Mucking around the Constitution   

— R.V.   

Now that the general elections are over and the political rhetoric has been shelved for the next five years, it is high time for the new government to give serious thought to the desirability of inviting a public debate on the death penalty before proceeding to its reintroduction. A responsible government would want to be enlightened before introducing a measure which may blemish its international commitment to human rights.  

The reintroduction of the death penalty has always been a hot favourite with the MSM, the more so if it serves to whip up a waning electoral base. Today government wants to dangle the same carrot to the electorate. It is highly mistaken, if it considers that the reintroduction of the death penalty will act as a deterrent to the threat caused by the scourge of addictive drugs.   

Both the President and the Prime Minister should realise that they are guardians of the Constitutional values of the Republic of Mauritius. The death penalty is contrary to section 7 of our Constitution as being cruel, inhuman and degrading.   

The reintroduction of the death penalty is confounded further though, since government will have to reconcile two conflicting provisions of the Constitution – sections 4 (Protection of right to life), and 7 (Protection from inhuman treatment). Section 4 provides that it is lawful to deprive a person of his life in the execution of a sentence of a court in respect of a criminal offence of which that person has been convicted.  

So far the attack on the death penalty has been made as a breach of section 7, which provides that no person shall be subjected to torture or to inhuman or degrading punishment or other such treatment, and also where it is imposed as a mandatory sentence, it has been found to be in violation of the separation of powers. 

So the inevitable will happen as government will have to clear the Constitutional ambiguity if it does not want to give a field day to Constitutional lawyers before the Privy Council. It is not simply an exercise of reactivating a law which has been left on stand-by for a number of years.  

It is a well established rule that when interpreting the Constitution of a society founded on the recognition of human rights, the courts will be generous and purposive in their interpretation to ensure that the protection afforded by the Constitution is not taken away from the citizen. The courts are most likely to follow what has already been decided by the European Court of Human Rights, namely that the death penalty is unconstitutional as being in violation of section 7. In a series of judgments concerning the Bahamas, Jamaica, Trinidad and Tobago and Grenada and St Vincent, the Inter-American Commission on Human Rights has held that the death penalty is a violation of human rights and tantamount to cruel and unusual punishment.  

At a time when all civilised nations have abolished the death penalty, if not moving towards its abolition, it seems quite odd that Mauritius should want to swim against the current. The UK abolished the death penalty in 1969, after giving itself a moratorium of 5 years. In France the death penalty was abolished in 1981 by the Socialist government.   

Closer to us, South Africa has, since the introduction of its new Constitution, declared the death penalty to be an inhuman and degrading treatment. Mozambique, Angola and Namibia have followed the South African example. Today, the death penalty has been formally abolished as a penalty either specifically or in practice by almost half the countries of the world including the democracies of Europe. In most of those countries where it is still retained, as the Amnesty International statistics show, it is seldom used.  

The death penalty is the most extreme form of punishment to which a convicted criminal can be subjected. Its execution is final and irrevocable. It puts an end not only to the right to life itself, but to all other personal rights which had been vested in the deceased under Chapter Two of our Constitution.  

In the context of the arrangements put in place for it, the death sentence is undoubtedly a cruel punishment. Once sentenced, the prisoner waits on death row in the company of other prisoners under sentence of death, for the processes of their appeals and the procedures for clemency to be carried out. Throughout this period, those who remain on the death row are uncertain of their fate, not knowing whether they will ultimately be reprieved or taken to the gallows.   

It is also an inhuman punishment for it “… involves, by its very nature, a denial of the executed person’s humanity”, and it is degrading because it strips the convicted person of all dignity and treats him or her as an object fit only to be eliminated by the State. That was the decision reached by the Privy Council in the case of Earl Pratt v Attorney General where the appellant Pratt had spent several years in jail waiting for the decision of the appellate court.  

Similarly in the case of Ng, a Canadian national, who had appealed to the Human Rights Committee of the United Nations, contending that Canada had breached its obligations under the International Covenant on Civil and Political Rights, the Committee made the following remarks: “The Committee is aware that, by definition, every execution of a sentence of death may be considered to constitute cruel and inhuman treatment within the meaning of article 7 of the Covenant.” 

Government would want to circumvent its constitutional dilemma by providing that the death penalty be limited to certain serious offences only and will not be mandatory. This kind of selection will not keep the death penalty from being classified as a retrograde step. The issue of crime is best dealt with by taking measures to fight poverty. In that respect, the creation of a new Ministry of Social Integration to tackle poverty is most welcome. It will be a huge mistake if we muck around with our Constitution to provide for a measure which conflicts frontally with our human rights values.   

The words of Lord Neuberger of Abbotsbury cautioning the British government against some aspects of the Constitutional reforms that were taking place in Britain, sum up the situation: “The danger is that you muck around with a constitution like the British Constitution at your peril because you do not know what the consequences of any change will be. With all due respect, this is a case of shutting the stable door after the horse has bolted. The Constitution has already been mucked around considerably, the vast majority just haven’t really noticed.”  


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