“The Stone that the Builder Disallowed”
Posted on May 24, 2007
Filed Under Legal Commentary |
A Commentary on Bernard Coard et al v. The Attorney-General*
by Dr. Lloyd Barnett
Until the Grenada Revolution in 1979, Grenada like other Commonwealth Caribbean Countries had a Constitution which guaranteed fundamental rights and freedoms and an independent Judiciary. The Revolution ousted the previously elected government and established a militaristic government which ruled largely by decree. Thus the Constitution was jettisoned. Peoples Law no. 4 of 1979 removed the jurisdiction of the Supreme Court and Court of Appeal of the Associated States and replaced them by local courts.
Friction developed in the revolutionary government and one faction led by Bernard Coard violently attacked the faction led by the charismatic Maurice Bishop. Bishop and many of his supporters were exterminated. The cynic may say that those who live by the sword will die by the sword. The United States, fearing a communist expansion in the English-speaking Caribbean invaded Grenada with the support of some Caribbean States. The “counter-revolution” was suppressed. Constitutional government was restored.
In December 1986 Coard and 13 others were convicted of the murders of Bishop and ten others after a protracted, contentious and controversial trial. The convicted persons were sentenced to death. After a further lengthy period of appeals their convictions and sentences were upheld.
In the course of their efforts to overturn their convictions and sentences, the appellants relied on several principles which are components of the Rule of Law and constitutional guarantees of human rights, which had been treated during the revolutionary period as bourgeoisie irrelevance.
Fifteen years after the appellants’ convictions and sentences the Caribbean Court of Appeal, presided over by Byron, C.J., (who, mirabile dictu, had been the trial judge at the appellants’ trial) held in a St. Lucia appeal that a mandatory death penalty was an “inhuman and degrading punishment” and unconstitutional. Relying on this decision and its affirmation [1] by the Privy Council, the appellants in 2002 filed a constitutional motion challenging the sentences which had been imposed on them and the commutation of those sentences by virtue of which they had continued to be held in custody.
On February 7, 2007, the Privy Council upheld their contention, set aside the sentences and ordered that their cases be remitted for a sentencing hearing. In view of the long passage of time they are no longer by virtue of the Pratt and Morgan principle exposed to the death penalty.
Up to this point the decision of the Privy Council is essentially affirmative of what are now well recognised principles. However there are a number of other important points which deserve special mention.
The Appellants’ case is a remarkable illustration of the resilience of the Rule of Law and human rights. It also demonstrates that if the death penalty had been carried into execution, the appellants would have been denied, finally and conclusively, the benefits of their constitutional right to be safeguarded against inhuman or degrading punishment.
Although there are legal provisions for a Review Board, this was an undesirable alternative to a judicial determination of the appropriate sentence because the question of the appellants’ fate continued to be politically charged. This illustrates how important is the preservation of the judicial function in sentencing exercises where public emotion and popular sentiment militate against a balanced consideration of the appropriateness of the imposition of the death penalty.
The Board refused to treat the question of the appropriateness of the death sentence as res judicata. Their Lordships pointed out that the traditional application of the doctrine of res judicata would be artificial as the legality of the mandatory death sentence had never at the time of the earlier proceedings been the subject of judicial decision and in any case the principle of res judicata should not be allowed to stand in the way of granting relief to prevent the carrying into effect of an unlawful sentence.
Thus principles of fairness, human rights, the rule of law and constitutionalism have come to the aid of those who had previously frowned on them and “the stone that the builders disallowed, the same is made the head of the corner”. [2]
* Privy Council Appeal no. 10 of 2006 (February 7, 2007).
1. R. v. Hughes (2001) 60 W.I.R. 156.
2. 1 Peter 2:7
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One Response to ““The Stone that the Builder Disallowed””
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Lawyers make crafty politicians who often say one thing and do the opposite.
Coard did not hesitate to kill Bishop under revolutionary law but was quick to use constitutional law to defend himself.Shall Caesar defeat Caesar?
Human rights advocates are not able to take right/ wrong positions.Be careful, your life will one day hang in the balance and only the right position can be carried.
Regards