Constitution of Trinidad and Tobago was inherent in the common law thereby validating, ipso facto, the incorporation of an international complaints procedure in the domestic criminal justice system. Such a determination, I would venture to suggest, in addition to transgressing the permissible parameters of interstitial articulation, was juridically infeasible in the absence of the Board establishing that the relevant provisions of the Convention, namely Articles 4(6) and 44, encapsulated customary international law and had become, ipso facto, incorporated in the common law.

[61] This brings me to address the relationship between the common law and customary international law, which calls to mind the authoritative statement on this issue by Lord Denning who observed that customary international law, unless in conflict with statute, constitutes part of the common law without the need for transformation by the legislature or the courts:

"(s)eeing that the rules of international law have changed -- and do change - and that the Courts have given effect to the changes without any Act of Parliament, it follows to my mind inexorably that the rules of international law, as existing from time to time, do form part of our English law. It follows, too, that a decision of this Court - as to what was the ruling of international law 50 or 60 years ago, is not binding on this Court today. International law knows no rule of stare decisis. If this Court today is satisfied that the rule of international law on a subject has changed from what it was 50 or 60 years ago, it can give effect to that change - and apply the change in our English law - without waiting for the House of Lords to do it."[FN93]

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[FN93] Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529 at 592
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[62] This statement of the law by Lord Denning is supported by internationally recognized publicists like RY Jennings, former president of the International Court of Justice who submitted:

"(i)t has always been held that general customary international law is a part of the law of England and, therefore, will be applied "as such". Thus international law is a matter of judicial notice, and there is no question of having to prove it by evidence. It is argued and applied in the same way as any other part of the common law. On the other hand, for constitutional reasons, a treaty which requires for its carrying into effect an alteration of English Law, or a charge on public funds, requires an act or other instrument making the needful changes in English Law if the Courts are to give effect to it".[FN94]

But such customary rules of international law must not conflict with statute which always prevails: Mortensen v Peters[FN95]

----------------------------------------------------------------------------------------------------------------
[FN94] R Y Jennings, An International Lawyer Takes Stock, ICLQ Vol 39, July 1990 at p 523
[FN95] (1906) 8F 93
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[63] Addressing the legal incidence of unincorporated ratified treaties on national legislation in Commonwealth Caribbean States, Lord Hoffmann stated the position eruditely and persuasively:[FN96]

"(i)n the law of England and the Bahamas (whose constitution is representative of those in the Caribbean Community), the right to enter into treaties is one of the surviving prerogative powers of the Crown ... the Crown may impose obligations in international law upon the state without any participation on the part of the democratically elected organs of government. But the corollary of this unrestricted treaty-making power is that treaties form no part of the domestic law unless enacted by the legislature. This has two consequences. The first is that the domestic courts have no jurisdiction to construe or apply a treaty: See JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry (1990) 2 A The second consequence is that unincorporated treaties cannot change the law of the land. They have no effect upon the rights and duties of citizens in common or statute law; see the classic judgment of Sir Robert Phillimore in The Parlement Belge (1879) 4 PD 129. They may, however, have indirect effect upon the construction of statutes as a result of the presumption that Parliament does not intend to pass legislation which would put the Crown in breach of its international obligations. Or the existence of a treaty may give rise to a legitimate expectation on the part of citizens that the government, in its acts affecting them, will observe the terms of the treaty: see Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273... The rule that treaties cannot alter the law of the land is but one facet of the more general principle that the Crown cannot change the law by the exercise of its powers under the prerogative. This was the great principle which was settled by the Civil War and the Glorious Revolution in the 17th Century" (emphasis supplied).

----------------------------------------------------------------------------------------------------------------
[FN96] John Junior Higgs v Minister of National Security and Others at p 17
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[64] This classic statement of the law provides reliable and authoritative guidance for any court in a dualist jurisdiction and was perceptively anticipated by Lord Oliver who stated:

"(A)s a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because as a source of rights and obligations, it is irrelevant."[FN97]

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[FN97] JH Rayner (Mincing Lane) Ltd at p 500; Laker Airways v Dept of Trade (1977) 1QB at 717-18
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[65] Consistently, with these authoritative statements of the law, it is a well established principle of construction "that the words of a statute passed after the Treaty has been signed and dealing with the subject matter of the international obligation . are to be construed if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation and not to be inconsistent with it".[FN98] Application of this rule of construction to the relevant law of the Commonwealth Caribbean States, however, would have to take into account the date of enactment of relevant instruments, including their constitutions, and the date of entry into force of the applicable treaty for the state in question.[FN99] It is important to bear in mind, however, that that this rule of construction cannot prevail against a clear statement of the statute to the contrary: The Zamorawo[FN100]

----------------------------------------------------------------------------------------------------------------
[FN98] per Lord Diplock in Garland v British Rail Engineering Limited [1983] 2 AC 751 at 771; see also Regina v Secretary of State for the Home Department ex parte Brind and Others [1991] 1 AC 696. A similar approach to the interpretation of treaties appears to have been taken by Canadian Courts: See Baker v Canada (Minister of Citizenship and Immigration (1999) 2 SCR 817; Pfizer Canada v Canada (Attorney General) (2003) 224 DLR (4th) 178; Reference Re Public Service Employer Relations Act (Alberta) (1987) 1 SCR 513; Canadian Foundation for Children, Youth and the Law v Canada (Attorney Genera) (2004) SCC 4; and 114 957 Canada Lte e (Spraytech Societe d' arrosage) et al v Town of Hudson (2001) 2 SCR 241
[FN99] See Fisher v Minister of Public Safety and Immigration supra
[FN100] [1916] 2AC 77 at pp 91-4
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[66] In Thomas v Baptiste, Lord Millett emphasized that:

"(t)he due process clause must therefore be broadly interpreted. It does not guarantee the particular forms of legal procedure existing when the constitution came into force; the content of the clause is not immutably fixed at that date. But the right to be allowed to complete current appellate or other legal process without having it rendered nugatory by executive action before it is completed is part of the fundamental concept of due process."[FN101]

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[FN101] (1998) 54 WIR 387 at p 423
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[67] But, as Lord Goff wryly observed in his dissenting judgment, although the widest adoption of humane standards should be sought to be achieved, this should not be done by subverting the constitutions of states or by a misuse of legal concepts and terminology. Where, however, the emergence of a new norm of customary international law may be authoritatively established, there would be ample justification for a finding that it has been automatically received in the common law so as to affect the rights of citizens. But their Lordships did not even bother to consider whether a relevant norm of customary international law was involved and its impact on municipal law.

[68] Consequently, since the Jamaican Court of Appeal had ruled in the Neville Lewis case that the instructions of the Governor General were unlawful, a ruling which the Board upheld in rejecting the cross-appeal by the Attorney-General of Jamaica, the appellants would have been entitled to have their petition heard within the reasonable time of 18 months established by the Board.[FN102] However, this dictum of Lord Millett must be appreciated in the context of a finding for an indefeasible legitimate expectation. In my view, the Board in overruling de Freitas v Benny[FN103] and Thomas Reckley v Minister of Public Safety and Immigration and Others (No 2)[FN104] on the basis of a novel legal principle contrary to historical judicial understanding of the legal incidence of unincorporated treaties must be perceived as transgressing the permissible parameters of judicial activism in ruling as it did, with probable farreaching negative consequences for good and stable governance in the small, fragile states of the Caribbean Community.

----------------------------------------------------------------------------------------------------------------
[FN102] Earl Pratt and Anor v Attorney-General for Jamaica and Anor (1993) 43 WIR 340
[FN103] Supra
[FN104] Supra
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[69] Incontrovertibly, the Board had earlier held that "(w)hether or not the provisions of the Convention are enforceable as such in domestic courts, it seems to their Lordships that the state's obligation internationally is a pointer to indicate that the prerogative of mercy should be exercised by procedures which are fair and proper and to that end are subject to judicial review."[FN105] In effect, I do not think it was necessary for the Board to resort to the treaty-making prerogative powers of the state to justify the determination that the prerogative of mercy was subject to judicial review. The basis for such a finding had already been persuasively established in English case law[FN106]. Further, their Lordships had pertinently observed that "(e)ven without reference to international conventions it is clear that the process of clemency allows the fixed penalty to be dispensed with and the punishment modified in order to deal with the facts of a particular case so as to provide an acceptable and just result."[FN107]

----------------------------------------------------------------------------------------------------------------
[FN105] per Lord Slynn in Neville Lewis v Attorney General of Jamaica (2000) 57 WIR 275 at p 296; [2001] 2 AC 50 PC at 79
[FN106] Council of Civil Service Unions et al v Minister for the Civil Service supra
[FN107] Per Lord Slynn, Neville Lewis v Attorney General at p 295
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[70] It is not without some considerable significance that their Lordships in Neville Lewis adduced the fact in support of their ruling that "Jamaica ratified the American Convention on Human Rights 1969 on 7 August 1978 and it is now well established that domestic legislation should as far as possible be interpreted so as to conform to the state's obligation under such a treaty: Mattadeen v Pointu."[FN108] But what their Lordships had, unfortunately, omitted to concede was that that principle of construction may only be applied to legislation enacted after the conclusion of relevant international instruments. For as Lord Hoffmann intimated: "... unincorporated treaties ... may, however, have indirect effect upon the construction of statutes as a result of the presumption that Parliament does not intend to pass legislation which would put the Crown in breach of its international obligations."[FN109] Clearly, the presumed conformity of the legislation with the international obligation necessarily pre-supposed the existence of such an obligation at the material time and suggested, by compelling inference, that the determination of the Board that the ratification of a treaty could extend the scope of a pre-existing municipal law instrument possessing the status of a national constitution must have been juridically misconceived.

----------------------------------------------------------------------------------------------------------------
[FN108] (1999) 1 AC 98, 113 g-h
[FN109] Higgs v Minister of National Security and Others (1999) 55 WIR 10 at p 17; [2000] 2 AC 228 at p 241
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[71] Indeed, Lord Diplock had earlier articulated the principle as follows:

"it is a principle of construction of United Kingdom statutes ... that the words of a statute passed after the Treaty has been signed and dealing with the subject matter of the international obligation of the United Kingdom, are to be construed if they are reasonably capable of bearing such a meaning as intended to carry out the obligation, and not to be inconsistent with it"[FN110] (emphasis added)

----------------------------------------------------------------------------------------------------------------
[FN110] Garland v British Rail Engineering Ltd supra at 751
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[72] This statement of the law was affirmed by the House of Lords in an earlier decision[FN111] and reaffirmed more recently.[FN112] As pointed out by Lord Bridge[FN113]

"… like any other treaty obligations which have not been embodied in the law by statute, the Convention (for the Protection of Human Rights and Fundamental Freedoms) is not a part of the domestic law, that the courts accordingly have no power to enforce Convention rights directly and that, if domestic legislation conflicts with the Convention, the courts must nevertheless enforce it ... When Parliament has been content for so long to leave those who complain that their Convention rights have been infringed to seek their remedy in Strasbourg, it would be surprising suddenly to find that the judiciary had, without Parliament's aid, the means to incorporate the Convention into such an important area of domestic law and I cannot escape the conclusion that this would be a judicial usurpation of the legislative function." (emphasis added)

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[FN111] Waddington v Miah (1974) 59 Cr App R 149
[FN112] Regina v Secretary of State for the Home Department ex parte Brind (1991) 1 AC 696
[FN113] Regina v Secretary of State for Home Department ex parte Brind, supra at 747
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[73] Viewed in the context of the peculiar and enduring attributes of Westminster – type constitutions of Commonwealth Caribbean states analysed by Lord Diplock in Moses Hinds v The Queen,[FN114] the second sentence attributed to their Lordships in Thomas v Baptiste, namely, "(b)y ratifying a treaty which provides for individual access to an international body, the government made that process for the time being part of the domestic criminal justice system and thereby temporarily at least, extended the scope of the due process clause in the Constitution" must be perceived as an innovative juridical postulate vulnerable to invalidation by serious legal analysis. Standing alone, this juridical neologism postulates, by ineluctable inference, that the supreme law of the state could be amended by unilateral executive action contrary to required constitutional procedures; that such an amendment of the supreme law need not be attended by any measure of permanence; and that the executive in its absolute discretion, and in complete defiance of the hallowed principle of separation of powers inherent in Westminster-type constitutions, was competent to modify the administration of criminal justice in the state.

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[FN114] Supra
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[74] This determination of the Board flies in the face of settled case law commencing with the landmark decision in The Parlement Belge, affirmed by the British Court of Appeal in J.H. Rayner (Mincing Lane) Limited v Department of Trade and Industry, approved by the Board in Fisher v Minister of Public Safety & Immigration (No. 2), reaffirmed by the Board in Higgs v Minister of National Security and followed by various Commonwealth courts as indicated above, as well as the Court of Appeal of Jamaica in National Resources Conservation Authority v Seafood and Ting International Limited[FN115] and the Supreme Court of Trinidad and Tobago in Ismay Holder v Council of Legal Education.[FN116] To the extent, therefore, that the Board in Thomas v Baptiste affirmed that the "appellants were not seeking to enforce the terms of an unincorporated treaty, but a provision of the domestic law of Trinidad and Tobago contained in the Constitution.",[FN117] it must be seen to follow, aequo vigore, that the law regarding unincorporated treaties as set out in the cases mentioned above remains good law and the offending determinations of the Board in Thomas v Baptiste and Neville Lewis should be regarded as otiose and juridically unsustainable. In point of fact in Thomas v Baptiste "(t)heir Lordships recognize the constitutional importance of the principle that international Conventions do not alter domestic law except to the extent that they are incorporated into domestic law by legislation. The making of a Treaty in Trinidad and Tobago as in England, is an act of the executive government, not of the legislature. It follows that the terms of a treaty cannot affect any alteration to domestic law or deprive the subject of existing legal rights unless and until enacted into domestic by or under the authority of the legislature. "[FN118] In the result it is reassuring to reaffirm that unincorporated treaties do not, ipso facto, have determinative legal incidence in the municipal law of dualist jurisdictions.

----------------------------------------------------------------------------------------------------------------
[FN115] (1999) 58 WIR 269
[FN116] HCA No 732 of 1997
[FN117] Per Lord Millett, supra at 422
[FN118] Supra, per Lord Millett at p 422
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The third issue our Court is required to examine and determine reads as follows:

[75] Whether Section 24 of the Constitution authorizes the Court to commute a death sentence or to give relief similar to any of the measures reserved to the Governor General under Section 78 of the Constitution and, if so, whether in all the circumstances it was appropriate for the Court of Appeal to take into account the matters that it did in deciding whether to commute or give relief.

In respect of this issue I concur unreservedly in the judgments of my learned brothers and sister.

[76] I would dismiss this appeal with costs to each of the respondents certified fit for two attorneys-at-law.

/s/ Duke Pollard
Duke E E. Pollard


JUDGMENT OF THE HON MME JUSTICE BERNARD

I have had the benefit of reading the joint judgment of the learned President and Saunders J., and agree with the conclusions reflected in it. My judgment relates only to the first issue concerning the justiciability of the exercise of the powers of the Governor General conferred under Section 78 of the Constitution of Barbados.

[1] Section 76 of the Constitution provides for a Privy Council which shall consist of such persons as the Governor General may appoint after consultation with the Prime Minister, and it shall have such powers and duties as may be conferred upon it by the Constitution. The Governor General by virtue of Section 77(1) presides over all meetings of the Privy Council, and the powers exercisable by him acting in accordance with the advice of the Privy Council are conferred under Section 78 (1).

THE OUSTER CLAUSE

[2] The issue of justiciability of the exercise of the powers of the Governor General under Section 78 is inextricably linked to Section 77(4) which is an ouster clause to the effect that the question whether the Privy Council has validly performed any function vested in it by the Constitution shall not be inquired into in any court.

[3] Ouster clauses fall within a category of protective and preclusive clauses which Governments insert in statutes and constitutions to inhibit challenges by courts to executive or administrative powers. Courts, however, over the years have not been deterred by such pre-emptive strikes against their authority, and frequently find the executive and administrative actions which the clauses seek to protect to be justiciable, for example, on the grounds of excess of jurisdiction or breach of natural justice.

[4] The approach by courts to these clauses has undergone progressive change since the case of Smith v. East Elloe Rural District Council[FN1] where such a clause in an Act was held not to give any opportunity to a person aggrieved to question the validity of a compulsory purchase order made under the Act on the ground that it was made or confirmed in bad faith. A trend towards change was observed in the landmark decision of Anisminic Ltd. v. Foreign Compensation Commission and Another[FN2], where the ouster clause was couched in almost similar language to the one in Section 77(4) and which are referred to as "not to be questioned" clauses. In summary the House of Lords held, inter alia, that the ouster clause did not protect a determination which was outside of jurisdiction, and that accordingly the court was not precluded from inquiring whether or not an order of the Commission was a nullity. The effect of this decision is that a "not to be questioned" clause prevents judicial review only for such errors as can be said to be within jurisdiction. It is, however, recognised that a tribunal may act within jurisdiction but yet act wrongfully thereby rendering its actions a nullity. Lord Reid in his judgment in Anisminic (supra) at page 171 expressed it this way:

"....there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice".

----------------------------------------------------------------------------------------------------------------
[FN1] [1956] AC 736
[FN2] [1969] 2 AC 147
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[5] All of the cases decided in the English courts (except those of the Judicial Committee of the Privy Council) concerned the reviewability of ouster clauses in Acts of Parliament and other legislation. Professor Albert Fiadjoe in his book "Commonwealth Caribbean Public Law", 2nd Edn., pointed out that in the Caribbean the courts have been compelled to consider the effect of ouster clauses in constitutions which provide for unreviewability of acts of a Head of State or Service Commissions. Mention was made of the case of KeMr.ajh Harrikissoon v. Attorney General of Trinidad & Tobago[FN3] which concerned a "not to be questioned" clause in the Constitution of Trinidad & Tobago, but which the Board of the Privy Council found per curiam to be wide enough to deprive all courts of jurisdiction to entertain a challenge to its validity. Lord Diplock expressed the view that their Lordships did not find that that case provided an appropriate occasion for considering whether the section in the Constitution, despite its unqualified language, is nevertheless subject to the same limited kind of implicit exception as was held by the House of Lords in Anisminic (supra). He thought it was best left to be decided in some future case if one should arise.

----------------------------------------------------------------------------------------------------------------
[FN3] (1979) 3 WIR 348
----------------------------------------------------------------------------------------------------------------

[6] One did arise two years later in Endell Thomas v. Attorney General of Trinidad & Tobago[FN4] concerning the same clause in the same Constitution. Lord Diplock again had the opportunity to expatiate definitively on the issue, but because the Board did not find it necessary to analyse Anisminic since there was no breach of fundamental justice, he confined his comments to stating only that "it is plainly for the court and not for the commission to determine what, on the true construction of the Constitution, are the limits to the function of the commission". He went on to say:

"If the Police Service Commission had done something that lay outside its functions, such as making appointments to the teaching service or purporting to create a criminal offence, Section 102 (4) of the Constitution would not oust the jurisdiction of the High Court to declare that what it had purported to do was null and void."

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[FN4] (1981) 32 WIR 375
----------------------------------------------------------------------------------------------------------------

[7] What can be gleaned from the dicta in Thomas (supra) is that administrative acts of State tribunals or commissions committed clearly in excess of statutory powers or in contravention of the principles of fundamental justice are reviewable by the courts despite the constitutional and legislative protection from scrutiny which ouster clauses seek to provide. Lord Diplock in Attorney General v. Thomas d'Arcy Ryan[FN5] expressed it this way:

"It has long been settled law that a decision affecting legal rights of an individual which is arrived at by a procedure which offends against the principles of natural justice is outside the jurisdiction of the decision making authority."

The whole concept of fairness was reiterated later by Lord Woolf, M.R. in Regina v. Secretary of State for the Home Department ex parte Al-Fayed[FN6]. I am now of the view that it matters not whether such clauses are statutory or constitutional; the same principles are applicable with perhaps varying results depending on the power which the clause seeks to protect.

----------------------------------------------------------------------------------------------------------------
[FN5] [1980] AC 718, 730
[FN6] [1998] 1 WLR 763
----------------------------------------------------------------------------------------------------------------

[8] In light of the above my conclusion is that despite the ouster clause contained in Section 77(4) of the Constitution of Barbados the functions of the Barbados Privy Council exercised by the Governor General under Section 78(1) are reviewable by the courts if in the exercise of these functions it acts in breach of the principles of fundamental justice thereby acting outside its jurisdiction.

THE PREROGATIVE OF MERCY

[9] The powers conferred on the Governor General acting in accordance with the advice of the Privy Council involve the exercise of the prerogative of mercy as indicated by the side note to Section 78 (1) which reads as follows:

"(a) grant to any person convicted of any offence against the law of Barbados a pardon, either free or subject to lawful conditions;
(b) grant to any person a respite, either indefinite or for a specified period, from the execution of any punishment imposed on that person for such an offence;
(c) substitute a less severe form of punishment for that imposed on any person for such an offence; or
(d) remit the whole or part of any punishment imposed on any person for such an offence or any penalty or forfeiture otherwise due to the Crown on account of such an offence."

[10] The word "prerogative" suggests privilege exclusive to an individual, and historically prerogative powers resided solely in the Crown: See Blackstone 1825, Book 1. Dicey, however, expanded the prerogative to include much more than the powers exclusive to the monarch. He posited that the prerogative appears to be both historically and as a matter of actual fact nothing else than the residue of discretionary or arbitrary authority, which is at any given time legally left in the hands of the Crown." (Dicey 1959, p. 424-5).

[11] Whichever theory one prefers the prerogative of mercy was one which the courts have held to be unsuitable for judicial review as it confers no rights on a condemned person, mercy being according to Portia in Shakespeare's "The Merchant of Venice" "enthroned in the hearts of kings". In the case of de Freitas v. Benny[FN7], Lord Diplock issued his oft-cited dicta that "mercy is not the subject of legal rights", and "it begins where legal rights end." He elaborated on this by stating that a convicted person has no legal right even to have his case considered in connection with the exercise of the prerogative of mercy.

----------------------------------------------------------------------------------------------------------------
[FN7] (1975) 27 WIR 318; [1978] AC 239
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[12] Over the years the inviolability of the prerogative has been eroded, and it has now become the subject of judicial review as any other power which is abused. Lord Denning, M.R. in Laker Airways Ltd. v. Department of Trade[FN8] articulated it thus:

"Seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the courts just as any other discretionary power which is vested in the executive."

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[FN8] [1977] QB 643
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[13] This represented a later change in his reasoning as a few years earlier in Hanratty v. Lord Butler[FN9] when an attempt was made to sue a former Home Secretary for negligence for a decision made while in office, he had concluded that the prerogative of mercy is "one of the high prerogatives of the Crown", hence, the court could not interfere in the exercise of this function.

----------------------------------------------------------------------------------------------------------------
[FN9] [1971] 115 SJ 386
----------------------------------------------------------------------------------------------------------------

[FN14] What a difference twenty years makes as time and attitudes change! In 1993 that same prerogative of mercy was considered in R. v. Secretary of State for the Home Department, ex parte Bentley[FN10] when judicial review was allowed of the Home Secretary's refusal to grant a posthumous pardon for a youth hanged for murder forty years earlier. Ultimately no order was made, but the fact that judicial review of the Home Secretary's discretion was allowed, indicated that the prerogative of mercy was no longer sacrosanct. This same approach was taken in Burt v. Governor General[FN11] where Cooke, P. in a case also involving the prerogative of mercy, expressed the view that "as to prerogative powers generally, it has become accepted in recent years that the mere fact that a decision has been made under the prerogative does not exempt it from review in the courts. The test is rather whether the subject matter of the decision is justiciable." These cases though not directly related to the death penalty marked a decided departure from the traditional approach to the prerogative of mercy.

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[FN10] [1994] QB 349
[FN11] [1992] 3 NZLR 672
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[15] The test of examining the subject-matter rather than the source originated in the most significant decision on prerogative powers - Council of Civil Service Unions v. Minister for the Civil Service[FN12]. .It was held, per Lords Scarman, Diplock and Roskill, that the controlling factor in determining whether the exercise of the power was subject to judicial review was the justiciability of its subject matter rather than whether its source was the prerogative. This did not augur well for the prerogative of mercy which had been held ten years earlier in de Freitas v. Benny (supra) not to be justiciable as it was not the subject of legal rights. Lord Roskill opined in CCSU (supra) that "prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy as …. well as others, are not susceptible to judicial review because their nature and subject matter is such as not to be amenable to the judicial process."

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[FN12] [1985] AC 374
----------------------------------------------------------------------------------------------------------------

[16] CCSU was decided in 1984, and one wonders what was the rationale for concluding that the powers referred to by Lord Roskill were not susceptible to judicial review and not amenable to the judicial process. I apprehend that the reason for the prerogative of mercy falling into this category is its inherent character being based on the exercise of a discretion, and no legal right of a condemned man to have such a discretion exercised in his favour as was concluded by Lord Diplock in de Freitas (supra). However, modern thinking suggests that even where a statutory body or person exercises powers conferred by the executive the decisions of that body or person may attract judicial scrutiny if the basic principles of fairness are not observed. It was held per Lord Denning, M.R. in Breen v. Amalgamated Engineering Union and others[FN13] that "if a domestic body is set up and given a discretion, it is to be implied that the discretion must be exercised fairly; even though its functions are not judicial or quasi-judicial but only administrative, still it must act fairly, and should it not do so the courts can review its decision." Mercy may not and perforce, cannot be regarded as a right, but when its exercise is formalised by the establishment of a tribunal with statutory powers, that subject matter (mercy) ceases to be a discretion capable of being exercised capriciously; it becomes a matter to be determined in accordance with rules of fundamental justice. The decision-making process of the exercise of the prerogative of mercy must be no different from the exercise of other prerogative powers when states create tribunals vested with constitutional powers and procedures to regulate the process of granting mercy.

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[FN13] [1971] 2 QB 175, 176
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[17] This leads me to consider whether tribunals such as the Barbados Privy Council are merely advisory or are decision-makers. The learned trial judge at first instance came to the conclusion that it was advisory whereas the Court of Appeal held that it was a quasi-judicial body and a decision-maker which tenders advice to the Governor General who is mandated under Section 78(2) of the Constitution to act in accordance with its advice.

[18] Much discussion has centred around what is meant by "quasi-judicial". We all know what are judicial acts; quasi-judicial acts are not always easy to define. I posit that both judicial and quasi-judicial acts involve the making of decisions. A judicial act involves making a decision based on proven facts and applying relevant legal principles; a quasi-judicial act also involves making a decision maybe based on proven or agreed facts, but applying and giving effect to administrative policy. One important element which is basic to all decision makers whether judicial or quasi-judicial is the requirement to act fairly. This view was expressed by Lord Loreburn as far back as 1911 in the case of Board of Education v. Rice[FN14] when he stated that the duty to act in good faith and listen to both sides is one lying upon every one who decides anything. Lord Denning, M.R. echoed similar sentiments in Breen (supra).

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[FN14] [1911] AC 179
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[19] I conclude that it matters very little whether the Barbados Privy Council is a quasi-judicial body. I agree with the finding of the Court of Appeal that it is a decision-making body, and not an advisory one. Were it advisory the Governor General could elect to ignore its advice, but as mentioned earlier Section 78(2) mandates him to act in accordance with its advice; further, he is an integral part of that decision-making process in that under Sections 77(1) and (2) he has the authority to summon meetings of the Council and preside at all such meetings.

[20] The character and functions of the Barbados Privy Council contrast sharply in material particulars with those of the advisory committees on the prerogative of mercy which were considered in de Freitas (supra) and in Thomas Reckley v. Minister of Public Safety and Immigration and others (No. 2)[FN15] and which emanated from the Constitutions of Trinidad & Tobago and the Bahamas respectively. Both of those committees were advisory in that it was expressly provided in the relevant sections of both Constitutions that the designated minister was not obliged in any case to act in accordance with advice tendered by the committees. In both instances they seem to have been based on the English common law where the granting of mercy was a royal prerogative exercised solely in the discretion of the sovereign who by constitutional convention exercised it on the advice of the Home Secretary: See de Freitas (supra). It is on this premise that Lord Diplock concluded that mercy is not the subject of legal rights. He observed that the relevant constitutional provision of Trinidad & Tobago was of the same legal nature as the royal prerogative of mercy, and was exercised by the Governor General in the name and on behalf of Her Majesty. He concluded that the Trinidad & Tobago advisory committee was a purely consultative body without any decision-making power.

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[FN15] (1996) 47 WIR 9; [1996] AC 527
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[21] Similarly in Reckley, Lord Goff of Chieveley, considered that the introduction of the advisory committee and the statutory provisions governing the exercise of its functions, reinforced Lord Diplock's analysis in de Freitas, and expressed the view in relation to the Bahamas advisory committee that "despite the obvious intention that the advisory committee shall be a group of distinguished citizens, and despite the fact that the minister is bound to consult with them in death sentence cases, he is not bound to accept their advice. This provides a strong indication of an intention to preserve the status of the minister's discretion as a purely personal discretion."

[22] The Barbados Privy Council clearly does not fall within the category of a purely consultative body; it is without doubt a decision-making one. The functions and nature of the Jamaica Privy Council were considered in Neville Lewis v. Attorney General of Jamaica and another[FN16] and the constitutional provision establishing that Privy Council mirror those of the Barbados Privy Council with a similar provision that in the exercise of the powers conferred on the Governor General he shall act on the recommendations of the Privy Council. Lord Slynn of Hadley in Lewis opined that "accordingly the decision is not a personal one but is the collective and collegiate decision of the Jamaican Privy Council over which the Governor General presides." This lends support for my view that the Barbados Privy Council is a decision-making body.

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[FN16] (2000) 57 WIR 275; 2 AC 50
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[23] One of the issues concerning reviewability of the Jamaica Privy Council in Lewis centred around defects in the procedures adopted in relation to the applicants' petitions for mercy which had resulted in a breach of the rules of fairness and of natural justice. In the instant appeal the Barbados Court of Appeal was required to decide whether the procedures adopted by the Barbados Privy Council in determining the exercise of the prerogative of mercy were fair and in conformity with the principles of natural justice. One complaint by the Respondents was that they were not afforded an opportunity to make oral representations to the Barbados Privy Council. However, this was rejected by the Court of Appeal who found that the Respondents were not entitled to make oral representations, and did not avail themselves of the opportunity to make written representations. In this regard the Court of Appeal found that there was no procedural impropriety committed by the Barbados Privy Council.

[24] However, there is one troubling aspect of the conduct of the Barbados Privy Council in relation to the reading of the second warrant for the Respondents' execution. The record at paragraph [6] indicates that on 6th and 16th April, 2002 both Respondents were invited to submit written representations after the appeals to the Court of Appeal were dismissed, and a meeting of the Barbados Privy Council was fixed for the purpose of advising the Governor General as to the exercise of his powers under Section 78 of the Constitution which may have resulted in a warrant for their execution being read. It is admitted by the Respondents that they made no written representations to the Council. The record at paragraph [7] further indicates that the Respondents were informed that the Council would be meeting on 24th June, 2002, to advise the Governor General as to the exercise of the prerogative of mercy. No representations having been submitted by the Respondents, the Privy Council advised the Governor General against commuting the sentences, and death warrants were read to them. On 27th June, 2002 the executions were stayed by an order of court.

[25] On 13th September, 2004 after the Respondents' appeals to the Judicial Committee of the Privy Council were dismissed, following a lapse of over two years, the record indicates at paragraph [10] that the Barbados Privy Council met to consider the Order in Council of the Judicial Committee of the Privy Council, and advised the Governor General that a date for execution should be fixed. The Respondents were not informed of this meeting nor were they requested to make written representations. Due to the fact that over two years had elapsed since the first date of execution was fixed the question arises as to whether the Respondents ought not to have been invited to make written representations. They may have had a change of heart about insisting on oral representations or circumstances may have arisen during the interval of time which may have influenced the Barbados Privy Council to advise the Governor General to exercise his powers favourably on their behalf.

[26] Sub-sections (5) and (6) which were added to Section 78 by virtue of the Constitution (Amendment) Act, 2002 came into effect on 5th September, 2002. Other sections were also amended under the Act, to wit, Section 15 of the Constitution. In relation to this Section by virtue of Section 5 of the amending Act it was specifically stated that the amendment made to Section 15 "does not apply in relation to a person on whom the sentence of death was pronounced before the coming into operation of this Act." The amendment in relation to Section 15 therefore did not apply to any person sentenced to death before 5th September, 2002, the date when the amendment came into effect. This section having been excluded (expressio unius exclusio alterius) I posit the view that Sub¬sections (5) and (6) would apply to any condemned person awaiting the exercise of the powers of the Governor General or the Barbados Privy Council under Section 78 regardless of the date of sentence, in the absence of any provision excluding its application to persons sentenced to death prior to the commencement of the amending Act. The cases of In re a Solicitor's Clerk[FN17], La Maachia v. Minister for Primary Industry[FN18] and Brosseau v. Alberta Securities Commission[FN19] are supportive of such a statutory interpretation.

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[FN1] [1953] WLR 1219
[FN2] [1986] 72 ALR 23
[FN19] [1989] 57 DLR (4th) 458
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[27] The Respondents were accordingly given a constitutional right under Sub-section (5) to submit written representations to the Governor General or the Council before a death warrant was read. The Court of Appeal seems to have shared this view when they reasoned at page 267 of the record that "whereas the applicants were invited in April 2002 to submit representations in writing for the exercise of mercy, after 5 September, 2002, they were given a specific constitutional right to submit written representations".

[28] In my view the Respondents ought to have been informed that the Council was meeting for a second time. A sentence of death stands in a different category from any other sentence. A condemned man fights for his life until all hope is exhausted, hence he is entitled to explore all possible avenues available to him. One would expect that if a warrant for his execution is to be issued those responsible for authorising it to be issued ought to inform him of the date when this is proposed to be done and give him an opportunity to make written representations as he is entitled to do. In somewhat similar circumstances the learned Chief Justice of Belize in Lauriano v. Attorney General and Another[FN20] held that in order that the principles of natural justice be observed, a person sentenced to death was to be notified of the sitting of the council to consider his case; to be notified of his right to make representation in writing at its sitting, and to have disclosed to him where "other information derived from elsewhere" was supplied by the Attorney General and which was to be taken into consideration by the council at its meeting. That case was ultimately heard by the Court of Appeal of Belize on other grounds, but there was no appeal on the learned Chief Justice's finding in relation to this aspect of the case.

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[FN20] (1995) 47 WIR 74; [1996] 2 LRC 96
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[29] There is no evidence on record that the Respondents were informed of this second meeting of the Council after their appeals to the Judicial Committee of the Privy Council were dismissed. In this regard the Barbados Privy Council acted without procedural propriety thereby rendering its decision subject to being set aside as an infringement of the rights of the Respondents to the protection of the law. As was stated by Fitzpatrick, J.A. in Yassin & Thomas v. Attorney General of Guyana[FN21] "justiciability concerning the exercise of the prerogative of mercy applies not to the decision itself but to the manner in which it is reached." If the process is flawed the decision is tainted, and must be set aside by the Court.

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[FN21] (1996) 62 WIR 98
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[30] The whole concept of mercy is complex depending as it does on the exercise of a discretion inherent in some person or authority designated to dispense it. It appeals to instinctive values of conscience and fair play even in societies within the Caribbean where the incidence of criminal activity is beyond acceptable limits. In carrying out their mandates statutory mercy tribunals are expected to facilitate the process by procedures that are fair in all respects both to the public at large as well as the condemned person.

[31] Lord Mustill in Regina v Secretary of State for the Home Department, Ex parte Doody[FN22] at page 560 summarised the principles of acting fairly in administrative matters in this way:

"(1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result, or after it is taken, with a view to producing its modification, or both."

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[FN22] [1994] 1 AC 531
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[32] The sixth principle is not relevant to the present situation, and need not be mentioned. The Constitution conferred on the Governor General and the Barbados Privy Council the power, inter alia, to grant a pardon to convicted persons, and it is presumed that these powers will be exercised in a fair manner. In the instant case the Respondents who were convicted and sentenced to death had all of their appeals dismissed, and so as a last resort may have cherished the hope of a favourable exercise in their favour of the powers of commutation of the sentence of death by the Governor General and the Barbados Privy Council. The exercise of such a power is exceptional and unique involving as it does a decision on the termination of life, and in this context there should be a scrupulous regard for fairness. In light of the principles of fairness enumerated by Lord Mustill in Doody I reiterate that fairness required that the Respondents be given an opportunity to make written representations to the Barbados Privy Council as was their right so to do, and having regard to the particular circumstances of a lapse of two years since the first warrant for their executions was read. I uphold the findings of the Court of Appeal at paragraph [70] of the judgment that the death warrants were improperly read to the Respondents both in 2002 and 2004 at times when they had not exhausted both their domestic and other remedies, and it was manifestly unfair being a denial of natural justice.

[33] However, a finding that the Barbados Privy Council acted with procedural impropriety will have no impact on the final outcome of this appeal in light of the fact that the Court of Appeal commuted the sentences of death imposed on the Respondents. One of the factors which influenced their decision to do so pertained to the same issue which I have raised, that is, that within an interval of two years the Respondents had two death warrants read to them, and it would be undesirable to expose them to a third reading and the likelihood of further court proceedings. They also noted the Barbados Government's failure to provide a report in compliance with an Order of the Inter-American Court on Human Rights dated 17th September, 2004, and expressed the view that in the circumstances it was "highly unlikely that a report would be forthcoming within the time frame of Pratt and Morgan."[FN23]

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[FN23] Pratt and Morgan v. The Attorney General of Jamaica (1993) 43 WIR 340; [1994] 2 AC 1
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[34] This leads me to make a short comment and to echo the views expressed by the learned President and Saunders, J in their judgment on the case of Pratt where due to the peculiar circumstances of that case, involving as it did a delay of approximately 14 years from conviction, the Judicial Committee of the Privy Council saw it appropriate to issue guidelines to the Governor General and the Jamaica Privy Council in circumstances where execution is to take place more than five years after sentence. The advice tendered by the Board was that the Governor General should refer all such cases to the Jamaica Privy Council who should recommend commutation to life imprisonment, thereby achieving substantial justice, and avoiding a flood of applications to the Supreme Court for constitutional relief. The reason for this was the conclusion of their Lordships that in any such case there will be strong grounds for believing that the delay is such as to constitute "inhuman or degrading punishment or other treatment."

[35] The impact of this advice reverberated throughout the Caribbean jurisdictions for which the Judicial Committee of the Privy Council was and still is the final appellate court. Several prisoners who were on death row for more than five years found themselves beneficiaries of commutation of sentences. Although the advice of the Judicial Committee of the Privy Council was intended to be guidance for constitutionally mandated committees exercising the prerogative of mercy in relation to persons under sentences of death, it resulted in some instances in renewed efforts being made to expedite trials and hearings of appeals at the domestic level. Undoubtedly in some jurisdictions delays had reached unacceptable levels, and in order to avoid a plethora of constitutional motions alleging inhuman or degrading punishment the process from conviction and sentence to completion of appeals had to be expedited. Of course, the guidelines and suggested time limits of Pratt are not immutable or carved in stone, even though most jurisdictions for which the Judicial Committee of the Privy Council is the final appellate court seem to regard them as such; they must be viewed in light of the extraordinary circumstances of that case.

[36] However I endorse the guidance and suggested time limits of Pratt, and commend them to the other jurisdiction of which this Court is currently the final appellate court. Delays which reach unacceptable levels can deny a condemned person the constitutional protection of the law which is the Gibraltarian rock on which every judicial system is built, and in which confidence of the public resides. This must not be confined only to the post-conviction stage of trials, but efforts must be made to expedite the pre-conviction process which in most constitutions guarantees to an accused person protection of the law.

[37] I agree with the learned President and Saunders, J that the Court of Appeal adopted the correct course in commuting the death sentences of the Respondents.

[38] As mentioned at the commencement of this judgment, I concur in the conclusions arrived at in the judgment of the learned President and Saunders, J in respect of the other issues which fell to be determined in this appeal, and I agree that the appeal be dismissed with costs to each of the Respondents certified fit for two Counsel.

/s/ D.P. Bernard
D. P. Bernard


JUDGMENT OF THE HONOURABLE MR. JUSTICE WIT

[1] On February 2, 2001 two citizens of Barbados, Jeffrey Joseph and Lennox Boyce, the respondents in this appeal, were convicted of murder and subsequently sentenced to death. Their appeals against conviction were dismissed by the Court of Appeal on March 27, 2002.

[2] The laws of Barbados make it abundantly clear that there can be only one sentence for murder: death by hanging. The courts do not have any discretion at the sentencing stage. Their hands are tied. Usually, when someone is sentenced and all relevant appeals have been exhausted, the sentence can and should be executed forthwith. Generally, an execution of a non-capital sentence will not be stayed when the convicted person seeks the benevolence of mercy. This is, however, significantly different in case of a death sentence, the only penalty where execution of the sentence comes down to execution of the person sentenced. In such a case, therefore, the Constitution of Barbados (section 78) dictates that prior to any possible execution the case has to be referred to the Barbados Privy Council (BPC). That august body, usually presided over by the Governor-General himself (or herself, as the case may be), will have to decide whether "mercy" should be bestowed upon the condemned man or not. In other words, they decide whether the sentence of death, although legally imposed and in an abstract way "just", should or should not be executed. Only if and when it is decided that the execution must take place, can death warrants be issued. If that decision is properly made and carried out, then can the hanging take place.

[3] In the case before us the BPC twice decided (in the constitutionally prescribed form of a binding advice to the Governor-General) that Boyce and Joseph must be hanged. We do not know how they came to that decision nor do we know what kind of information they had at that point in time. However, we do know the relevant facts of this case, and those facts are clear from the record before us. On April 10, 1999, four young men beat up a fifth in such a brutal way that he died some days later. All four were arrested and prosecuted. All four were charged with murder. All four were, nevertheless, offered by the Crown to be tried for the lesser crime of manslaughter in exchange for a guilty plea. Two of the four, one of them being the person who actually seemed to be at the root of the problem with the victim and who involved the other three, chose this avenue.

[4] Although manslaughter carries a maximum sentence of life imprisonment, the two who pleaded guilty to that charge were each sentenced to twelve (12) years. The other two, the respondents, opted to be tried on a charge of murder on the basis of a not guilty plea. They came to regret that. They were convicted for murder and subsequently, one could say automatically, sentenced to death. There are no facts to suggest that the involvement of the respondents in the crime was more serious than that of the other two. Joseph did have a criminal record but an unimpressive one. Boyce had no criminal record whatsoever. Reports by the prison authorities on their behaviour were in neither case unfavourable. The only relevant difference between the respondents and their fellow accused seems to be that the latter spared the Crown the time and costs of a trial.

[5] Taking these facts at face value, it would not have surprised me if it had been argued that no reasonable person in Barbados would claim that this is one of those cases that clearly demanded the execution of the death penalty or that the respondents were persons who must be hanged "though the heavens fall". Even given the right of the people of Barbados to have the death penalty on their law books, a right both recognised by the Barbados Constitution and by international law, the reality is that the authority to execute such a sentence has been, and probably will be, used only sparingly. The legal system of Barbados has a built-in flexibility as to the execution of death sentences. Executions are never automatic. That means that choices have to be made. It goes without saying that these choices, which are in fact decisions on life or death, are extremely difficult and dramatic. But they have to be made and those who have to make them are charged with a grave responsibility. It follows that these decisions, like all decisions in the public domain, will have to be rational. Decisions on who will be hanged and who will be spared are, of course, no longer a matter of turning the imperial thumb up or down, whether divinely inspired or not. In 21st century Barbados, these are policy decisions as to how to individualise the impersonal reflection of abstract justice. They should therefore not only be rational but also unequivocally reflect that rationality. Although one cannot ignore the fact that the BPC has a very broad discretion as to the exercise of mercy, in the present case, however, the decision to have these death sentences executed leaves the objective observer somewhat bewildered as the Crown apparently seeks to take the lives they initially wanted to spare; seemingly for the reason that the condemned men could have spared the Crown the time and costs of a trial. That might very well be a proper reason for a difference in sentencing, but a difference between twelve years and death for that "circumstance" seems clearly disproportionate and utterly unreasonable (or, in the sometimes obscure vernacular of English law, Wednesbury unreasonable).

[6] Instead of approaching the case in this straightforward way, the respondents took a roundabout route. They submitted that the BPC had treated them unfairly and in breach of the principles of natural justice. In other words, they did not attack the rationality of the decision of the BPC in advising the Governor-General against commutation of their death sentences, but they attacked the procedure that was followed by the BPC in reaching that decision. They argued that the unfairness of this procedure was such that it amounted to a serious violation of their fundamental right to the protection of the law as laid down in section 11(c) of the Constitution of Barbados. They were therefore, so it was argued, entitled to a remedy provided in section 24 of that Constitution, notwithstanding the fact that this provision can only be invoked if "any of the provisions of sections 12 to 23 has been, is being or is likely to be contravened." Apart from that, it was argued that so much time had gone by since the day they had been sentenced to death that, by now, the execution of that sentence would be "inhuman or degrading" and thus in contravention of section 15 of the Constitution, a provision clearly covered by section 24 of the Constitution. It was further argued that in the circumstances of this case, commutation of the death penalty was the proper thing to do. In terms of case law, the Courts below were asked to follow the ruling of the Judicial Committee of the Privy Council (JCPC) in the Jamaican case of Neville Lewis and others v Attorney-General[FN1] as this was, so the Courts were told, binding precedent.

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[FN1] (2000) 57 WIR 275
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[7] What was it that the BPC had done wrong? According to the respondents, the BPC had twice unnecessarily and unduly triggered the issuance of their death warrants, the first time in June 2002, after the Court of Appeal had dismissed their appeals on March 27, 2002 and the second time in September 2004, after the JCPC, the then court of final appeal for Barbados, had dismissed their appeals against the mandatory character of their death sentences. On the first occasion the BPC had informed the attorneys of both respondents that the BPC would meet on June 24, 2002 to advise the Governor-General as to the exercise of the "prerogative of mercy", despite the fact that these attorneys had already informed the BPC that they had in fact petitioned the JCPC applying for special leave to appeal the decision of the Court of Appeal (which leave was subsequently obtained). On the second occasion the BPC had, without further ado, again advised the Governor-General that a date for execution should be fixed, even though the BPC was formally informed by the attorneys of the respondents that a complaint had been filed with the Inter-American Commission on Human Rights (IACHR). The respondents forcefully argued that the BPC should have awaited the results of this international law procedure as this outcome, whether in the form of a recommendation of the Commission or, ultimately, of a judgment of the Inter-American Court of Human Rights, should in good faith be considered before a decision could be reached on the granting or denying of mercy.

[8] The Court of Appeal agreed with the respondents. It appears to me that they decided (1) that Lewis was binding precedent, and that, following Lewis, the conclusion must be (2) that the BPC should have awaited the outcome of the procedure before the IACHR before deciding on the mercy issue, (3) that the refusal of the BPC to do so amounted to a violation of the fundamental right of "protection of the law" which was said to be in effect the same as an entitlement to "due process of law" and that the violation of this right, although not in so many words mentioned in sections 12 to 23 of the Constitution of Barbados, was indeed covered by section 24 of that Constitution so that a remedy under this provision would be available, (4) that, considering the fact that already four years and four months had gone by after the respondents had been sentenced and that in the circumstances it was highly unlikely that a report from the IACHR would be forthcoming within the five year time frame laid down in the case of Pratt and Morgan v Attorney-General of Jamaica[FN2], a violation of section 15 of the Constitution was imminent and that this also called for a section 24 remedy, and (5) that the only relief that could properly be given would be the commutation of the imposed death sentences to sentences of life imprisonment.

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[FN2] (1993) 43 WIR 340, [1994] 2 AC 1
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[9] The Crown has launched strong objections against this decision of the Court of Appeal. In the first place, although appreciating that Lewis was and is binding precedent in Jamaica, they vehemently disagree that it was binding in Barbados. They have pointed out that under the Constitution of Jamaica the courts are not inhibited from considering "the transaction of business" of the Jamaican Privy Council (JPC), in contradistinction to Barbados where the Barbados Constitution has an "absolute" ouster clause that excludes the courts from inquiring into the question whether the BPC "has validly performed any function vested in it by this Constitution" (See: section 77(4) of the Constitution). The Crown further argued that even if it was binding in the past, Lewis is not so anymore, now the Caribbean Court of Justice has replaced the JCPC as the court of final appeal in Barbados. In the second place, they submit that Lewis cannot even be considered as persuasive authority, meaning that it cannot and should not be used as a stepping stone for the further development of the law in Barbados. In their eyes, Lewis is "bad law" because: (a) it does not appreciate the non-justiciability or non-reviewability of the "prerogative of mercy" and (b) ratified but unincorporated treaties cannot have any legal effect on domestic law. In the third place, they argue that even if there was a violation of "the right to protection of the law" or there was some form of "unfairness" in the procedure of the BPC, quod non, this could have only attracted the sanction of nullity of the decision of the BPC (based on section 1 of the Constitution) but not one of the sanctions of section 24 of the Constitution and certainly not commutation of the death sentences to life imprisonment. The respondents have, unsurprisingly, vigorously contested these submissions of the Crown.

[10] Why does the Crown so vehemently object to the Lewis decision? That is not difficult to guess. Lewis is, not wholly without reason, conceived as an ingenious device to effectively dismantle the application of the death penalty even though that sentence is still on the books. The decision is seen and felt as a jurisprudential Catch 22 from which no Caribbean State can escape as it requires them to choose between "a rock and a hard place" or "the devil and the deep blue sea." Lewis clearly comprises two unlike poles, although it is open to discussion which of those might be "the devil" and which "the deep blue sea".

[11] On the one hand Lewis holds that when the State "acceded to the American Convention and to the International Covenant [without incorporating them into domestic law] and allowed individual petitions to [the international human rights bodies], the petitioner became entitled under the protection of the law provision [as enshrined in the Constitution] to complete [that] procedure and to obtain the reports of [such] bodies for [in Barbados: the BPC] to consider before it dealt with the application for mercy and to the staying of execution until those reports had been received and considered"; that where a petition had been lodged with such a body, execution without consideration of that body's report would therefore be unlawful.[FN3]

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[FN3] Supra at p 303
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[12] On the other hand, Lewis, being the result of a petrifaction process that can be traced back as early as Bradshaw v Attorney-General of Barbados[FN4], applied a version of Pratt and Morgan that reduced the latter to its formal fabric. Although the JCPC in Pratt had said that they "did not purport to set down any rigid timetable", that is exactly what they did in Lewis. Their Lordships had said in Pratt that when "execution has to take place more then five years after sentence there will be strong grounds for believing that the delay is such as to constitute 'inhuman or degrading punishment or other treatment'." Thus the five year period merely ushered in a rebuttable presumption. However, in Lewis which actually combined six similar cases they did nothing more than simply establish the fact that in four of the six cases "the period of five years referred to in Pratt has already elapsed" and that in the two other cases "it is inevitable that, by the time the appellant's advisers have been able to see the material which was before the Privy Council of Jamaica and to make representations on it..., the period of five years will have elapsed", and that they were "therefore satisfied that the sentences of death should be set aside in all cases and commuted to ones of life imprisonment." Thus, in Lewis the form of Pratt got precedence over its substance.

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[FN4] (1995) 46 WIR 62
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[13] What is the substance of Pratt? It would seem to me that it is this: "a State that wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve. It is part of the human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure. If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to be attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it." And: "Their Lordships are very conscious that the ... government faces great difficulties with a disturbing murder rate and limited financial resources at their disposal to administer the legal system. Nevertheless, if capital punishment is to be retained it must be carried out with all possible expedition." (per Lord Griffiths)[FN5]. See also Lord Goff in Guerra v Baptiste[FN6]: "problems facing the judicial system ... cannot be allowed to excuse long delays." In the latter case "the time which had elapsed between sentence of death and completion of the hearing of the Court of Appeal was four and a half years" and "the overwhelming reason for this excess was the failure to make available the judge's notes of the evidence at the trial until four years after the trial was over." On the basis of these facts the JCPC felt "bound to conclude that there has been a substantial and unjustifiable period of delay in the disposal of the appellant's appeal, a period which in all probability exceeds three years." Or, to paraphrase the European Court of Human Rights, it is for the State to organise their domestic legal system in such a way that it can effectively ensure the right of every person charged with a criminal offence to be tried without undue delay or within a reasonable time.[FN7]

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[FN5] Supra at p 361
[FN6] (1995) 47 WIR 439 at p 451
[FN7] ECHR, Mansur v Turkey, 8 June 1995, Series A, No 319-B, at p. 53 [68]
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[14] "Trial" in this particular context, in my view, clearly includes the appellate procedures and even the legal processes for the consideration of reprieve, and beyond that, up to the final moment of execution itself. It would seem that the broad scope of this concept, ultimately, flows from the fundamental right which underlies all other fundamental rights, the right to human dignity and the corresponding prohibition on the negation of a person's basic humanity, even if that person is a death row prisoner. I will come back on this point later. For now, it suffices to remark that, whatever the substance of Pratt, it was that decision in its strictly formal manifestation with its narrow focus on the "five years' deadline" that constituted the law which the Court of Appeal had to, and did, apply. That part of Lewis was binding precedent when the Court of Appeal decided the instant case, whatever opinion our Court might now have on this matter. The question is then: was the other part of Lewis, which was obviously founded on the case of Thomas v Baptiste[FN8], also at that time binding for the Court of Appeal?

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[FN8] (1998) 54 WIR 387
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[15] Before dealing with this question, it seems appropriate and useful to dwell briefly on the general issues of the interpretation of written constitutions such as the Caribbean Constitutions in general and the Barbados Constitution in particular. Interestingly, these constitutions are still portrayed as being of the Westminster Model. They were, and to a certain extent still are, seen by many as a mere evolutionary, written variant of the original in the former Mother Country, be it with some additional constitutional "gadgets" (like a Supremacy Clause and a Chapter on fundamental rights and freedoms). Thus, the largely unwritten English Constitution shaped by conventions and common law seemed to have been set in ice in all its perceived magnificence and splendor. From a more cynical angle it could be, and has been, observed that the older Caribbean Constitutions contained general "savings clauses" (as they still do after decades of independence) which brought the existing (mainly English) law, perfect and pristine as it seemed, beyond the reach of judicial review, whereas newly created local legislation could always be reviewed judicially all the way up to the trusted and familiar Judicial Committee of the Privy Council manned by the British Law Lords.

[16] Unsurprisingly, the JCPC and in their footsteps the Caribbean courts themselves for many years approached these constitutions, in the words of Lord Bingham in Gairy v Attorney-General of Grenada[FN9], on the assumption "that the rights specified in the Constitution were already secured to the people and that the object of embodying them in the Constitution was to restrain future enactments which might derogate from them." Lord Bingham compared in this context Lord Diplock's "somewhat conservative approach to the substance of the law" in Jaundoo v Attorney-General of Guyana[FN10] with his "enlightened approach to the procedural implications of protecting fundamental rights" in that same case. And he concluded: "In interpreting and applying the Constitution of Grenada today, the protection of guaranteed rights is a primary objective, to which the traditional rules of the common law must so far as necessary yield. The Board cannot regard Jaundoo as an accurate statement of the modern constitutional law applicable in Grenada." In the same line is the reasoning of Lord Hoffmann in delivering the judgment of the JCPC in the recent case of State of Trinidad and Tobago v Boyce[FN11] where he held that there was a substantial difference between the "old common law rule" of "due process of law" and the "constitutional meaning" of that same concept.

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[FN9] (1999) 59 WIR 174 at p 198-199
[FN10] [1971] AC 972
[FN11] [2006] UKPC 1 [14]
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[17] Thus, an awareness that the interpretation of Caribbean Constitutions is a legal activity in its own right seems to be emerging gradually, although there is still, perhaps understandably, an inclination to take the (English) common law as a point of departure. One would hope, as I envisage, that these flashes of enlightenment will be taken to their ultimate conclusion, so that a genuine constitutional law will be developed on the basis of the Caribbean Constitutions themselves as the embodiments of the democratic societies they endeavour to establish and guard. That does not mean that the common law has no role to play in construing these constitutions. The historical and systematic ties between the legal systems of the Caribbean and that of their former colonial master are still manifest and multiple. But the common law focused as it is on the unwritten Constitution of the United Kingdom cannot be the centerpiece of Caribbean constitutional law as these constitutions, contrary to what was thought for so long and despite the many similarities at the outset of their governmental systems, are fundamentally different. This is so because of the very fact that they are written and because of the fact that the people themselves, and therefore their constitutions, are deemed to be sovereign and supreme. Further, the legislatures under the Caribbean Constitutions, although extremely important, cannot, as Parliament can in the United Kingdom, claim superiority over the other two branches of government. Caribbean parliaments are not at liberty to legislate whatever or however they see fit without having regard to the limits enshrined in the constitutions which ultimately have to be construed, and guarded, by the Judiciary.

[18] I now turn to the Barbados Constitution. This founding document clearly embodies and constitutes a constitutional democracy. Although this Constitution is largely concerned with seemingly formal and institutional issues, it is undoubtedly a qualitative and normative document. This is not only clear from the content of Chapter III on the protection of fundamental rights and freedoms of the individual, but also from the Preamble in which the people of Barbados, amongst other things, proudly "proclaim that they are a sovereign nation founded upon principles that acknowledge the supremacy of God, the dignity of the human person, their unshakeable faith in fundamental human rights and freedoms" and "affirm their belief that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law." It is in this light that the Barbados Constitution as a whole has to be understood and interpreted as these words fill the Constitution with meaning reflecting the very essence, values and logic of constitutional democracies in general and that of Barbados in particular.

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[FN12] See about interpretation of constitutions in general: Aharon Barak, The judge in a Democracy (2006), p 127-135
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[19] These normative parts of the Constitution breathe, as it were, life into the clay of the more formal provisions in that document. Thus, the fact that the three branches of government are formally dealt with in separate Chapters and the fact that the Chapter on the Judiciary contains strong procedural safeguards against undue influence from the political branches, all taken together with the Supremacy Clause in section 1, establish in the light of the solemn affirmation of the rule of law the substantive concept of the separation of powers, which is considered to be the backbone of any constitutional democracy[FN13]. Some aspects of this principle as a Caribbean constitutional principle had already been acknowledged in 1977 by Lord Diplock in the well-known case of Hinds v The Queen[FN14], although that result was reached through his "somewhat conservative approach" of assuming that the principle was a feature of the original Westminster Constitution and that the constitution at hand was basically modeled after that original.

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[FN13] Op cit, Barak, at p 35
[FN14] (1975) 24 WIR 326
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[20] The multi-layered concept of the rule of law establishes, first and foremost, that no person, not even the Queen or her Governor-General, is above the law. It further imbues the Constitution with other fundamental requirements such as rationality, reasonableness, fundamental fairness and the duty and ability to refrain from and effectively protect against abuse and arbitrary exercise of power. It is clear that this concept of the rule of law is closely linked to, and broadly embraces, concepts like the principles of natural justice, procedural and substantive "due process of law" and its corollary, the protection of the law. It is obvious that the law cannot rule if it cannot protect. The right to protection of the law requires therefore not only law of sufficient quality, affording adequate safeguards against irrationality, unreasonableness, fundamental unfairness or arbitrary exercise of power. It also requires the availability of effective remedies. These requirements are inherent in the Barbados Constitution. Section 24 which expressly guarantees the right to an effective remedy is, therefore, merely a reflection of that fundamental right to the protection of the law. Hence, the existence of that section, cannot, without more, be construed in a manner so as to limit that right or to frustrate the granting of an effective remedy for a breach of the Constitution.

[21] These are the principles that I think should guide us in the determination of the remaining issues which I now turn to. The first question which has to be answered is whether the exercise of mercy by the BPC is an area which by its nature is unsuited for any form of adjudication, and, if it can be reviewed as such by the courts, whether the ouster clause of section 77 (4) of the Barbados Constitution has the effect of declaring the exercise of the prerogative of mercy non-justiciable or non-reviewable. It is clear that the BPC are part, although being a special branch, of the Executive. It is also clear that the BPC are not above the law. The BPC discharge their functions under the Constitution and therefore they cannot, however eminent the members of that body may be, go unchecked by the courts. But at the same time the courts have to respect the scope of the discretion afforded to the BPC in the exercise of mercy. Both the executive acceptance of judicial scrutiny and judicial respect for executive discretion are required under the rule of law and flow from the separation of powers.[FN15] Generally speaking, depending on the subject-matter of the executive power, discretion may vary from the very narrow to the extremely broad. In the case of the latter the exercise of the discretion, whether called "prerogative" or by any other name, might be so deep in the realm of being "political" and so far removed from any legal frame-work that the courts will be strongly inclined to deem the discretion exercisable in this sphere as being non-justiciable or non-reviewable, meaning that the matter can or should not be adjudicated. This is usually so in cases of war and peace and foreign affairs in general.

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[FN15] See, also, Barak, oc, at p.39
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[22] In the area of decision making on mercy one has to distinguish between those regimes where the sentencing process was part of the judicial process as a whole, including the appellate phase, with full judicial discretion as to the mode and severity of sentence and those where the hands of the courts were tied to such extent that no discretion whatsoever was afforded to them in meting out sentence. One should also distinguish between death penalty cases and other cases, given the severity, finality and irrevocability of the execution of the former. It follows then that the discretion as to the exercise of mercy in a mandatory death penalty regime would be much narrower than in cases where the courts have full discretion to tailor the punishment to fit the crime. However broad the discretion in the exercise of mercy might be though, it is my view that the BPC can never be discharged of their constitutional duty to be rational, reasonable or fair and to eschew improper procedures. The broader the discretion the less chance there is that the courts, bound as they are to respect the scope of that discretion, will reach the conclusion that the decision is irrational or utterly unreasonable, but that chance is never zero. Procedural impropriety is, of course, easier to detect, and an intervention by the courts on this ground will therefore be seen to occur more regularly.

[23] As every person and institution in Barbados functions under the Barbados Constitution, being the supreme law of the land, and as therefore all are duty bound to act rationally, reasonably and fairly and all, including the courts themselves, have to bear the weight of judicial scrutiny, ouster clauses seeking to relieve that onus must of necessity be construed as narrowly and restrictively as possible. This is mutatis mutandis the case with the ouster clause of section 77(4) of the Barbados Constitution which apparently seeks to shield the BPC from judicial review that might be deemed inappropriate or unnecessary. But in my view this clause does not relieve the BPC from their constitutional duty of rational and reasonable decision making nor does it mean that they could freely ignore the law. And it goes without saying that the ouster clause does not imply that the BPC would be free to indulge in procedural impropriety. The clause does mean that the confidentiality of their deliberations must and will be protected, save, perhaps, in exceptional circumstances where the interests of justice so compellingly require. It follows, then, that the ouster clause does not preclude the courts from having a look at the proceedings of the BPC or from adjudicating certain aspects of those proceedings and their outcome. And so, in my opinion the very existence of this ouster clause can have no relevant negative effect as to the question whether Lewis was applicable in Barbados. Neither the prerogative character of the exercise of mercy nor the ouster clause prohibited the application of Lewis in Barbados. On the contrary, the Court of Appeal was bound to consider the aspect of Lewis that upheld Thomas v. Baptiste as binding and likewise the aspect of Pratt that Lewis reinforced. The Court of Appeal simply had to follow the Lewis decision in its entirety, and they did.

[24] As Lewis reflected the law of Barbados as it then stood, the Court of Appeal rightly concluded that the BPC should have deferred arriving at its decision until the Inter-American Human Rights System had run its course and the results produced by that system were in hand and considered. The Court below also rightly concluded that these results would not have been received within the five year time-frame. It is a matter of record that these results were still not in at the time we heard this appeal. This brings us to the question as to what remedy was available and appropriate in this case. The Court of Appeal came to the conclusion that the BPC's violation of the principles of natural justice in this respect justified a stay of execution, and they reasoned, in conformity with Lewis and quite logically, that this stay would inevitably lead to a transgression of the five year time limit, which in turn would trigger the remedy of commutation. The Crown, on the other hand, insisted that violations of sections 11(c) and 77 or 78 of the Barbados Constitution could only attract the sanction of nullity as section 24 of the Constitution cannot be resorted to for a breach of section 11 (c).

[25] Quite apart from Lewis, in my view the reasoning of the Crown on this point cannot be followed. Besides the fact that the Barbados Constitution inherently requires the courts to give effective protection against violations of its provisions, the procedural violations of the BPC amounted to a violation of section 12 of the Barbados Constitution. This provision holds that "no person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of Barbados of which he has been convicted." As we have seen earlier, the Barbados Constitution has to be understood as a normative document, which means that the words "save in execution of" must be read as "save in due execution of". Reading this provision in an anormative or strictly literal way would imply that it is not constitutionally prohibited to deprive someone of his life by executing him in contravention of the law or fundamental principles of law. It would mean, for example, that hanging a condemned man pending an appeal, although unlawful, would not be unconstitutional as the man's life was taken "in execution of the sentence of a court, etc." In fact, this was exactly what the BPC ostensibly sought to do when in June 2002, knowing that an application for special leave was pending, they advised against mercy for the respondents, a point to which I shall return.

[26] In conclusion, in my judgment the decision of the Court of Appeal was in accordance with the law as it then stood. Of course, that does not necessarily mean that the decision as such is correct. As indicated above, one can, looking back at how the relevant jurisprudence has developed, be critical of the way in which the JCPC decisively resorted to the barren form of Pratt. They unfortunately did so to the detriment of the well-reasoned and important substance of that decision. Thus, their Lordships austerely turned Pratt into a legalistic pillar of procedural salt with solemnly engraved time-limits of tabulated rigidity. Accordingly, the Pratt deadline, being made inflexible, emerged in Lewis as a virtually indefeasible lifeline. The Court of Appeal had to follow, and correctly followed Lewis, but our task as a new court of final appeal is quite different from theirs. We should only follow those earlier decisions if we find them persuasive. Put differently, we are not to follow but to lead. It should be clear, however, that even if we concluded that Lewis was completely wrong and that, accordingly, the Court of Appeal should have come to a decision other than one leading to commutation of the death sentences of the respondents, our decision could not have the effect of putting the men back on death row. It is a clear legal principle that no change in the law, whether by means of legislation or by means of judicial interpretation overturning precedent, detrimental to the condemned men should affect them negatively[FN16]. That would be unfair, uncalled for and inhuman. I take it that for that very reason the Crown conceded that they were no longer seeking the execution of the death sentences in this case. However, it is still our duty to give our views on, what I summarised as, the Thomas v. Baptiste aspect of Lewis. The question to be answered here is: how, if at all, may ratified but unincorporated international human rights treaties which give a right of access to international tribunals affect the rights and status of a person convicted of murder and sentenced to the mandatory punishment of death by hanging.

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[FN16] See, eg, Roodal v State of Trinidad and Tobago (2003) 64 WIR 270 and Matthew v State of Trinidad and Tobago (2004) 64 WIR 412
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[27] The State of Barbados has signed and ratified the American Convention on Human Rights, although it has never incorporated it into its domestic law. This Treaty provides for the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. Barbados has accepted the jurisdiction of that Court. Article 44 of the Convention gives "any person or group of persons, or any nongovernmental entity legally recognised in one or more member states of the Organization [of American States]" the right to "lodge petitions with the Commission containing denunciations or complaints of violation of this Convention by a State Party." Any such petition must be processed by the Commission, which has to decide whether the petition is admissible. If it is and no "friendly settlement" can be reached between the parties, the Commission must draw up a report in which "it may make such proposals and recommendations as it sees fit." The report should then be transmitted to the State concerned. Within three months after that transmittal the matter should either be settled or be referred to the Inter-American Court. If this does not happen, the Commission may decide to pursue the matter further by making "pertinent recommendations" and prescribing "a period in which the state is to take the measures that are incumbent upon it to remedy the situation examined." If the Commission is of the opinion that the measures taken by the State were not adequate, it can decide to publish the report.[FN17]

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[FN17] American Convention on Human Rights, articles 46-51
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[28] On close scrutiny, it is clear that the right to petition the Inter-American Commission exists whether or not it is authorised or implemented by national legislation. Any person in Barbados, or elsewhere, who wants to lodge a petition, can do so. The State cannot prevent anyone from initiating these proceedings. And once the petition has been received by the Commission, a legal procedure is set in motion which will run its own course and lead to a legal conclusion of some sort, irrespective of whatever domestic legislation might be in place in the State whose national filed the petition. Accordingly, the absence of domestic legislation normally does not pose a problem. However, if the State were to act in such a manner as to render the international procedure illusory, as for example where the petitioner is a death row prisoner whom the State decides to hang without allowing a reasonable time for his petition before the Inter-American bodies to be concluded, problems do arise. It would seem rather obvious that the State should not act in this way. States are bound to perform the treaties which they have ratified in good faith. This obligation, it would seem to me, prohibits the State from pre-empting the outcome of pending legal processes by executive action, a general legal principle that also exists in the common law: see Thomas v Baptiste. And as the Barbados Constitution has a normative structure, this principle should obviously be regarded as equally forming part of that same constitution. One would have thought, therefore, that the resolution of this issue should be a fairly simple one, guided as it is in my view by plain common sense. But, perhaps surprisingly for those not familiar with the intricacies of legal reasoning, in the Halls of Justice throughout the Commonwealth the issue has been perceived as being anything but simple.

[29] As constitutional doctrine has it, ratified treaties are, indeed, binding upon the State on the international plane but they can only be binding on the domestic plane after they have been incorporated, or enacted, by the Legislature. Unincorporated treaties are said to be incapable of effectively conferring rights on the citizens of the State, even though the executive branch of the State has ratified those treaties and, by doing so, has solemnly affirmed the granting of these rights. Most treaties do not need to be enacted at all as they concern relationships among States themselves. But some treaties, notably human rights treaties, appear to be mainly concerned with the relationship between the State and the individuals within its jurisdiction. In terms of the constitutional doctrine, however, these treaties merely purport to confer rights on citizens. Or sometimes it is said that these treaties do confer rights on individuals but that these rights are not enforceable under domestic law. What strikes me, as one hailing from a monist legal tradition, is that for more than a century this doctrine has been staunchly defended and upheld by appellate courts with an apparently burning passion. It appears, in a sense, that the doctrine has obtained a status comparable to that of religious dogma. Any attempt to subject it to sober analysis seems to be perceived and frowned upon as heretical. Even in the many instances where the courts did give, allegedly indirect, effect to unincorporated treaties, they never failed to pay reverence to and, at least formally, uphold this "firmly established", "sacred" or "hallowed" principle.

[30] Lord Millett, who had proclaimed in Thomas v. Baptiste that "[b]y ratifying a treaty which provides for individual access to an international body, the government made that process for the time being part of the domestic system and thereby temporarily at least extended the scope of the due process clause in the Constitution", went out of his way in the later case of Briggs v Baptiste[FN18] to assure the parties that his decision in Thomas "did not overturn the constitutional principle [sic] that international conventions do not alter domestic law except to the extent that they are incorporated into domestic law by legislation", although his robust but controversial words in Thomas had been introduced by a, faint, disclaimer: "The applicants are not seeking to enforce the terms of an unincorporated treaty, but a provision of the domestic law of Trinidad and Tobago contained in the Constitution." Another intriguing example of religious adherence to the doctrine can be found in Lord Hoffmann's philippic in Higgs v Minister of National Security[FN19] where, after tracing the origins of the doctrine all the way back to "the great principle which was settled by the Civil War and the Glorious Revolution in the 17th century", he equated "an international court" created "by the Crown in conjunction with other sovereign states" with England's infamous "Star Chamber", adding that the objection to both such "prerogative courts" should be "equally strong".

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[FN18] (1999) 55 WIR 460
[FN19] (1999) 55 WIR 10
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[31] The bedrock of this judge-made doctrine, when looked at carefully, seems rather ambiguous. In the many cases that deal with this subject several approaches can be found. Very often one finds that more than one concept has been used in one and the same judgment without much clarity as to their logical structure. Sometimes it is said that the doctrine is founded on the fact that treaties do not form part of our domestic law and hence form no part of our domestic legal system. On occasions one is made to understand that, as far as individuals are concerned, treaty law is res inter alios acta (a thing done between others) which is by its nature incapable of affecting them either positively or negatively, making it irrelevant as a source of rights and obligations. A third concept points to the fact that treaties are made in the conduct of foreign relations which are a prerogative of the Crown., and as that activity is said to be non-justiciable, the domestic courts have no jurisdiction to construe or apply such instruments. A fourth underpinning of the doctrine has been found in the principle of separation of powers. This principle has it that under the Constitution the Crown, or rather the Executive, has an unrestricted power to make, enter into, ratify and withdraw from treaties, whereas only the democratically elected Legislature can make and unmake laws.

[32] Intriguingly, the courts, although never having relinquished their reverence for the doctrine that unincorporated treaties "cannot create rights", gradually devised methods to escape the dire consequences of rigid orthodoxy. These methods invariably led them to accept concepts that, on closer look, seem to be at variance with the official doctrine. In this context it has since long been accepted by the courts that it should be presumed that Parliament intends to legislate in conformity with the international obligations of the State, unless it was clear that there was not such an intention. Accordingly, domestic statute law found to be ambiguous or unclear should be construed in conformity with the State's international obligations. This rather technical approach developed into the "well established principle that the Courts will [in case of ambiguous legislation] so far as possible construe domestic law so as to avoid creating a breach of the State's international obligations", a development that transformed a judicial fiction into a judicial obligation. This became even clearer when the courts commenced embracing the proposition "that the principle requires one to construe the constitution and other contemporary legislation in the light of treaties which the governments afterwards concluded." (see Boyce and Joseph v the Queen[FN20], per Lord Hoffmann). It is obvious that with this last development the courts have left the solid ground of legislative construction. What is more, it comes close to the very negation of the sacred premise that unincorporated treaties can have no legal effect on the domestic plane.

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[FN20] (2004) 64 WIR 37, [2005] 1 AC 400
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[33] Another convenience used by the courts has been the doctrine of legitimate expectation as it was formulated in the Australian case of Minister for Immigration and Ethnic Affairs v Teoh[FN21]. In this case the legitimate expectation, which has its origins in administrative law, was elevated to the level of constitutional law. In Teoh the Australian High Court considered the ratification by a State of, at least, human rights treaties as "a positive statement by the Executive government ... to the world and to the ... people that the Executive government and its agencies will act in accordance with the [treaty]."[FN22] And the Court added: "That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the [treaty]." What makes this approach rather remarkable, in my view, is the point that it is apparently not deemed necessary that the person seeking to rely on the legitimate expectation actually entertains the expectation. As long as the non-existent expectation "is reasonable in the sense that there are adequate materials to support it", "it" will be honoured. The strength of this construction seems to be then, that, de jure, the doctrine of unincorporated treaties is followed and upheld, as legitimate expectations can become relevant only where no legal rights exist, whereas, de facto, it provides the citizens with the protection of these rights, be it in a limited way. The weakness of this construction is of course that it is highly artificial and that it might easily be made ineffective by the Executive. From a pragmatic point of view, the "teoh-logical" approach might, for the time being, be useful. Dogmatically, however, I am afraid it will, in due time, prove to be untenable.

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[FN21] [1995] 3 LRC 1
[FN22] Ibid at p 17
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[34] Unsurprisingly, the courts have always rejected the view that by using these routes they had been partaking of forbidden fruits. But in 1999, in a lecture titled The Way We Live Now: Human Rights in the New Millennium, Lord Bingham "confessed" to having committed that very sin. Speaking about the European Convention on Human Rights and the ways in which British courts endeavoured to side-step the difficulties caused by the revered doctrine of the unincorporated treaty, he said: "In these ways the Convention made a clandestine entry into the British law by the backdoor, being forbidden to enter by the front."[FN23] This is an interesting metaphor. It raises some profound questions. Who are the ones that opened the backdoor? Are those not the same courts that once closed the front door? Why the secrecy? And are courts not required to act against clandestine entry or trespassing instead of indulging in that very activity? Or have the courts just been trying to administer justice and doing the proper thing? As Lord Bingham said in his lecture: "If the United Kingdom binds itself by international treaty to guarantee these [fundamental] rights to its citizens, it makes no sense that the rights should not be enforceable in and by British courts." Is that not a simple truth capable of setting us free from doctrinal idolatry? But if that is so, why use the backdoor? Why not use the front door which we might very well find not to be locked if only we would push at it. In this respect it is difficult to resist harking back to Sir Robert Phillimore in The Parlement Belge[FN24], the authority always cited as the very first case in which it was held that the Crown is not permitted, by entering into and ratifying a treaty, to legislate without the authority of Parliament. Sir Robert had said no such thing. In that case, he said nothing more than that, by ratifying a treaty, the Crown cannot adversely affect the private rights of its subjects, which is a common sense dictum with which it is difficult to disagree. But that dictum is far more restricted than it is usually portrayed.

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[FN23] In: Ton Bingham, The Business of Judging: Selected Essays and Speeches (2006), at p 162-163.
[FN24] [1874-80] All ER Rep 104
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[35] Returning to the foundations of the doctrine of unincorporated treaties as summarised in paragraph 31, I should be rather brief as none of this has been the subject of serious argument. It seems to me that the first three grounds for the doctrine are all "begging the question" and hence are fallacious. And even if one accepts that international and domestic law as systems are unable to converge upon each other, this does not mean that no conflict of legal obligations can occur, where on the domestic plane the State or one of its branches is unable or reluctant to act in a manner required by international law, and in particular by treaty law. It does not logically follow that because negotiations as to the entering into a treaty and the possible conditions under which the same should take place are probably non-justiciable, the fruits of those activities, the concluded and ratified treaty itself, its provisions, and in particular any rights it might confer on individuals and the obligations it may impose on the State, cannot be adjudicated on the domestic plane. Suffice it to say that I strongly disagree with the view that domestic courts are in any way inhibited from construing treaties provided, of course, the treaties themselves do not prohibit such activity (as does, for example, the Revised Treaty of Chaguaramas by giving the Caribbean Court of Justice exclusive jurisdiction to interpret and apply its provisions[FN25]).

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[FN25] Article 211
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[36] The most solid ground for the doctrine of the unenforceability of unincorporated treaties is undoubtedly the principle of the separation of powers, which, unlike the doctrine itself, is by its nature a constitutional principle. This brings us back to a point I made earlier. It is clear that the doctrine of the unenforceability of unincorporated treaties was planted and nurtured in the soil and social climate of the unwritten English Constitution. It is also clear that in many respects the Caribbean Constitutions are fundamentally different from that unwritten Constitution as are the realities of the Commonwealth Caribbean compared to those of the United Kingdom. One should therefore take care not to transplant so precious a doctrine from the one to the other without regard to those differences. Unfortunately, that is exactly what has happened.

[37] What then are the relevant differences? First and foremost, in the United Kingdom Parliament is sovereign and supreme. Its powers are unlimited which may explain the monumental emphasis on the constitutional commandment: "There shall be no Lawmaker, but Parliament!' In the Caribbean, on the other hand, it is the constitution that is sovereign and supreme, which causes the Legislature to assume a somewhat more modest role and places this branch of government on the same footing as the other two. Secondly, although the Constitution of the United Kingdom has never distinguished itself by a strong separation between the executive and the legislative branch, as the members of the former are mainly recruited from the ranks of the elected members of parliament, only a limited group of MP's may, by virtue of statutory legislation[FN26], form part of the executive branch, whereas in Caribbean States usually almost all elected members of parliament of the governing party appear to be, at the same time, members of the Executive. Thirdly, in the United Kingdom time-honoured legal, conventional and organisational mechanisms are in place that promote and seem to establish thorough and serious efforts to examine and, if necessary, update existing legislation prior to the ratification of a treaty, whereas in the day to day reality of most Caribbean States such mechanisms are practically non¬existent or almost never used.

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[FN26] The House of Commons Disqualification Act 1975, section 2. See: Colin R. Munro, Studies in Constitutional Law, second edition (2005), at p 323
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[38] The doctrine of the unenforceability of unincorporated treaties, as I have made abundantly clear, is in my view an old, mouldered and creaky structure, unsuitable for Caribbean climate and soil. Consequently, it would seem to me that it should be dismantled and that a new structure should be raised on the terra firma of the Caribbean Constitutions themselves, making use of course of all those parts of the old structure that are still useful and in good shape. What domestic materials, then, do we have? At first sight, we are seemingly confronted with an insurmountable problem as almost all of the Caribbean Constitutions, the Barbados Constitution not excluded, maintain a deafening silence on the subject of treaties (Guyana, however, forms a modest exception). This is rather remarkable. Most of the newly created States in the world do have constitutions that elaborately deal with the relationship between their domestic law and international law, the treaty-making power of the State and possible democratic involvement at the ratification stage. Not so in the Commonwealth Caribbean. In their constitutions these issues are simply ignored. Quite surprisingly, notwithstanding the fact that in today's globalising world these subjects have become more important than they already were in the past, even the two recently produced drafts for a new Constitution of the modern Republic of Trinidad and Tobago are silent on them. The absence of any provision on these subjects in the constitutions is the more curious when it is realised that the independent Caribbean States have been forged, almost without exception, with the support of the same international law their constitutions so vigorously ignore, having emerged on the basis of the human right of self-determination enshrined as it was, and still is, in many important treaties and other international instruments. Thanks to international law even small States have a voice in the world of nations and thanks to international law they are not likely to be crushed easily or arbitrarily by other, bigger and more powerful, States. No sovereign State, and certainly not the small Caribbean States, thriving on tourism and international services as many of them do, can live and breathe outside the sphere of international relations and international law. So, it seems rather odd that as to these subjects our constitutions appear to be playing the ostrich. And odd it is when wandering through the provisions of the Constitutions one tends to get the impression that beyond the skies of the State no relevant law exists. So, at first blush anyway, these constitutions do not seem to give the courts much guidance. Nevertheless, it cannot be denied that there is more law between heaven and earth than we have dreamt of in our own doctrinal philosophy.

[39] All this, again, begs the question: what materials do we have and how are we going to structure them in order to create a clear, solid and genuine approach as to treaty law and its effects on our domestic law. Let me first say this. Most of what we call international law will never reach or penetrate the atmosphere of the domestic State for the simple reason that it is not meant to have any domestic effect. And the light that, figuratively speaking, emanates from those treaties creating specific obligations for States with respect to individuals within their jurisdiction, which obligations reciprocally mirror the rights conferred on these individuals, will only enter into the State's legal atmosphere if, when and to the extent that the executive branch of the State "unlocks" that treaty by signing and ratifying it. By ratifying a treaty the State gives its solemn word to the other contracting States or the international community as a whole that it will give due and proper effect to its treaty obligations. Like men and women, States must be as good as their word. They have to comply, in good faith, with legal obligations. As democratic States comprise three branches of government, the Executive, the Legislature and the Judiciary, all three have the obligation, within their respective possibilities, to make the treaty work. But not all three have the same means and power to do so. And all three have to stay within their own limited sphere. If the Executive are unwilling to comply with the obligations stemming from the treaty, and the Legislature is not acting, it will be the Judiciary that has to hold the State to their word as "pacta sunt servanda" is a peremptory rule, common to all civilised legal systems. In doing so, however, the courts can only go so far as the constitution allows them to. The reason for this is clear. Although in my view municipal courts can, should, and sometimes are bound to construe and apply relevant treaty law and even have been officially recognised as creators of international law (see: article 38 (1)(d) of the Statute of the International Court of Justice), the fact that these courts are created by or, as is the case with the Caribbean Court of Justice in its capacity of the court of final appeal of Barbados, have to discharge certain functions under the Constitution, their first loyalty is and must be owed to that Constitution. Consequently, the effect, the figurative light that emanates from the ratified treaty does not pour in abundantly but is, as it were, filtered through the ozone layer of the Constitution with its inherent values, logic and principles. And that ozone layer might for the most part be so impenetrable that much of the light will never, on its own, reach the individuals on the domestic ground.

[40] Does the Barbados Constitution allow any of this "light" to enter its legal atmosphere? As the Constitution seems to be silent on the subject, is this then a silence that gives consent? Or does the Barbados Constitution in another, indirect, way convey an opinion on the possible effect of treaty law on the domestic plane? In my judgment, the Constitution leaves the subject completely open. There might have been a restriction or prohibition in the way the Constitution defines what law is. However, it mentions "law" in the definition section 117 (1) without saying what "law" really means. The concept of "law" is not limited, but the definition only states that "law" includes (1) any instrument having the force of law and (2) any unwritten law. Accordingly, the Constitution leaves room for other forms of law and hence does not exclude international law in general or treaty law in particular. The sole section in the Barbados Constitution where international law is mentioned with so many words is section 79A (2)(b), that requires the Director of Public Prosecutions to act in accordance with general or special directions given by the Attorney-General in case of certain offences, inter alia, those "under an enactment relating to any right or obligation of Barbados under international law." However, I fail to see how that should lead to the conclusion that international law or rights conferred upon individuals by such law are thus logically and as a matter of principle excluded from being considered law under the Barbados Constitution.

[41] Does not the principle of the separation of powers, so firmly enshrined in the Barbados Constitution, prohibit us from accepting that by ratifying a treaty the executive branch could somehow cause legal rights, unknown on the domestic plane, to "fall from the heavens"? This would indeed have been the case if the Constitution had said that the Legislature has the exclusive power to make and unmake law. But that is not what the Barbados Constitution says. Section 48 (1) merely states that "subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good government." It is, moreover, a well- established fact that the executive branch, in the form of subsidiary legislation, also legislates. In terms of quantity such legislation is even greater than that of the Legislature, although it could of course well be argued that this legislative activity is only exercised and justified because, and so far as, it has been delegated by the Legislature itself. In this connection a distinction must be made between "making laws" and "making law". Although "laws" is the plural of "law", the latter nevertheless conveys a wider meaning than the former. "Making laws" is merely one form of "making law". This is clearly appreciated by the Constitution as it expressly recognises the existence of "unwritten law", meaning the common law as it has been developed and is being developed exclusively by the judicial branch. There is worldwide acceptance that the development of unwritten or common law is not simply the discovery of law and the making of declarations as to "what it is and always has been", but that it is a form of creating law. This is even true as to the interpretation of statute law which also, in part, might be regarded as a form of law creating.

[42] Although the Barbados Constitution endows only the Legislature with the authority to make laws, so that, under that Constitution the Legislature may be considered the sole creator of laws, they are not the sole creator of law. The Constitution apparently accepts and leaves some room for law-creating activity by other branches, if, and to the extent that, such activity is carried out within the boundaries of the respective constitutional sphere of the other branches. However, and this logically flows from the democratic values that underpin the Barbados Constitution, although the Legislature is not the sole creator of law, they clearly are, as they must be, the most important law-maker and they have, as they must have, primacy and hence an overriding power in this area. This means that they may always rein in the other branches if they think that these branches have gone too far or have taken an undesirable route in any law-creating activity which, expressly or impliedly, might have been afforded to them. The Legislature can thus, on the domestic plane, always unmake or nullify what was made, provided that the Legislature keeps within the ambit allotted to them by the Constitution. For these reasons, I would not be inclined to accept that the Barbados Constitution places an absolute fetter on the enforceability on the domestic plane of rights conferred by ratified but unincorporated treaties, a disinclination which is fortified by the fact that the realities of constitutional democracy in the Commonwealth Caribbean do not reflect the degree of separation between the executive and legislative powers that would justify such an absolute approach.

[43] This does not mean, however, that drastic changes in the law would flow from this departure from traditional thinking on this subject. Things are not as radical as they may seem. The Barbados Constitution has in section 1 an effective protective shield as it makes clear that the Constitution is the supreme law in Barbados and that any other law, international law included in my view, that is inconsistent with the Constitution shall, to the extent of the inconsistency be void (so far as the State of Barbados is concerned). The Barbados Constitution bestows upon the Legislature the exclusive "power of the purse". And the principle of the separation of powers that forms part of the Constitution confers on the Legislature the primacy of law making. It follows then, that ratified but unincorporated treaties cannot adversely affect the existing rights of the citizens under the Barbados Constitution (as was rightly decided in The Parlement Belge with respect to the English Constitution). These treaties can therefore not deprive the citizens of their existing rights, impose legal duties on them, authorise public expenditure, or create new crimes, without authorisation by the Legislature, as this would violate the separation of powers. What they can do, however, is to confer rights on the citizens, provided that these rights have been formulated in a way that makes them directly applicable and that they are compatible with the Constitution in general, and do not entail an infringement on the rights of other citizens in particular. It also follows that in the case of a conflict between a domestically enforceable provision in an unincorporated treaty and a clear statutory provision, the latter has to be given precedence by the courts, be it only if the meaning of the statutory provision is beyond reasonable discussion. In the words of Dame Rosalyn Higgins, the current President of the International Court of Justice: "[I]f a statute is truly unambiguous (which can often not be ascertained with confidence until relevant related texts are examined), then it will necessarily prevail over a contrary provision in an unincorporated treaty. But that is all."[FN27]. Moreover, international treaty law undoubtedly has, as it should have, a substantial impact on the development of the common law - of which customary international law, according to tradition, already forms part. Furthermore, the rights conferred by ratified but unincorporated treaties may well comprise, and introduce to the domestic plane, strong guiding principles as to the exercise of discretionary powers by any of the branches of government. How this eventually will affect the development of the law can, of course, within the confines of the present case neither be set out nor predicted. Caribbean constitutional law will majestically and inexorably unfold as it gradually advances from one case to another.

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[FN27] See: Professor Rosalyn Higgins QC, The Relationship between International and Regional Human Rights Norms and Domestic Law, in: Commonwealth Law Bulletin (October 1992), at p 1274
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[44] Section 1 of the Constitution ensures that unincorporated treaties, or incorporated treaties for that matter, cannot, without more, change or amend the Constitution. Counsel for the Crown took the position that the JCPC had done just that in Thomas v Baptiste and Lewis where they held that the government by ratifying the American Convention had temporarily extended the scope of the due process clause and the protection of the law clauses in the respective Constitutions of Trinidad & Tobago and Jamaica, and counsel urged us to reject that approach. It has to be admitted that the formulation that was used was rather unfortunate but I do not think that the JCPC for a moment meant to say that thereby the Constitution was extended or amended. It seems to me that the JCPC merely accepted, without explaining why or how, that by ratifying the American Convention the government made the legal procedure of article 44 "for the time being" part of the domestic system and thereby made it a domestic legal procedure. Being a domestic legal procedure, it was of course covered by the existing due process or protection of the law clause. It was therefore not the constitutional clause that was extended but the number of legal procedures that fell under this clause. The "trick"[FN28] that Lord Hoffmann correctly discerned in Lewis was not that the JCPC miraculously managed to amend the Constitution but that they somehow succeeded in converting a legal procedure on the international plane into one on the domestic plane. For Lord Hoffmann, a very articulate and firm believer in the immaculacy of the doctrine of the unenforceability of unincorporated treaties, that could however be nothing else but a trick.

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[FN28] Supra at p 307
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[45] The above does not imply that ratified unincorporated treaties cannot have any effect on the interpretation of the Constitution and other domestic law. As the metaphorical light which radiates from these treaties enters the legal atmosphere of the State, it illuminates, as we saw, the common law and statute law alike, and so directly or indirectly influences the content of the domestic law itself. It might also enlighten some of the provisions of the Constitution, most likely those provisions that embody the fundamental rights and freedoms of the citizens, even if this light is ultimately filtered out by the constitutional ozone. This is of course hardly surprising, considering the fact that the fundamental rights and freedoms enshrined in the Constitution have sprung from the same or similar human rights treaties that are regularly invoked. The Constitution and human rights treaties share, to a great extent, common values. Given the special position of the Constitution it is clear, however, that the courts should be very cautious whenever they find that such a broadening effect should be afforded to a constitutional provision. Such an effect will most likely be relevant to those provisions that contain open norms like fair, cruel, inhuman, degrading, (un)due and reasonable. But caution is required, indeed, especially when courts purport to deduce from their constitutions "principles" that are in no way expressed or clearly implied in the text of the documents themselves. Such an endeavour is, a fortiori, extremely precarious when "constitutional principles" of the unwritten English Constitution, which lack the supreme and overriding power of those of the Caribbean Constitutions, are read into the latter. If, for example, the exclusiveness of the executive power to ratify treaties, said to be one of the pillars of the doctrine of the unenforceability of unincorporated treaties, were a high principle of Caribbean constitutional law, then any statute limiting the scope of that executive power, like the Ratification of Treaties Act (1989) of Antigua and Barbuda, would be unconstitutional and, thus, null and void.

[46] Before returning to the particulars of the case before us, a few last words need to be said on this subject. International law, as far as applicable in a State, is by definition never foreign law. Treaty law can only be relevant to us if, and to the extent that, we, that is our government on behalf of us, sign, enter into and ratify a treaty. But once we do that, then it is ours. And when it is ours we have to accept responsibility for it. Certain elements of international law, called customary international law, form part of our law even without us signing anything. We simply accept those rules on the basis that we are not alone in the world; that we are, or assume we are, members of a comity, a family of civilised nations and on the understanding that the rules, emerged within that comity, have to be followed because they represent what civilised nations consider the proper thing to do. Because the signing and ratification of treaties have consequences, States should be cautious before they sign and ratify. But once they do, they are bound, and they must comply. Maintaining an old and unsound doctrine that stimulates an approach whereby treaties are ratified but almost never enacted, causes States to be perceived as having a split personality. A judicial restructuring of the judge- made law on this point will not completely set us free of this predicament, but it will make us more conscious of the healthy tensions within our domestic legal system and it will lead to a less contrived approach towards human rights law. At the same time, it will not prejudice or compromise our own true values and norms. The restructuring will not turn "our" dualist system into a monist one. In the latter, an unincorporated treaty, ratified after approval by the Legislature, will usually prevail over all domestic statute law and in some States it might even override the constitution itself. This is a far cry from the approach I have suggested that is one which I trust saves "radical dualism", as practiced in the Commonwealth Caribbean, from appearing to be schizophrenic.

[47] In concluding, it is obvious that the American Convention conferred on the respondents a right to file a petition with the Inter-American Commission in order to obtain a determination on a complaint against the Crown of violation of one or more of the human rights secured by this Convention. By virtue of that same right the respondents were entitled to expect that the Crown would engage in that procedure in good faith. It has not seriously been disputed that a good faith attitude in this context encompasses an obligation on the State to refrain from executing these men, at least for a reasonable time, while the procedure is still in progress and to allow them the benefit of having the results of the Inter-American procedure duly considered by the BPC before that body takes the final decision on their fate. This is clearly a right that does not interfere with the rights of other citizens. Not even a murder victim's personal representative or the surviving relatives of the deceased have the legal right to have the murderer hanged. That is a matter for the Crown. The right of the respondents, or rather its exercise, might hinder the Crown in their attempts to execute in a timely manner the sentence of the court but that is just the other side of the coin, which the State accepted when it ratified the Convention. Following the reasoning as developed above, then, I must conclude that this right is enforceable and should be respected even at the domestic plane. Using the word "even" in this context must, from a common sense perspective, be utterly awkward. How could one tell a condemned man, in deadly earnestness, that he exists on two planes and that, although he has a right to stay alive on the one plane, he will be hanged on the other? From the foregoing it is quite clear that, in my view, notwithstanding the far from satisfactory reasoning of the JCPC, Lewis was rightly decided and that it was correct, from my perspective, to follow Thomas v Baptiste.

[48] I wholeheartedly agree with Lord Bingham when he said in R v Lyons and others[FN29] that "international and national law ... should be seen as complementary and not as alien or antagonistic systems." Both systems may assist us in achieving the probably unachievable, respecting the human dignity of every human being. In that endeavour I think we should be the "bold spirits" that Lord Denning once spoke about, although I do not believe that giving sufficient attention to legal certainty would make us "timorous souls". However, in giving meaning to the requirement of legal certainty we should not indulge in overly formal approaches, while losing sight of the substance. There is always such a danger. Most probably because of the absolute terms in which the JCPC had cast their procedural recommendations in Pratt, the BPC in July 2002 felt themselves obliged to meet shortly after the first decision of the Court of Appeal and to decide whether or not there should be mercy for the respondents, although they were aware that an application for special leave to appeal to the JCPC was pending. Of course, the BPC had no intention of being cruel or inhuman to the respondents. They just faithfully followed the procedure set out in Pratt. However, the substance, the gist, of the recommendations was simply that the criminal justice system as a whole should operate with reasonable expedition in order to avoid unnecessary delays. Given the fact that the final appeal in this case was already on its way, no action by the BPC was, therefore, really required to comply substantially with Pratt.

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[FN29] [2002] 4 All ER 1028 at p 1036
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[49] It is in a sense regrettable that human rights almost always seem to be invoked by people who themselves have shown little respect for the rights of others. We pride ourselves, rightly so, that the rule of law embraces even those that live on the seamy side of society. But it sometimes seems to shake the "unshakable faith in the fundamental rights and freedoms" when it appears that the application of those rights has once more "saved the necks" of those that have committed very serious crimes. That is most unfortunate. The potential, the positive and creative effects of these rights abound for those who want to see them. They are there for all citizens alike and not only for condemned murderers.

[50] There can be no doubt that I concur in the conclusions arrived at in the joint judgment of the President and Saunders J. It is clear that I agree also to a great extent with the reasoning in their judgment and in the judgments of my other learned colleagues but that I respectfully disagree with part of their reasoning as to the issue of the effect and enforceability of unincorporated treaties. Having read their judgments in draft, I have greatly benefited from them not only where I am in agreement with them but also, or particularly, where our ways ultimately have parted.

/s/ J. Th. Wit
Jacob Th. Wit

JUDGMENT OF THE HONOURABLE MR. JUSTICE HAYTON

[1] Having had the advantage of reading the joint judgment of the learned President and Saunders J in draft, for the reasons given by them I agree that: –

(a) the procedural fairness of the exercise of the prerogative of mercy under s 78 of the Barbados Constitution is subject to judicial review, and this is not ousted by s 77 (4);
(b) the reasoning of the majority of the Judicial Committee of the Privy Council ("JCPC") in Thomas v Baptiste[FN1], applied by the majority of the JCPC in Neville Lewis v Att-Gen of Jamaica[FN2], does not justify the JCPC's conclusions that rights purportedly conferred on individuals by ratification of an international treaty, the American Convention on Human Rights, have become part of the domestic criminal justice systems respectively of Trinidad and Tobago (under the "due process of law" clause in s 4(a) of its Constitution) and of Barbados (under "the protection of the law" clause in s 11(c) of its Constitution);
(c) the crucial protection provided to condemned murderers by the JCPC in these two cases can, instead, be justified on the basis that the treaty-compliant behaviour of a Government can give rise, as in this case, to an indefeasible legitimate expectation of the condemned man that he will not be executed until a reasonable time has been allowed for the Inter-American Human Rights system to run its course and the results thereof to have been considered by the Barbados Privy Council (BPC") under s 78 of the Barbados Constitution;
(d) the Court of Appeal was right to hold itself bound to follow Neville Lewis and to use its power under s 24 of the Constitution to commute the death sentences of the respondents to life imprisonment when it was apparent that their imprisonment was inevitably going to infringe the period laid down in Pratt and Morgan v Att-Gen for Jamaica[FN3] as contravening s 15 of the Constitution prohibiting inhuman treatment; and thus
(e) the appeal must be dismissed (with costs to each of the respondents certified as fit for two counsel).

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[FN1] [2000] 2 AC 1; (1998) 54 WIR 3 87
[FN2] [2001] 2 AC 50; (2000) 57 WIR 275
[FN3] [1994] 2 AC 1; (1993) 43 WIR 340
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[2] It is noteworthy that counsel for the respondents rested their submissions simply on the need to accept the correctness of the reasoning in Neville Lewis and to follow that decision. Thus, no argument was heard on the possibility of developing judicial review of the prerogative of mercy in accordance with Wednesbury irrationality principles (named after Associated Provincial Pictures Ltd v Wednesbury Corporation[FN4]) nor of developing a broad principle that rights conferred by international human rights treaties are part of domestic law, irrespective of any alleged "mediation" provided by "due process" or "protection of the law" clauses in Constitutions. It may be that the law will so develop but, before coming to any far-reaching conclusions, I consider that full detailed inter partes argument on these specific points is required. True, we did not have the benefit of such forensic argument on indefeasible legitimate expectations, but we could not possibly accept the reasoning of the majority of the JCPC in Thomas, uncritically applied by the majority in Neville Lewis, because it was based on assertion rather than analysis, though reaching a just outcome. Necessity thus became the mother of invention, but the furtherance of justice in this particular case requires only incremental inventive development of the law.

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[FN4] [1948] 1 KB 123
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RELATIVE ROLES OF THE BPC AND THE COURT

[3] In this respect, I have some comments on the relationship between s 24 and s 78 of the Barbados Constitution which concerns the role of the court and the role of the BPC. On a breach of "the provisions of sections 12 to 23" of the Constitution, s 24 confers on the Courts exceptionally flexible positive powers (e.g. to commute a death sentence to some lesser sentence). The question arises as to what is the position if a convicted murderer successfully alleges that there has been a breach of his right to procedural fairness in the exercise of the prerogative of mercy under s 78 of the Constitution. Must the court refer the matter back to the BPC or can it deal with the matter itself?

[4] Back in 1966, when the Constitution of Barbados became law, the orthodox view was that the exercise of the prerogative of mercy was not judicially reviewable (as witness de Freitas v Benny[FN5]), while ousting the jurisdiction of the courts could be valid (as witness Smith v East Elloe RDC[FN6]). Thus the Constitution would have been premised on there being no possibility of the court's powers under s 24 being applicable to any exercise of the prerogative of mercy, which was the exclusive preserve of the Governor-General acting as directed by the BPC. However, we have held - as did the JCPC in Neville Lewis - that, in the light of modern developments, the exercise of the prerogative of mercy is judicially reviewable and is not ousted by s 77(4). The court's powers on a successful judicial review of a disputed decision are, of course, negative powers involving the quashing of the relevant decision (perhaps, out of an abundance of caution, coupled with the grant of a prohibitory injunction), so that the decision-making body has to make a fresh decision, but only acting in a proper fair manner. Moreover, where the decision concerns the exercise of an executive body's apparently exclusive discretionary power to commute a mandatory death sentence to one out of a variety of lesser punishments, one would expect the mandatory nature of the death sentence to oust any inherent judicial sentencing input.

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[FN5] [1976] AC 239
[FN6] [1956] AC 736
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[5] While, as we have held, the right to procedural fairness in s 78 mercy matters (and other matters) is part of the protection of the law of Barbados in s 11 (c), this section is merely a preamble reciting the fundamental rights and freedoms of every person in Barbados before providing "the following provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions." Section 18, by its heading and content, is the provision "to secure protection of the law" but, as might be expected when it was drafted in 1966, its wording does not stretch to the discretionary exercise of mercy once there has been a due conviction under the protection of the law, it being considered that it is up to the BPC to exercise mercy (via the Governor-General), not the court.

[6] In these premises it seems that only the standard judicial review powers are available for breach of procedural fairness in the exercise of the prerogative of mercy under s 78. On such a breach the BPC's decision will be quashed so that the BPC, as a responsible body, can re-consider the matter in the light of the court's judgment providing guidance as to what is a procedurally fair process. It may be suggested that once there has been a breach of procedural fairness by the BPC it may not be safe to remit the case to the BPC ("one strike and it is out"), so that inevitably the court would have to exercise what was hitherto the BPC's exclusive prerogative of mercy. To my mind, this tilts the constitutional balance between the executive and the judiciary further in the judiciary's favour than contemplated by the Constitution. Even if the law develops on Wednesbury irrationality lines, it seems to me that the court should go no further than quashing an irrational decision of the BPC to refuse commutation of a death sentence decision while making clear that such refusal is not an option available to the BPC, leaving it to the BPC to determine the appropriate lesser sentence, whether imprisonment for life or 20 or 12 years or some lighter sentence.

[7] It is, of course, open to this Court to find that s 24 of the Constitution confers this positive power upon the courts and not the BPC once a BPC decision is procedurally unfair or Wednesbury irrational. Thus, s 12, as part of a living Constitution, could be interpreted as if either having the word "due" necessarily inserted therein, so as to read "No person shall be deprived of his life intentionally save in due execution of the sentence of a court...", as the learned Justice Wit has indicated in his judgment, or as having "in accordance with the protection of the law" necessarily inserted so as to read ".save in execution, in accordance with the protection of the law, of the sentence of a court". The powers in s 24 are then available to enable the court directly to exercise the same flexible powers as the BPC. Alternatively, a "broad brush approach" can be taken as in the joint judgment of the learned President and Saunders J to find at [65] that "the courts have an inherent jurisdiction, and a duty, to grant an appropriate remedy for any breach of that right" to procedural fairness as part of the protection of the law under s 11, though they envisage at [67] that the appropriate relief normally would be to quash the decision of the BPC and remit the matter to it for a further but procedurally fair consideration of the matter.

[8] In the circumstances of the present case, where a breach of s 15 of the Constitution clearly triggers the court's powers under s 24, there is to my mind no need yet to go down a road that would enable the court to supplant the mercy role of the BPC once the BPC has come to a procedurally unfair decision.

[9] A further point is that, while endorsing the final section "Disposing of the Appeal" at [138]-[144] of the joint judgment of the learned President and Saunders J, I think it should be made clear that, although the BPC must consider any report received from the Inter-American Human Rights Commission ("the IAHRC"), the Court of Appeal is wholly wrong at [83] of its judgment in requiring the BPC to state its reasons if it decides not to follow the Commission's recommendations for clemency. In my view, the BPC is not bound to give any reasons for its decision either to commute or not to commute the death sentence: the courts are not entitled to require its reasons from the BPC (though it is free to supply them if it wishes so as to counter possible adverse inferences). However, the courts, in the light of court records and the further material before the BPC, can look at the BPC's decision that is the result of reasoning as to which the courts are in the dark. If it then appears that the decision not to commute the death sentence is an extraordinary one that no rational properly-informed body could have made if acting in a procedurally fair fashion, the court will be able quash the decision if it is prepared to apply Wednesbury principles as earlier mentioned, but this issue is for another day.

PROBLEMS WITH THE IAHRC AND PRATT AND MORGAN

[10] Finally, I believe it appropriate to endorse the criticism of the learned President and Saunders J of the five year rule developed by Pratt and Morgan, which simply encouraged the IAHRC to pursue its apparent anti-death penalty agenda by not producing its reports on condemned murderers in timely fashion. This ensured that the five year period was exceeded, so that all murderers sentenced to death could themselves commute their death sentences to life imprisonment simply by petitioning the IAHRC - and so wholly undermining the Constitutional death penalty.

[11] Just as the poorest of countries have to organise themselves to produce timely justice for murderers, so should the IAHRC arrange for production of timely reports on anxious condemned murders on death row, rather than leave their hopes dangling for considerable periods that are in excess of eighteen months. "Justice delayed is justice denied", and the least that can be expected of an international body that cares for murderers on death row is that it should produce reports on them within eighteen months at the outermost limit. Court-imposed guidelines on bodies should encourage such bodies to perform their tasks in good faith with as much expedition as possible and not with the least expedition possible. Thus, there is much to be said for the local Court of Appeal to be expected to deliver judgment within twelve months of the accused's conviction for murder (giving priority to murder cases), the Caribbean Court of Justice to deliver judgment within twelve months of the Court of Appeal's judgment and the IAHRC to deliver its report within eighteen months of the CCJ's judgment (assuming no delay has been caused by the tardiness of a Government's response to a request from the IAHRC). If the IAHRC does then take more than eighteen months to produce a report for the benefit of the murderer, it and he ought to accept the burden of a longer than necessary sojourn on death row without this amounting to prohibited cruel and inhuman punishment which has to be remedied by commutation of the death sentence: no benefit without the concomitant burden. However, resolving particular time limits should await detailed inter partes argument with supporting evidence, so this is yet another issue peripheral to this case but of much significance which remains to be finally resolved another day.

/S/ David Hayton
David Hayton

 
     
     
     

 

 

 

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