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Bahamas called on to abandon Privy Council
Published on January 30, 2016 Email To Friend    Print Version

Justice Neville Smith QC delivers remarks at the special sitting on Thursday. Photo: Ahvia J. Campbell

By Krystel Rolle-Brown
Nassau Guardian Staff Reporter

NASSAU, Bahamas -- Retired Justice Neville Smith QC, said on Thursday the country should not allow itself to become a “hostage” to the Privy Council and recommended that The Bahamas set up its own final court of appeal rather than continue to “perch” on the British government’s doorstep.

“Who knows when the British government, bent on the restructuring of its courts … will do away with the Privy Council that it created by an 1844 English act,” said Smith at a special sitting at the Court of Appeal to mark the opening of the legal year.

“Should we not set up our own final court in our own deliberate time rather that to continue to perch on the doorstep of the foreign office in London or wait to be embarrassed by the British government doing away with the Privy Council and cause us here to run … to make up a replacement court?

“We should not allow ourselves to become a hostage.”

He said the Court of Appeal is suited to fill the role of becoming the final court of appeal in The Bahamas.

Smith noted that before the establishment of the Court of Appeal, The Bahamas operated on a two-tiered court system, the Supreme Court and the Privy Council.

“It therefore should not be earth shattering if we revert to a two-tiered system minus the Privy Council with this court at the top, sometimes sitting with a three-judge panel and for the more complex appeals with a five-judge panel.

“I am aware that there would be considerable criticism and disapproval of the idea of giving up the... Privy Council as the final decider of what is or should be.”

Smith said the country must come to the realization and acceptance that The Bahamas cannot indefinitely rely on the good graces of the British government to provide this service.

“A well managed colony has to sooner or later, preferably sooner, take responsibility of choosing the court which will carry its cases,” he said.

Over the years, several observers, including MP Leslie Miller, have repeatedly called for the abandonment of the Privy Council.

Miller said he can’t understand why The Bahamas as an independent country continues to “rely on 10 or 12 old men in London” to decide who lives and who dies.

The calls intensified following the March 2006 Privy Council ruling that the mandatory death sentence in The Bahamas was unconstitutional.

Many condemned men at Her Majesty’s Prisons escaped the death penalty because the Privy Council ruled in 1993 in the Jamaican case of Earl Pratt and Ivan Morgan that it would be cruel and inhumane for prisoners to wait more than five years on death row.

Since the 2006 decision, the Privy Council has made it increasingly difficult for The Bahamas to carry out capital punishment.

In a presentation before the Constitutional Commission in 2013, Justice Anita Allen, president of the Court of Appeal, suggested that the time had come to bring finality to the death penalty issue in The Bahamas, “and to give our citizens the opportunity to decide whether the death penalty should be retained as a mandatory, or as a discretionary punishment, or whether it should be abolished”.

“I encourage you to include the appropriate question on any referendum you may recommend,” she said.

She pointed to the Maxo Tido murder case and the decision rendered by Lord Kerr on behalf of the Board (of the Privy Council).

Lord Kerr opined that even though Tido’s crime was “dreadful” and “appalling,” it was “not one that warranted the punishment of death” as it did not satisfy the criterion of “worst of the worst” and “rarest of the rare” even though the school girl who Tido lured from her home was so tortured and bludgeoned that “her brain tissue was spewed outside of her body.”

Republished with permission of the Nassau Guardian
Reads: 8027

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C. ben-David:

This would be a horrible mistake:

1. Once it is done, there is no turning back if the people change their mind.

2. The population of the Bahamas and the number of lawyers is simply too small in this face-to-face country to guarantee impartiality.

3. This retired judge is so radical in his views that he even rejects the Caribbean Court of Justice as the final court of appeal for the citizens of his country.

4. These same jurists, lawyers, and politicians are great fans of the International Court of Justice and the International Criminal Court but reject the Privy Council for other than legal or fairness issues: the legacy of colonialism; insecurity about their small country status; reverse racism; and unhappiness with certain decisions.

They are not rejecting the British law lords on the basis of their knowledge of the law, their fairness, or their impartiality -- which are the only things that should count when it comes to modern jurisprudence.

5. As for capital punishment, the Bahamas could effect a constitutional amendment to remove the right of the Privy Council to be the ultimate judge in murder charges.


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