By Feona Morrison
Section 100 of the Criminal Law (Offences) Act states: “Everyone who commits murder shall be guilty of a felony and liable to death as a felon.” However, this does not mean that it is mandatory for such a sentence to be imposed.
In fact, in a judgment dated December 17, 2012, High Court Navindra Singh held that the discretion regarding imposing the death sentence resides with the Judge, and that such a sentence should be reserved for murders that are of a seriously depraved and heinous character, which would, of course, be determined based on the evidence of the case and any sensible and realistic mitigation plea by the convicted person.
The case of the State vs Dwayne Jordan was the premise for the Judge’s ruling.
Jordan was charged with murder committed on Claudine Rampersaud, his reputed wife, which occurred on June 14, 2007 in the county of Demerara.
Following a Preliminary Inquiry, Jordan was on January 13, 2010, committed to stand trial in the High Court. On November 21, 2012, State Prosecutors Konyo Sandiford and Renita Singh presented a murder indictment against Jordan; he pleaded not guilty and thereafter his trial commenced.
After evidence was presented by the State and defence counsel, the case was put to the jury for deliberation on a verdict. Evidence from the man’s trial revealed that Jordan heard a rumour that his spouse had another man. Sometime after, the woman was found in an abandoned house with injuries appeared to have been inflicted by a hatchet or knife.
On December 7, 2012, the jury found Jordan, a then 40-year-old carpenter, unanimously guilty of the offence. Jordan was not sentenced immediately, after as his Counsel requested of the court to be heard on four points. The first one being that the mandatory death sentence in a case of this nature is unconstitutional insofar that the penalty is mandatory, since it takes away the discretion of the trial Judge.
Defence Counsel submitted that Jordan was entitled to mitigate before the court imposed a penalty; that the punishment of death by hanging is contrary to Article 154A of the Constitution and that the punishment of death by hanging was cruel, unusual and inhuman treatment which is contrary to Article 141 of the Constitution.Article 141 (1) of the Constitution reads: “No person shall be subjected to torture or to inhuman treatment or degrading punishment or other treatment.” As for 141 (2), it adds: “Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that the law in question authorizes the infliction of any punishment or the administration of any treatment that was unlawful in Guyana immediately before the commencement of this Constitution.”
The Judge also took into consideration the provisions of Article 39 (2) of the Constitution which reads: “In the interpretation of the fundamental rights provisions in this Constitution a court shall pay due regard to international law, international conventions, covenants and characters bearing on human rights.”
Justice Singh in determining the first point raised by Defence Counsel opined that the court must first determine whether a proper statutory interpretation of Section 100 of the Criminal Law (Offences) Act does in fact lead to the conclusion that the penalty of death is mandatory for a person convicted of murder.
Justice Singh considered the true meaning of the language used in the legislature. He said that the court was of the view that the words “liable to suffer death” imports discretion in the Judge to pass some lesser sentence.
To substantiate his view, the Judge said: “The word liable is defined in the Black’s Law Dictionary, 9th ed., with regards a person, “subject to or likely to incur”, words which are certainly not mandatory in nature; mandatory being defined “Of, relating to, or constituting a command required; peremptory.” To further support his view, the Judge also referenced several case laws.
In his judgment, Justice Singh reiterated that “likely to suffer” is not mandatory in nature and in fact if the legislature intended the penalty of death to be mandatory, it would have been unambiguous and unmistakable to simply replace the words “liable to” with “shall” or for that matter just delete the words “liable to”.
The Judge, among other things, pointed out that if there were any doubts as to the nature of penalties in the Criminal Law (Offences) Act, then Section 45 (a) of the Interpretation and General Clauses Act, makes it clear that there are maximum and not mandatory in nature. He therefore held that in the opinion of the court in keeping with international obligations as provided for by virtue of Articles 39 (2) and 154 A, it is implicit that the penalty of death cannot be a mandatory one.
“This court finds that the penalty of death provided for in Section 100 of the Criminal Law (Offences) Act is not required to be mandatorily imposed upon conviction, this court finds that the penalty of death is the maximum penalty provided…,” Justice Singh held in his judgment.
CONSTITUTIONALITY OF DEATH PENALTY
As it relates to the constitutionality of the death penalty, the Judge noted that the following Articles of the Constitution must be considered: Articles 138 (1) which reads: “No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of an offence under the laws of Guyana of which he has been convicted.”
Also to be considered, the Judge said, is Article 141 (1) and (2) as well as Article 152 (1) (a). The latter reads: “Except in proceedings commenced before the expiration of a period of six months from the commencement of this Constitution, with respect to a law made under the Guyana Independence Order 1966 and the Constitution annexed thereto, nothing contained in or done under the authority of any written law shall be held to be inconsistent with or in contravention of any provision of Articles 138 to 149 (inclusive) to the extent that the law in question—is a law (in this article referred to as “an existing law”) that had effect as part of the law of Guyana immediately before the commencement of this Constitution and has continued to have effect as part of the law of Guyana at all times since that day.”
Again, the Judge pointed out that Article 154 (A) (1) and (2) also had to be taken into account. He said, “In the opinion of this Court, Articles 138, 141 and 152 operate to maintain and save the penalty of death as a lawful and constitutional penalty in Guyana under Section 100 of the Criminal Law (Offences) Act, however, as stated before, such a penalty must be reasonably and rationally imposed.”
In his judgment, the High Court Judge in citing a case from the Judicial Privy Council, had reasoned that the punishment of a person convicted of a crime should be proportionate with the gravity of the crime and certainly, based on the legal elements of murder, it must be that the gravity of this crime varies widely with regards to criminal culpability. Take for example the person who may have intended to cause harm has a distinction from the person who clearly intended to kill.
“It is a matter for the legislature to consider further the possible implied obligation upon them with regards to the country’s international obligations under the Constitution,” the High Court Judge noted in his judgment.
Justice Singh had sentenced Jordan to death in 2012. But last year June, the Court of Appeal set aside Jordan’s death sentence; it substituted it with 30 years’ imprisonment after affirming his conviction for murder.
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