Death penalty: The legal hurdles will never be surmounted for bringing back this punishment
It was unexpected. It was a real surprise. That was the statement made by the Prime Minister, Navin Ramgoolam that he was giving some thought to bringing back the death penalty to combat crime and drug trafficking. That statement has in the last week sent ripples of discontent in many quarters. It has also provoked waves of approval with some. We have been fed with the oft repeated arguments on the pros and cons of the death penalty.
These are relevant from an academic point of view and do not address the legal issues that the intention of the Prime Minister may give rise to. But before going to the legal hurdles we should address the motivation of Navin Ramgoolam.
Is it to add more leverage in his bid to clinch an alliance deal with one of the Opposition parties? By calling for the restoration of the death penalty is he dangling the carrot to the MSM and indirectly the stick to the MMM if the latter becomes too greedy in regard to tickets and electoral manifestoes? We hope not.. If the latest opinion poll translates into votes and seats the Prime Minister will be home and dry.
Or is the Prime Minister motivated by the image that he has given to the people as being soft when it comes to law and order. We should not forget that since the Kaya related riots that rocked the country in 1999 Navin Ramgoolam has taken a serious blow to his reputation as a home minister capable of dealing efficiently with the law and order situation. Day in and day out the written press and the private radios have hammered on this. And, more recently, Anil Gayan has encapsulated that image in an interview in this paper last week: “Au fait, à chaque fois que le Parti travailliste se retrouve au pouvoir, la situation au niveau du ‘law and order’ fout le camp, car le laisser-aller travailliste permet l’émergence d’un climat et d’un environnement où les marchands ambulants, les trafiquants des terres de l’Etat, les ‘bouncers’, etc., se croient tout permis puisque ‘gouvernement dans nous la main’! Croyez-vous que la peine capitale va pouvoir combattre la criminalité dans de telles conditions? Je ne le crois pas ! ”
Is Navin Ramgoolam struggling now to change that perception of him and his party and trying to play the robust cowboy who thinks that all solutions lie in a pair of colts and a few corpses around?
There has never been serious debate around the death penalty in Mauritius. A timid attempt was made in 1972 when two main protagonists Sir Harold Walter, who was an ardent defender of the capital punishment, and Sir Gaetan Duval, who strongly opposed it, crossed swords in the debates on the motion in Parliament. The matter was never put to a vote. Though there were a few inmates on death row in the seventies, then Prime Minister Sir Seewoosagur Ramgoolam never signed the execution warrant and the death sentence meted to these inmates died a natural death. The last execution under colonial rule was carried out in 1961 when Claude Gowin was executed in 1961 for murder. No execution was carried out for 23 years until Myrtille was executed for murder in 1984. He was prosecuted before the Assises presided by the late Justice Yves Espitalier-Noel. The prosecution was represented by Vinod Boolell and the defence by the late Madun Gujadhur QC. The second and last execution was carried out in 1987 when Eshan Nayeck was executed for murder. The prosecution was represented by Ashraf Caunhye and Justice Glover presided over the trial. It should be recalled that the death warrant in both cases was signed by Sir Anerood Jugnauth, who was then Prime Minister. It is the same man who as President of the Republic has expressed his faith in the death penalty just as his son Pravind Jugnauth, the Leader of the MSM has done.
On a matter of principle, even if he had signed two death warrants in the space of three years, should the President of the Republic have expressed his views on capital punishment though these views were already in the public domain? The question assumes all its importance in view of the constitutional position the President holds in regard to the Commission on the Prerogative of Mercy under section 74 of the Constitution. The President appoints the members of that Commission in his own deliberate judgment. That Commission advises the President on the exercise of that prerogative.
Under section 74 of the Constitution, the President may – (a) grant to any person convicted of any offence a pardon, either free or subject to lawful conditions; (b) grant to any person a respite, either indefinite or for a specified period, of the execution of any punishment imposed on that person for any offence; (c) substitute a less severe form of punishment for any punishment imposed on any person for any offence; or (d) remit the whole or part of any punishment imposed on any person for an offence or of any penalty or forfeiture otherwise due to the State on account of any offence.
If, and we say if and not when, capital punishment is ever to be restored will the President feel bound to follow the advice of the Commission if an advice is tendered to substitute a death sentence by a term of imprisonment or will he resign? And why did Sir Anerood Jugnauth as Prime Minister agree to have the death penalty kept on hold? It has been kept on hold as the section 4.1 of the Constitution that deals with the protection of the right to life still subsists and it reads: No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence of which he has been convicted. Was it political convenience as he needed the PMSD to join his government in 1995?
Even if capital punishment is reintroduced in our legislation as this will require a simple majority, it will have to pass the test of constitutionality. Section 7.1 of the Constitution that deals with protection from inhuman treatment reads: No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment. In the case of Lambert Watson (decided in 2004), seven Law Lords and another Judge decided in relation to a case from Jamaica that has a Constitution similar to ours that the imposition of a mandatory sentence of death for murder subjected the convicted accused to inhuman or degrading treatment and was unconstitutional as a breach of the provision relating to cruel and inhuman punishment.
In the case of Boucherville v The State of Mauritius in 2008, the Privy Council took the view that the accused had been subject to an unconstitutional sentence of death. In fact when Boucherville was convicted of murder by Justice Lallah at the Assizes it was a mandatory death sentence. Since delays occurred since the pronouncement of the death sentence and the accused had spent more than five years on death row, it was stated in an earlier decision that to execute him would be tantamount to cruel and inhuman punishment following the Privy Council case of Pratt v. Attorney-General of Jamaica in1993.
The issue of mandatory sentence also arose in the case Mohammed Mukhtar Ali in 1992 where it was said that it was not for the Legislature to decide in a mandatory way the sentence to be inflicted but for the courts of law in compliance with the principle of separation of powers.
Mauritius has retained the Privy Council as its last court of appeal. As such the Supreme Court is bound by the decisions of the Privy Council interpreting constitutional provisions of our own or similar to ours. If Navin Ramgoolam succeeds in his bid to reintroduce capital punishment, he will have to amend the Constitution to nullify the effects of the Privy Council decisions on cruel and unusual punishment and mandatory death sentence. This will be an uphill task because the Supreme Court may well say that the Legislature is usurping the powers of the Judiciary in selecting the sentence.
When the Jugnauth government of 2005 wanted to amend the Constitution to deny bail to suspected drug offenders, that amendment to the Constitution was struck down as being unconstitutional as it sought to usurp the inherent powers of the courts to decide on the liberty of the citizen. The Supreme Court referred to the concept of democratic state in section 1 of the Constitution and discussed the concept of separation of powers in relation thereto. And it is virtually impossible to amend section 1 of the Constitution in view of section 47.3 of the Constitution that reads:
A Bill for an Act of Parliament to alter the provisions of section 1 or 57(2) shall not be passed by the Assembly unless –
(a) the proposed Bill has before its introduction in the Assembly been submitted, by referendum, to the electorate of Mauritius and has been approved by the votes of not less than three quarters of the electorate;
(b) it is supported at the final voting in the Assembly by the votes of all the members of the Assembly.
This sweeping amendment to the Constitution was made by the MMM government in a bid to consolidate democracy and make it virtually impossible to postpone elections as was the case in 1972 under the Labour Party/PMSD government. By so acting and to demonstrate to the people in 1982 how “heinously undemocratic” the Labour Party was, the MMM has tied the hands of any Parliament to bring realistic reforms to the Constitution in accordance with the march of time and changing social imperatives. So all this empty talk and emotional reaction to the statement of Navin Ramgoolam about bringing back capital punishment can best be directed to the garbage bin. The legal hurdles will never be surmounted for bringing back this punishment however unpalatable it may be to its proponents.
Judge Michael Kirby of the High Court of Australia, who is well known in human rights circles, in a speech delivered on 6 October 2003 to commemorate the centenary of the High Court of Australia in Melbourne, described the death penalty as the ultimate acknowledgement of the failure of civilisation.
Has this government really failed to be imaginative and creative in dealing with law and order?