Yaseen et Al v Attorney-general et Al
| Jurisdiction | Guyana |
| Judge | Kissoon, J.,Churaman, J.A.,Bishop, C.,Bishop, C.J.,Persaud, J.A.,TROTMAN, J. |
| Judgment Date | 14 May 1996 |
| Neutral Citation | GY 1996 CA 1 |
| Docket Number | Civil Appeals Nos. 19 and 20, 1996 |
| Court | Court of Appeal (Guyana) |
| Date | 14 May 1996 |
Court of Appeal
Bishop, C., Churaman, J.A., Persaud, J.A., Kissoon, J.A. and Trotman, J.A. (Actg.)
Civil Appeals Nos. 19 and 20, 1996
Doodnauth Singh S.C. ( Vic Puran & Jainarayan Singh (Jnr) with him) for the appellants
The Attorney General in person
Miss Yonette Cummings, Dep. DPP (Ag), for 2nd respondent
Fitz Peters, Dep. Sol. General, for 3rd respondent.
Constitutional law - Fundamental rights and freedoms — Whether appellants’ right to a fair hearing and to be tried within a reasonable time had been violated — Articles 141(1) and 144(1) of Guyana Constitution —
Jurisdiction - Court of Appeal — Finding that the court has the power to allow an appeal from a conviction of murder and set an applicant free — Court can also vary conviction from one of murder to manslaughter but has no power to substitute a term of imprisonment for a death sentence.
Life is sacred. Article 138(1) of our Constitution protects the sanctity of and the right to life.
It provides: “No person shall be deprived of his life intentionally”. However, that right is not absolute. Article 138(1) goes on to provide one exception, i.e. “Save in the execution of the sentence of the court in respect of an offence under the Laws of Guyana, of which he has been convicted.”
A court has no authority to impose any other penalty on a person convicted of the offence of murder, but death. The death penalty is mandatory.
Section 100 of the Criminal Law Offences Act Cap 8:01 states: “Anyone who commits murder shall be guilty of a felony and liable to suffer death as a felon.”
Section 11 of the said Act, recognises seven different kinds of punishment under the Act, including (vi) imprisonment and (vii) death.
The constitution itself accepts the death penalty as a form of punishment. Article 190(1) provides: “Where under the Law of Guyana any person has been sentenced to death by any court other than a court martial, for any offence against the law …
The manner of execution under our law is by hanging. There has been no argument in this case, and rightly so, that the sentence of death per se is unconstitutional, and the conviction and sentence upon conviction, in like manner, are not challenged. That matter was dealt with in several cases. Warren, C.J. in the case of Trop v. Dulles, 356 US 99, stated
“Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment - and they are forceful - the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.”
In Bachan Singh v. State of Punjab AIR (1980) SC 898, it was observed at p 929:
“For the purposes of testing the constitutionality of the impugned provision as to death penalty in Section 302 Penal Code; on the ground of reasonableness, in the light of Articles 19 and 21 of the constitution, it is not necessary for us to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and the Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioners’ argument that retention of the death penalty in the impugned provision, is totally devoid of reason and purpose.”
Although life is sacred, death is inevitable. It may come in different forms - naturally, by fire, by water or by the hangman's noose. No-one knows the time or place of his death, except t’ he person who was sentenced by a court to be executed and against whom the Presidential Warrant has been issued. Liacos, J. in the case of Attorney for Suffolk District v. Watson Mass 411 N E 2 D 1274 (1980) at 1292 remarked:
“The condemned must confront this primal terror directly and in the most demeaning circumstances. A condemned man knows, subject to the possibility of successful appeals or commutation, the time and manner of his death. His thoughts about death must necessarily be focussed more precisely than other people's. He must wait for a specific death, not merely expect death in the abstract. Apart from cases of suicide or terminal illness, this certainty is unique to those who are sentenced to death.”
I would like to add to that quote: “which is of his own making”, as it is often forgotten that the condemned man suffers death, not because of the wish of the state to execute him and deprive him of his human rights, but because it is the penalty he suffers for committing a major human wrong. The condemned man does not necessarily surer agony and debasement as from the date of his sentence he has time to reflect and repent and since he is aware that his time is limited, prepare to meet his maker in peace. He may require some extended time to complete his repentance. Their Lordships in the case of Guerra v. Baptiste & Others [1995] 4 All ER 583, recognised the spiritual needs of the condemned. At p 596 they stated
“Their Lordships are of the opinion that justice and humanity require that a man under sentence of death should be given reasonable notice of the time of his execution. Such notice is required to enable a man to arrange his affairs, to be visited by members of his family before he dies, and to receive spiritual advice and comfort to enable him to compose himself, as best he can, to face his ultimate ordeal.”
The history of this matter commenced on March 19, 1987, when the victim, the brother of Abdool Saleem Yaseen, was blasted to death by gunshot in the wee hours of the morning, while he was in bed. Yaseen was arrested on March 24, after Thomas had been arrested the previous day. They were charged jointly on March 24, and the Preliminary Inquiry commenced on July 27. They were both committed to stand trial at the next practicable sitting of the Essequibo Assizes. In this matter there were two trials and one aborted trial.
The first trial commenced in May 1988. They were both convicted and sentenced to the mandatory penalty of death, on June 3, 1988. They both appealed to the Court of Appeal which allowed the appeal on October 25, 1990, and ordered a retrial.
The retrial commenced in June 1991, but it was aborted by Justice Burch-Smith, on his receiving reports of attempts by relatives of the appellant Yaseen, to tamper with the jury. The appellants’ new retrial commenced before Ms C Singh, J. in October 1992, and on being found guilty by the jury they were sentenced to death on December 4, 1992. They both gave notice of appeal on December 6, 1992. The Appeal came up for hearing in April 1994 and was dismissed on June 29, 1994, when the sentences of death were confirmed. The dismissal of these appeals exhausted all the legal remedies available to the appellants in any attempts to challenge the validity of their trials and convictions.
In July 1994, they both petitioned the President for clemency. Their petitions were rejected on December 18, 1995. On February 1, 1996, death warrants were read to the appellants who were to be executed on February 5, 1996.
As a result of the Presidential warrants having been read to them, the appellants initiated a new round of legal steps to test the constitutionality of carrying into effect that conviction and execution. They filed for:
-
(a) a declaration that the appellants’ fundamental rights under Articles 141(1) and 144(1) of the Constitution of Guyana had been violated.
-
(b) a declaration that as a result of the above-mentioned violations, an order staying the execution of the prisoners pending the hearing and determination of the motion, should be granted.
However, although Small, J. had no difficulty in making an order in terms of (b) above, and dismissed the substantive order from which this appeal arose’ I am after hearing arguments certain that he would have had in mind the importance of the constitutional motion before him, and the fact that the execution should not be carried out until the final determination of the substantive declaration sought in (a) above. This court had no difficulty in granting the order sought in (b) above, when requested, and the first respondent willingly consented to the order.
Although the conservatory order was granted, some courts may not think it necessary. I cannot help but quote their Lordships in the case of Reckley v. Minister of Public Safety and Immigration & Others [1995] 4 All ER 8 at 12
“Their Lordships accept that, if the constitutional motion raises a real issue for determination, it must be right for the courts to grant a stay prohibiting the carrying out of a sentence of death, pending the determination of a constitutional motion. But it does not follow that there is an automatic right to stay in all cases. If it is demonstrated that the constitutional motion is plainly and obviously bound to fail, those proceedings could be vexatious and could be struck out. If it can be demonstrated to the court from whom a stay of execution is sought, that the constitutional motion is vexatious as being plainly and obviously ill-founded, then in their Lordships’ view it is right for the court to refuse a stay even in death penalty cases.”
There will be cases which are frivolous which will come before our courts and which will be readily dismissed, but our courts must be cautious in striking out and refusing stays, as it is often cited, “the mandatory penalty of death is irreversible.”
Mr. Singh, S.C. argued that there was a breach of Article 144(1) of the constitution which provides “If any person is charged with a criminal offence then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a...
To continue reading
Request your trial