ACTION NO. 296

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BEFORE the Honourable Abdulai Conteh, Chief Justice.

Mr. Kirk Anderson for the Applicants.
Mr. Edwin Flowers S.C., Solicitor General, for the Respondent.

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JUDGMENT

This is a constitutional application by the two applicants in this matter pursuant to section 20 of the Belize Constitution for an Order that:

1. "The sentences of death imposed by the trial Court upon the First and Second Applicants on the 11th day of November 1994 (Mejia) and on 16th day of November 1993 (Guevara), respectively, be commuted to life imprisonment, on the basis that to execute any of the Applicants at any time hereafter would constitute a violation of the Applicant's right pursuant to section 7 of the Belize Constitution, not to be subjected to inhuman or degrading punishment

2. Such further or other relief may be granted as the Court may think just."
   In support of this application each applicant filed two Affidavits dated 30th June 2000 and 13th October 2000 respectively.

Attached to the Applicants' Affidavit of 30 June 2000 are letters dated 5th March 1996 from The Belize Advisory Council to the firm of Solicitors Messrs. Simon Muirhead & Burton of London in the case of the First Applicant and to the firm of solicitors of Messrs. Ingledew Brown Benninson and Garrett, also of London, in the case of the Second Applicant.

The substance of these letters is to inform the Applicants' solicitors that the Belize Advisory Council reiterates its decision that the Prerogative of Mercy should not be exercised in the case of the Applicants.

The Affidavit of the First Applicant dated 30th June 2000 states as follows:

"I, HERMAN MEJIA, presently detained at Hattieville Prison, Labourer, MAKE OATH AND SAY as follows:

1. That I was convicted of Murder in the Supreme Court of Belize on the 16th day of November, 1993, and on that same date, I was sentenced, pursuant to the provisions of section 102 of the Belize Criminal Code, to the mandatory sentence of death.

2. That ever since the 16th day of November, 1993, I have been on "death row" at the Hattieville Prison awaiting my possible execution by the State.

3. That the Government of Belize, in conjunction with the Prison Authorities had, on or about the 25th day of August, 1995, attempted to execute me, but were unsuccessful in doing so, solely due to the fact that just moments prior to my intended hour of execution, the Judicial Committee of the Privy Council, upon the Application of some Attorneys in England who were then acting on my behalf, granted a Stay of Execution in relation to me.

4. That at or around the time when my intended execution was scheduled to have been carried out, I was considerably distressed as I felt my life was about to be terminated and I did not even get to see and/or speak with my own attorney at the time, Mr. Simeon Sampson, S.C. at any time after the death warrant had been read to me, prior to the Stay of Execution having been granted. The experience of having come so close to death has left my extremely traumatized.

5. That in the year 1996, my present Attorney, Kirk B. Anderson, Attorney-at-Law and presently a partner in the Law Firm of Anderson, Usher and Associates, had filed a Constitutional Motion to the Supreme Court of Belize on my behalf, which motion was recorded as Supreme Court Action No. 149 of 1996, in which Motion it was alleged, inter alia, that I had been treated in an inhumane and cruel and degrading manner insofar as the prison conditions which I have endured to date are concerned and also insofar as a determined effort had been made to execute me, notwithstanding the fact that I had notified the then Director of Public Prosecutions, that I intended to appeal to the Judicial Committee of the Privy Council against the decision of the Belize Court of Appeal denying my appeal and upholding my conviction.

6. That I have been advised by Mr. Kirk B. Anderson, Attorney-at-Law, and do verily believe that as soon as this present Constitutional Motion has been filed with the Court, he will immediately thereafter filed a Notice of Discontinuance with respect to Supreme Court Action No. 149 of 1996 which presently, due to the peculiar course which the proceedings have taken over the years, is partially scheduled for hearing in the Supreme Court of Belize and the Court of Appeal of Belize respectively.

7. That presently, there are no proceedings pending before the Judicial Committee of the Privy Council with respect to me, insofar as that Court had, some time ago, denied my application for leave to appeal against my conviction for Murder in respect of which I am presently being detained on 'death row.'

8. That additionally, there is now no longer any "Stay of Execution Order" in effect with respect to me, as my application for Leave to Appeal to the Privy Council against my conviction for Murder was denied thereby rendering the previously issued "Stay of Execution Order" by the Privy Council.

9. That my long stay on death row awaiting my possible execution has caused me considerable mental distress and anguish, particularly, insofar as I was at one point in time prior to now, just moments away from actually being executed after a death warrant had been read to me by the Superintendent of Prisons.

10. That to the best of my knowledge, information and belief, Belize is not presently a signatory to any international human rights conventions, no one in Belize has ever, to my knowledge, ever pursued an alleged human rights violation before an O.A.S. human rights tribunal, and I certainly have never done so.

11. That my case was reviewed and considered by the Belize Advisory Council sometime after I had been found guilty of Murder, and the Belize Advisory Council notified me on the 5th day of March, 1996, or some other date prior thereto that the prerogative of mercy would not be exercised in my favour. A copy of the letter dated 5th March, 1996, informing me of same is now produced and shown to me marked "H.M.1."

His Affidavit of 13th October state as follows:

"I, HERMAN MEJIA, MAKE OATH AND SAY that the Statements contained in Petition hereto annexed are true:

1. It was stated in error in paragraphs 1 and 2 of my Affidavit sworn to on the 30th day of June, 2000 that I was sentenced to death on the 16th day of November, 1993 and have since then been on 'death-row' at the Hattieville prison.

2. That in fact, I was sentenced to death, after having been convicted of Murder on the 11th day of November, 1994.

3. That although my request for clemency to be granted to me has been considered by the Belize Advisory Council, such was done without my having been afforded the opportunity to see and/or consider the materials, including but not limited to the trial Judge's report of my case, which would or ought to have been considered by the Belize Advisory Council in the course of their deciding as to whether or not clemency out (sic) to be granted to me.

4. That I have never taken any allegation of a human rights violation before any international forum whatsoever, as to the best of my knowledge, information and belief, I have no right to do so, since Belize is not, as far as I know a signatory to the United Nations or Organizations of American States human rights conventions."

The Affidavit of the Second Applicant dated 30th June 2000 states as follows:

I, NICHOLAS GUEVARA, presently detained at Hattieville Prison, Labourer, MAKE OATH AND SAY as follows:

1. That I was convicted of Murder in the Supreme Court of Belize (Northern District) on the 11th day of November, 1994, and on that same date, I was sentenced, pursuant to the provisions of section 102 of the Belize Criminal Code, to the mandatory sentence of death.

2. That ever since the 11th day of November, 1994, I have been on "death row" at the Hattieville Prison awaiting my possible execution by the State.

3. That in the year 1996, my present Attorney, Kirk B. Anderson, Attorney-at-Law and presently a partner in the Law Firm of Anderson, Usher and Associates, had filed a Constitutional Motion to the Supreme Court of Belize on my behalf, which motion was recorded as Supreme Court Action No. 149 of 1996, in which Motion it was alleged, inter alia, that I had been treated in an inhumane and cruel and degrading manner insofar as the prison conditions which I have endured to date are concerned.

4. That I have been advised by Mr. Kirk B. Anderson, Attorney-at-Law, and do verily believe that as soon as this present Constitutional Motion has been filed with the Court, he will immediately thereafter filed a Notice of Discontinuance with respect to Supreme Court Action No. 149 of 1996 which presently, due to the peculiar course which the proceedings have taken over the years, is partially scheduled for hearing in the Supreme Court of Belize and the Court of Appeal of Belize respectively.

5. That presently, there are no proceedings pending before the Judicial Committee of the Privy Council with respect to me, insofar as that Court had, some time ago, denied my application for leave to appeal against my conviction for Murder in respect of which I am presently being detained on 'death row.'

6. That my long stay on death row has caused me considerable mental distress and anguish especially since I was aware that on the 25th day of August, 1995, the Government of Belize in conjunction with the prison authorities, had attempted to execute two other death row inmates at the time, one of whom has even had his conviction for Murder overturned on Appeal to the Judicial Committee of the Privy Council and is therefore now serving a sentence of imprisonment for Manslaughter, namely, Pasqual Bull.

7. That to the best of my knowledge, information and belief, Belize is not presently a signatory to any international human rights conventions, no one in Belize has ever, to my knowledge, ever pursued an alleged human rights violation before an O.A.S. human rights tribunal, and I certainly have never done so.

8. That my case was reviewed and considered by the Belize Advisory Council sometime after I had been found guilty of Murder, and the Belize Advisory Council notified me on the 5th day of March, 1996, or (sic) that the prerogative of mercy would not be exercised in my favour. A copy of the letter dated 5th March, 1996, informing me of same is now produced and shown to me marked "N.G.1."

And his Affidavit of 13th October 2000 states:

"I, NICHOLAS GUEVARA, MAKE OATH AND SAY that the Statements contained in Petition hereto annexed are true:

1. That it was stated in error in paragraphs 1 and 2 of my Affidavit sworn to on the 30th day of June, 2000 that I was sentenced to death on the 11th day of November, 1994 and have since then been on 'death-row' at the Hattieville prison.

2. That in fact, I was sentenced to death, after having been convicted of Murder on the 16th day of November, 1993.

3. That although my request for clemency to be granted to me has been considered by the Belize Advisory Council, such was done without my having been afforded the opportunity to see and/or consider the materials, including but not limited to the trial Judge's report of my case, which would or ought to have been considered by the Belize Advisory Council in the course of their deciding as to whether or not clemency out (sic) to be granted to me.

4. That I have never taken any allegation of a human rights violation before any international forum whatsoever, as to the best of my knowledge, information and belief, I have no right to do so, since Belize is not, as far as I know a signatory to the United Nations or Organizations of American States human rights conventions."

CHRONOLOGY OF THE APPLICATIONS

From the evidence in this case, as deposed to in the respective Affidavits of these two Applicants, the following chronology emerges at least up to 30th June 2000 when they filed this constitutional motion.

In the case of the First Applicant he was convicted for murder and sentenced to death on 11th November 1994. Then, in or about 25 August 1995 attempts were made to carry out the sentence of death on him after the warrant of execution had been read to him. But moments prior to the appointed hour of execution, a Stay of Execution was handed down from the Judicial Committee of the Privy Council in London. It is not clear when, but sometime after his conviction and sentence, the First Applicant appealed to the Court of Appeal but his conviction was upheld. Again, it is not clear when, but the Judicial Committee of the Privy Council denied the First Applicant's application for leave to appeal.

On 5th March 1996, the First Applicant was notified that the prerogative of mercy would not be exercised in his favour.

Sometime in 1996, the present Attorney for the Applicant launched a Constitutional Motion on his behalf in Supreme Court Action No. 149 of 1996, alleging among other things, that he had been treated in an inhumane and cruel and degrading manner in so far as the prison conditions he had had to endure and for the efforts made to execute him.

The outcome and status of these proceedings are seemingly indeterminate at the moment, in the words of the Applicant in his Affidavit, "due to the peculiar course which the proceedings have taken over the years (. . . Supreme Court Action No. 149 of 1996) . . . is partially scheduled for hearing in the Supreme Court of Belize and the Court of Appeal respectively."

Since the denial of his application for leave to Appeal to the Judicial Committee of the Privy Council, there is at the moment, no stay of execution in effect with respect to this Applicant.

I must point out here that the learned Solicitor-General commendably gave the assurance that until the final determination of this matter before me, nothing would be done to carry out the sentence imposed on the Applicants.

In effect, therefore, since the conviction and sentence of the First Applicant, a total period of a few days shy of six years had elapsed, when this motion finally came up for argument before me on 8th November 2000.

In respect of the Second Applicant, the position is as follows: He was convicted for murder and sentenced to death on 16th November 1993. Ever since that day he has been on death row at the Hattieville Prison. It is not clear whether, and if so, when, this Applicant appealed his conviction and sentence to the Court of Appeal. The outcome, if any, of such appeal is also not clear from the Affidavit evidence. But the Applicant was notified on 5th March 1996 by the Belize Advisory Council that the prerogative of mercy would not be exercised in his favour.

Sometime in 1996, the present Attorney for this Applicant as in the case of the First Applicant, launched a Constitutional Motion in Supreme Court Action No. 149 of 1996 alleging among other things, that this Applicant had been treated in an inhumane, cruel and degrading manner in relation to the prison conditions which he had endured.

Again, like in the case of the First Applicant, the status and outcome, if any, of these proceedings, are far from clear, save to say as the Applicant deposes ". . . due to the peculiar course which the proceedings (in Supreme Court Action No. 149 of 1996) have taken over the years . . . (they are) partially scheduled for hearing in the Supreme Court of Belize and the Court of Appeal of Belize respectively."

In effect, the Second Applicant has, since the sentence of death was imposed on him on 16th November 1993, been on death row at Hattieville Prison awaiting the possible execution of that sentence. A total period of nearly seven years since that sentence and the argument of this motion has now elapsed.

In my view, two principal issues are agitated by this motion and Affidavits by the Applicants. The first is, whether in view of the time that has elapsed since the imposition of the death sentence on the Applicants, in the case of the First Applicant some six years, and seven years in the case of the Second Applicant, it would now, as they contend, constitute a violation of their rights pursuant to section 7 of the Constitution not to be subjected to inhuman or degrading punishment, if that sentence were to be carried out anytime hereafter.

The second issue in this application is the way the Belize Advisory Council dealt with the Applicant's plea for clemency. Although this is not apparent on the face of the motion dated 30 June 2000, grounding this application, this issue is adumbrated in the respective paragraph 3 of the Applicant's additional Affidavits of 13 October 2000. And was elaborated in the Argument and Submissions of the learned Attorney on their behalf. They contend that when the Belize Advisory Council was considering their plea for clemency, it was duty-bound to have provided them with all of the materials it had before it prior to deciding as to whether or not to grant clemency. The fact that this procedure was not followed in the case of the Applicants, they therefore, contend that at the very least, their cases will have to be looked at again or reconsidered by the Belize Advisory Council before the sentence of death passed on them could lawfully be executed.

THE JURISDICTION OF THE COURT TO ENTERTAIN AND DETERMINE APPLICATIONS

I think it is necessary to make it clear for the avoidance of doubt how and why this Court is entertaining these applications in the circumstances that have given rise to them.

I should make it clear that I sit not as an appellate court to review the sentence passed by this Court itself in the exercise of its original jurisdiction as provided for in sections 17 and 22 of The Supreme Court of Judicature Act - Chapter 82 of the 1980 - 19990 Revised Edition of the Laws of Belize. Indeed, even less do I sit as an appellate court over the decision of the Court of Appeal which dismissed the Applicants' appeals, and most categorically, I do not sit to review the decision of the Judicial Committee of the Privy Council, the highest and final court of appeal for this jurisdiction, which had denied the Applicants' leave to appeal.

I do sit however and derive my jurisdiction in the present application from the Constitution of Belize.

The Applicants complain that in their particular circumstances to execute them at any time hereafter since the sentences of death were passed on them would constitute a violation of their right pursuant to section 7 of the Constitution not to be subjected to inhuman or degrading punishment. This section, of course, is part and parcel of the Fundamental Rights and Freedom regime of the Constitution of Belize which forms Chapter II thereof.

Section 7 of the Constitution states:

"No person shall be subjected to torture or to inhuman or degrading punishment or other treatment."

Section 20 of the Constitution dealing with the enforcement of the protective provisions concerning fundamental rights and freedom provides in so far as is material to these applications as follows:

"20(1) If any person alleges that any of the provisions of sections 3 to 19 inclusive of this Constitution has been, is being or is likely to be contravened in relation to him . . . then without prejudice to any other action with respect to the same matter which is lawfully available, that person . . . may apply to the Supreme Court for redress.

(2) The Supreme Court shall have original jurisdiction -

(1) to hear and determine any application made by any person in pursuance of subsection (1) of this section; and

(2) . . .

may make such declarations and orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 3 to 19 inclusive of this Constitution . . ."

Of course, the fact that the Applicants are prisoners, condemned prisoners for that matter, does not mean that they are outside of the parameters of the Constitutional guarantee of fundamental rights and freedoms. The Constitutional guarantee of these rights and freedoms is available to and applicable to everyone within the jurisdiction of Belize, including prisoners, no matter the offence for which they had been convicted of in the first place. A convicted and sentenced prisoner does not, in my view, forfeit or shed off the protective cloak of the Constitution's guarantee of fundamental human rights, the moment he steps across the threshold of the free world into the confines of Hattieville. Even then, he still carries this protective cloak. He is however to be punished only for the sentence and to the extent of the punishment imposed upon him by the sentence lawfully handed out against him by the Court.

I therefore hold that the Applicants are entitled to approach this Court to ventilate their apprehension of a breach of their Constitutional right and this Court can entertain such a claim.

COMMUTATION OF SENTENCE AND THE PREROGATIVE OF MERCY

It is pertinent, I think, at this stage, to advert to the order sought by the Applicants from this Court. The Applicants are expressly asking this Court to commute to life imprisonment the sentences of death imposed upon them by the trial Court.

The express power of commutation of sentence for any offence under the laws of Belize is, by the Constitution vested in the Governor-General.

Section 52 of the Constitution provides:

"52.-(1) The Governor-General may -

(1) grant a pardon, either free or subject to lawful conditions, to any person convicted of any offence;

(2) 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;

(3) substitute a less severe form of punishment for any punishment imposed on any person for any offence; or

(4) remit the whole or any part of any punishment imposed on any person for any offence or of any penalty or forfeiture otherwise due to the Crown on account of any offence.

(2) The powers of the Governor-General under subsection (1) of this section shall be exercised by him in accordance with the advice of the Belize Advisory Council."

Also, with particular reference to the commutation of sentence of death, section 164 of the Indictable Procedure Code - Chapter 93 of the 1990 Revised Edition of the Laws of Belize provides:

"164. Whenever the Governor, in the name and on behalf of Her Majesty is pleased to extend the royal mercy to any person sentenced to death for any crime by law punishable with death, the Governor may, by warrant under his hand and the public seal, order that that person shall be kept imprisoned during the term of his natural life or for a term of years specified in the warrant, and that warrant shall be as effectual in the law, and shall be carried into execution in the same manner, as if it had been a sentence of the court for that term pronounced by the court against that person and recorded for a crime in respect of which that sentence might have been pronounced by the court."

Thus, ex facie, it would seem that this Court has no role in the commutation of sentences, including the death sentence, or any function as to the prerogative of mercy. In my view, the only nexus, if nexus it be, between this Court and the prerogative of mercy, is as provided for in section 53 of the Constitution and this, I dare say, is only tangential. This provides for a written report in capital cases from the trial judge, or the Chief Justice, if a report from the trial judge cannot be obtained. This report together with such other information derived from the record of the case or elsewhere, as the Attorney-General may require, he shall cause these to be taken into consideration at a meeting of the Belize Advisory Council in order to advise the Governor-General whether to exercise the prerogative of mercy powers granted him by section 52(1) of the Constitution.

I therefore do not sit in judgment to review the refusal of the Applicants' petitions for clemency to the Belize Advisory Council. I sit on these applications expressly by virtue of the enforcement powers of the fundamental rights provisions granted to this Court by the Constitution of Belize in section 20 thereto.

THE GRAVAMEN OF THE APPLICATIONS

The thrust of the Applicants' complaint to this court on the first limb is that in view of the time that has elapsed since the imposition of the sentences of death upon them since their conviction, to execute either of them hereafter, would be in violation of their constitutional right not to be subjected to torture or to inhuman or degrading punishment or other treatment.

As I have earlier mentioned, in the case of the First Applicant, nearly six years had elapsed since his conviction and sentence by the time this motion came up for hearing. In the case of the Second Applicant, the period is seven years.

In short, the first issue to be determined by this Court is whether in view of the time that has elapsed since the conviction and sentencing of the Applicants to death, it would now be cruel and inhuman to still carry out that sentence.

APPLICABLE PRINCIPLES

A series of powerfully reasoned decisions by the Privy Council has, since 1993, established the principle that today there is a link between the time since the imposition of the death penalty and the time of the execution or intended execution of this penalty. This time interval between sentence of death and the carrying it out eventually or measures to do so, has now been judicially determined to have significant constitutional implications for the human rights of the convicted and condemned.

Since the decision of the Privy Council in Pratt and Another v Attorney General and Another (1993) 43 W.IR. 340, where it was held that the execution of the death sentence after unconscionable delay would constitute a contravention of the constitutional protection against inhuman punishment, a number of cases have been decided concerning capital punishment in which the issue of the execution of the death sentence and the length of time that had elapsed since its imposition have loomed large.

In its decision in this case, the Privy Council decided that strict guidelines must be observed by States in the hearing and determination of appeals from persons convicted for murder and sentenced to death. In any case in which execution was to take place more than five years after the sentence of death there would be strong grounds for believing that the delay was such as to constitute 'inhuman and degrading punishment or other treatment'. A State that wished to retain capital punishment must accept responsibility of ensuring that execution followed as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve. Appeals in capital cases must be expedited, with the aim of hearing such appeals within twelve months of conviction. It should be possible to complete the entire domestic appeal process (including an appeal to the Privy Council itself) within approximately two years. It should also be possible for international human rights bodies such as the United Nations Human Rights Committee and the Inter-American Commission on Human Rights, to dispose of petitions in capital cases within eighteen months.

The Privy Council stated at p. 354:

"There is an intrinsic revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this intrinsic revulsion? The answer can only be our humanity. We regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time . . . there are a number of factors that have to be balanced in weighing the delay. If delay is due entirely to the fault of the accused, such as an escape from custody or frivolous and time-wasting resort to legal procedures which amount to an abuse of process, the accused cannot be allowed to take advantage of that delay for to do so would be to permit the accused to use illegitimate means to escape the punishment inflicted upon him in the interest of protecting society against crime.

A much more difficult question is whether the delay occasioned by the legitimate resort of the accused to all available appellate procedures should be taken into account, or whether it is only delay that can be attributed to the shortcomings of the State that should be taken into account."

The Board then concluded on this issue of delay in the execution of a death sentence as follows at p. 362:

". . . that in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute 'inhuman or degrading punishment or other treatment'."

Subsequent decisions by the Privy Council since Pratt and Morgan supra have sought to consolidate the link between delay in the execution of a death sentence and inhuman and degrading punishment for the purpose of the interpretation and enforcement of the constitutional provisions against the latter in jurisdictions in the region which have similar provisions as section 7 of the Constitution of Belize.

Thus in Bradshaw and Another v Attorney-General and Others (1995) 46 W.I.R. 63, from Barbados, the Privy Council held that there was no reason to vary the period of five years after sentence, following which there would be strong grounds for believing that the delay had been such as to constitute inhuman or degrading punishment or treatment and that the time taken to make application to appropriate human rights organizations was properly included in the five-year period.

The Board also held that the minute examination of weeks and even months when delay could be said to have occurred and to have been the responsibility of one or other party, or of both, and duly apportioned was inappropriate, the criterion to be applied was (in the context of the total period of time which had elapsed since the imposition of the sentence) whether the delay was due entirely to the fault of the accused.

Also, in Guerra v Baptiste and Others (1995) 47 W.I.R. 439, from Trinidad and Tobago, the Privy Council held that a long delayed execution, if not stayed would constitute cruel and unusual punishment contrary to constitutional guarantees against such treatment.

The Board also held that the five-year interval between conviction and the execution of the death sentence mentioned in Pratt, (supra) was neither a time limit nor a yardstick, accordingly, an interval between the imposition of the death sentence and the conclusion of the domestic appeal procedure (that is the dismissal of the petition for leave to appeal to the Privy Council) of four years and ten months amounted to cruel and unusual punishment.

Again, in Henfield (Dwight) v Attorney-General (1996) 49 W.I.R. 1, from the Bahamas, the Privy Council held that in a legal system such as that in the Bahamas in which the "target period" for domestic appeals was two years and there was no opportunity of applying to the United Nations Human Rights Committee, the lapse of an overall period of three and a half years following sentence of death gave rise to a presumption of inordinate delay and a breach of the constitutional protection against inhuman or degrading punishment.

In its decision in this case, it is worth pointing out here that the Board stated that following the principle it established in its decision in Pratt (supra) and following this as guidance, "the Jamaican authorities were enabled to act as expeditiously in commuting the death sentences on a substantial number of prisoners on 'death row' to sentences of life imprisonment; and other Caribbean States, whose Constitutions contained provisions similar to section 17(1) did likewise", at p. 7.

I mentioned this because, I am not aware that Belize, certainly a Caribbean State (no matter what some may want to think or believe) but unmistakably with a constitutional guarantee against the infliction of inhuman or degrading punishment or other treatment (section 7) followed this guidance, I however have no evidence on this.

What also is clear from the ratio in Pratt and Morgan (supra) and similar line of cases is that today there is an unmistakable trend that delay in the execution of the death sentence, once appellate proceedings have been concluded and petitions to international human rights bodies have been determined, will engage the constitutional protection against inhuman or degrading punishment or other treatment.

It is against these emergent principles evolved by successive decisions of the Privy Council that the Applications of the Applicants should in my view, be properly viewed. The Privy Council is, of course, the final Court for Belize as it is for almost all Commonwealth countries in the region. The doctrine or principle of stare decisis apart, it is unarguable that the views and decisions of the Board of the Judicial Committee of the Privy Council deserve the utmost respect and adherence.

The effect of delay in the execution of the death sentence was again reaffirmed by the Privy Council recently in Neville Lewis and Others v The Attorney-General and Another (Privy Council Appeals Nos. 60 of 1999, 65 of 1999, 69 of 1999 and 10 of 2000 unreported). After giving a table of the time scale showing the delay since the conviction of the appellants in this case, the Board simply concluded:

". . . in four of the cases the period of five years referred to in Pratt has already elapsed. In McLeod's case (one of the appellants) four years and ten months, and in Brown's case (another of the appellants) four years and eight months in prison following sentences of death have elapsed but it is inevitable that by the time appellants' advisers have been able to see the material which was before the Privy Council of Jamaica and to make representations on it . . . the period of five years will have elapsed. In Brown's case the overall length of time from first conviction would make it inhuman treatment now to execute him in any event."

Indeed, beyond the region and in some jurisdictions within the Commonwealth, Courts have quashed death sentences imposed on appellants because of the delay in executing those sentences. In Vatheeswaran v The State of Tamil Nadu AIR 1983 S.C. 361, the Supreme Court of India quashed one such sentence on an appellant who had spent eight years awaiting execution. In other cases, the same Court held that according to the circumstances of particular cases, delays of less than three years and of eight years, were impermissible and excessive - see Javed Ahmed v State of Maharastra 1985 S.C. 231, and Madhu Meta v India (1989) 3 S.C.R. 775 and Triveniben v The State of Gujurat (1992) LRC (Const.) 425.

Also, in the Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General (1993) 2 LRC 279, the Supreme Court of Zimbabwe, after a survey of Indian, United States and other precedents, concluded that delays of fifty-two months and seventy-two months in carrying out death sentences on prisoners held in demeaning physical conditions, were in breach of the constitutional guarantee of protection against inhuman and degrading punishment or such treatment.

THE DELAY INVOLVED IN APPLICATIONS

From the evidence in this case the period of delay involved since conviction and sentences of death were passed on the Applicants, as can be garnered from their Affidavits is that of over five years in the case of the First Applicant and nearly seven years in the case of the Second Applicant.

The delay in this case, I am perfectly satisfied, is in no way attributable to either Applicant. Neither of them escaped from custody which could be said to have caused delay in carrying out the sentences imposed on them; again, neither of them engaged in what has been described as frivolous and time-wasting appellate procedures that were really an abuse of process. On the contrary, all they did was to have recourse to proper appellate and domestic petition procedures. There was not, in their case, recourse by petition to international human rights bodies, which could conceivably have added to the passage of time since their sentence and their constitutional application.

From this evidence therefore, and on the basis of the judicial authorities recounted in this judgment, I am in the circumstances, ineluctably driven to hold that, to carry out the sentences of death now on either of these two Applicants, will constitute a violation of their right pursuant to section 7 of the Constitution.

What is the effect of this finding by me? I turn to section 20 of the Constitution for an answer. The Applicants have prayed this Court to commute to life imprisonment the sentences of death imposed on each of them following conviction for murder.

Although I have said earlier in this judgment that this Court ex facie, does not have a role in commutation of sentences, including the death sentence, I am certain that from the ambit of section 20(2) which empowers this Court to -

". . . make such declarations and orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of this Constitution",

this Court can grant the relief sought: An order of commutation to life imprisonment of the sentences of death imposed upon the First and Second Applicants on 11th November 1994 and on 16th November 1993 respectively.

And I so Order, fortified by the ancient maxim ubi jus ibi remedium. In all the circumstances therefore I grant the Order sought by the Applicants for the commutation of their death sentences to life imprisonment.

Having disposed of the first and principal issue raised by this Application, it is not, in my view, necessary to go on to analyse and determine the second issue, viz, that they the Applicants ought to have been provided with the materials put before the Belize Advisory Council when that body was considering their pleas for clemency.

It sufficies to say that on the authority of Neville Lewis (supra) the Privy Council has held that there is a right to disclosure of all materials before a Mercy Committee, which would be the Belize Advisory Council in the case of Belize, when this body deliberates on whether to recommend mercy. The submission therefore by the Applicants that because this was not done when the Belize Advisory Council considered their cases for mercy, this body would therefore have to reconsider their cases, does seem to have some merit. But as I have said, in view of my finding on the first issue that because of the delay that has ensued since the imposition of the death sentences on these Applicants, it would now constitute an inhuman or degrading punishment or treatment to carry out hereafter those sentences, it is not therefore necessary for me to determine this second issue of the need for reconsideration by the Belize Advisory Council of the pleas for clemency by the Applicants.

In the event therefore, the sentences of death passed on the Applicants are hereby commuted to imprisonment for life of each of the Applicants.

I must in conclusion acknowledge the industry of Mr. Kirk Anderson, the learned Attorney for both Applicants in chasing up the relevant judicial authorities on the issues involved in this application and the assistance he proffered to the Court. I commend him also for the able way he presented the Applicants' case. I must also record the candour of Mr. Edwin Flowers, the Solicitor-General, who with the courage and integrity to be expected of a Senior Law Officer of the Crown, informed the Court that in all the circumstances of this application, there would be no opposition and that it was the Attorney-General's position that the death penalty against either Applicant would not be pursued, and that it was a matter for the Court to decide.

I have accordingly decided in the light of the law and authorities available to this Court that in all the circumstances, to execute the sentences of death imposed on each Applicant over five years ago, would now offend against the Constitutional protection not to be subjected to inhuman or degrading punishment or other treatment.

Accordingly, the death sentence imposed on each Applicant is hereby commuted to life imprisonment.

A. O. CONTEH
Chief Justice

DATED: 11th June 2001.