By Teni Housty
The word erosion tends to describe a process of wearing away. For some the word has been used to describe the approach of some Caribbean judiciaries to the death penalty. In this context, erosion is used to describe the legal grounds upon which the death penalty has been ruled unconstitutional throughout the Commonwealth by the judiciary unaided by legislative reform. In the Caribbean the forces of erosion have rested primarily on the ground of delay, and on a resistance to the mandatory nature of the death sentence, revealing an increasing regard for the importance of the inherent dignity which we possess as human beings.
These thoughts are not aimed at any particular branch of the administration of justice, but the process of erosion of the death penalty in Guyana raises fundamental questions regarding who is the leader and who is the follower, and begs the further question – will the judiciary continue to be the follower?
There is a certain uniqueness which we, as Guyanese, possess that distinguishes us from our Caribbean neighbours. There is a Guyanese way of doing things. The Guyanese way regarding the death penalty unfortunately has not reflected the heightened sensibilities of judicial awareness in the rest of the Caribbean. For many years, the legal community in Guyana, especially counsel representing persons sentenced to death, has tried to sensitize the members of the judiciary to the powerful waves of erosion which had made such significant inroads into the mandatory death penalty in the rest of the Caribbean. In fact while the grounds advanced by counsel have been rejected by the courts in Guyana, these have been increasingly upheld by Caribbean courts.
Like the seawall (old sturdy, reliable and not constructed by Guyanese), our judiciary remained unaffected and stood strong against the waves of erosion which have been eating away the mandatory death penalty in other Caribbean territories.
In fact, it was not the judges, but rather our parliament, after a first signal that the wave was coming in 2008, which, in 2010, half-heartedly passed amendments to the Criminal Law Offences Act Cap 8:01. These amendments adjusted the mandatory penalty for certain offences, but not all.
These surviving offences have not been touched by the process of parliamentary erosion, and the mandatory death sentence still applies. It remains in the hands of the judiciary to complete the process.
We therefore indicate a possible opportunity for the judiciary in Guyana to take the lead, and to go beyond the choreography which has been set by the parliament. This opportunity can be expressed through the introduction of plea bargaining. In our contribution in the Sunday Stabroek of October 30, we examined the mechanisms of plea bargaining in the administration of justice with a charge to practitioners to explore and embrace plea bargaining. This can be considered the beginning of a wave of erosion in the legal profession.
As our Guyanese society evolves, devolves or revolves, depending on one’s perspective, we wonder whether a sea wall has been constructed around the surviving aspects of the death penalty. What will be the judicial reaction, particularly in offences which survive the erosion of the death penalty?
Will our courts continue to seek refuge behind the virtual judicial sea wall constructed against waves of change? Will a careful system of modern defences be constructed to allow the true tenets of human dignity to be respected and preserved?
The suggestion here is that several lessons can be learnt from the process of erosion of the death penalty: for the judiciary when an opportunity is presented to take the lead, they should embrace it and lead in a manner which a modern judiciary is expected to lead.
