[2018] CCJ 19 (AJ)

IN THE CARIBBEAN COURT OF JUSTICE

ON APPEAL FROM THE COURT OF APPEAL OF BARBADOS

BETWEEN

JABARI SENSIMANIA NERVAIS APPELLANT

AND

THE QUEEN RESPONDENT

AND

CCJ Appeal No. BBCR2017/003

BETWEEN

DWAYNE OMAR SEVERIN APPELLANT

AND
THE QUEEN RESPONDENT

[Heard together on 25th day of January 2018]

Before The Right Honourable Sir Dennis Byron, President

JUDGMENT SUMMARY

This summary is not intended to be a substitute for the reasons of the Caribbean Court of Justice or
to be used in any later consideration of the Court’s reasons.
 [1] Jabari Sensimania Nervais and Dwayne Omar Severin (“the Appellants”), each sought leave to
appeal to the Caribbean Court of Justice on the basis that his conviction was unsafe and the
mandatory sentence of death was unconstitutional. The CCJ granted leave to appeal and leave
to appeal as poor persons. The appeals against convictions which were heard separately were
dismissed. The appeals against sentence were heard together and are the subject of this
summary.

[2] Before examining the issues, the CCJ considered the background against which the appeals
were to be determined. The CCJ noted that when the appeals were heard at the Court of Appeal,
the late DPP, Mr. Charles Leacock QC, arguing on behalf of the State, urged the court to find
that the imposition of the mandatory death penalty for convictions of murder in Barbados,
without mitigation and individual sentencing, was patently unconstitutional. While the Court
of Appeal acknowledged that the mandatory death penalty was inconsistent with and in
violation of international human rights law and was an inhuman and degrading punishment,
the law that provided for it predated the Constitution and was accordingly saved from challenge
as had been decided by the Privy Council in Boyce and Joseph v The Queen1. This was a
decision by which that court was bound until such time as the decision was overruled by the
CCJ.

[3] The CCJ concluded that Mr. Leacock’s submissions raised two important points; 1) that a
mandatory death penalty without the opportunity to individualise the sentence to fit the
particular circumstances of the offence or offender, contravened provisions of the Constitution;
and 2) that Barbados had accepted that it had an obligation to modify its legislation to remove
the mandatory imposition of the death penalty in conformity with provisions of the Inter
American Convention of Human Rights (“the Convention”) which it had ratified. Examining
these propositions, the CCJ found that Barbados had accepted and had given undertakings to
the Inter American Court of Human Rights (“the IACtHR”) to comply with its ruling in Boyce
et al v Barbados2 and Dacosta Cadogan v Barbados3 that the mandatory death penalty violated
Article 2 of the Convention and that section 26 of the Constitution violated in particular the
right to seek judicial protection against violations of the right to life.4 Further, in compliance

1
[2004] UKPC 32
2
Judgment of November 20, 2007 (Preliminary Objection, Merits, Reparations and Costs)
3
Judgment of September 24, 2009 (Preliminary Objections, Merits, Reparations, and Costs)
4
Ibid

This summary is not intended to be a substitute for the reasons of the Caribbean Court of Justice or
to be used in any later consideration of the Court’s reasons.
 with these rulings, the Cabinet of Barbados had caused to be introduced in the House of
Assembly legislation to, inter alia remove the provision authorising the mandatory sentence
of death in section 15 of the Constitution; amend section 26 to redefine the effect of the
existing law in relation to the fundamental rights provisions and to abolish the mandatory
imposition of the penalty for death for the offence of murder.5

[4] The CCJ also noted that Barbados had given similar undertakings before it in the appeal against
sentence of Clyde Anderson Grazette (“Grazette”) in 2009 where a consent order had been
issued adjourning the hearing until such time as the State of Barbados had complied with the
IACtHR decision of Boyce et al v Barbados in relation to the mandatory death penalty and the
immunising effect of section 26 of the Constitution on existing laws. The CCJ noted that while
the parties had not taken advantage of the opportunity to submit a joint paper inter alia on the
State of Barbados’s position on the mandatory death penalty, the information presented
indicated that of the 31 persons sentenced to death between the period 2000-2017, not one
person had been executed. In fact, of those 31 persons, 27 had had their sentences commuted
to life imprisonment and of those, 24 have had the remainder of their sentence remitted and
have been released from prison. In view of this, the CCJ found it was indisputable that Barbados
had through its actions acknowledged that the mandatory sentence of death under section 2 of
the OAPA and the immunising effect of section 26 violated its obligations under international
law and had given undertakings to the IACHR and to the CCJ to rectify these violations which
was reflected in the Barbados Privy Council’s consistent commutation of the mandatory death
penalty sentence when imposed.

[5] Against this background the CCJ considered the first issue of the enforceability of section 11
of the Constitution. The CCJ held that section 11 was separately enforceable. In coming to this
conclusion, the CCJ rejected the Crown’s contention that section 11 was a preamble. The
Crown had relied on Newbold v Commissioner of Police & Ors6 and the line of authorities
decided by the Privy Council which supported this view. The CCJ examined this line of
authorities and found that they gave an unusual meaning of the word “preamble”. Relying on
the definition of preamble by Halsbury7, the CCJ found that the location of section 11 militates
against it being categorised as a preamble as it is not a preliminary statement at the beginning

5
Cabinet Note (2014) 73/AG.2, M.P. 2800/8/9/8 Vol. I, January 30, 2014
6
(2014) 84 WIR 8
7
Halsbury’s Law of England, 3rd Edition, Vol. 31, p.370

This summary is not intended to be a substitute for the reasons of the Caribbean Court of Justice or
to be used in any later consideration of the Court’s reasons.
 of the Constitution. Instead, section 11 is found in the substantive portion of the Constitution.
This is buttressed by the fact that Barbados has a preamble which is located before section 1 of
the Constitution which embodies the fundamental values and the philosophy on which the
Constitution was based.

[6] Next the CCJ examined section 11of the Constitution and found that it is divided into two parts.
The first, commenced with the word “whereas” and stated the rights to which the people of
Barbados are entitled in clear and unambiguous terms. It is the only place in the Constitution
that declared those rights. The CCJ reviewed the Privy Council decisions of Olivier v Buttigieg8
from Malta and Société Union Docks v Government9 from Mauritius which had started the
judicial debate on the preamble point where their Lordships had held respectively, that where
the provision began with “whereas” it was preambular in nature and where it did not, it was
separately enforceable. The CCJ considered the provisions in the Maltese and Mauritius
Constitutions and held that it could not see any reason to attribute such different meanings to
the sections. In such circumstances, the CCJ held that it could find no justification for
attributing a meaning which deprived section 11 of any binding effect. The second part of
section 11 declared sections 12-23 shall have effect for the purpose of affording protection to
those rights and freedoms subject to such limitations of that protection as are contained in those
provisions, being limitations designed to ensure that the enjoyment of the rights conferred in
section 11 does not prejudice the rights and freedoms of others or the public interest. The CCJ
held that the language was clear and unambiguous; section 11 declared the rights and sections
12-23 afforded protection for those rights subject to such limitations as they authorised.

[7] The CCJ also rejected the Crown’s contention that section 11 was a preamble because it was
excluded from sections 24 and 26 of the Constitution. The CCJ found that in relation to section
26, an interpretation which is least restrictive and affords every citizen of Barbados the full
benefit of the fundamental rights and freedoms should be given. The CCJ then considered
section 24 and held that from the words of the section, it could be seen that the Constitution
itself envisaged that section 24 was not the only method of seeking redress. Relying on the
earlier decision of A-G v Boyce and Joseph,10 the CCJ reiterated that independently of section
24, the Court had an inherent power to grant relief which was underscored by the words

8
[1966] 2 All ER 459
9
[1985] AC 585
10
[2006] CCJ 3 (AJ)

This summary is not intended to be a substitute for the reasons of the Caribbean Court of Justice or
to be used in any later consideration of the Court’s reasons.
 “without prejudice” in section 24 (1) and the proviso which immediately followed subsection
24 (2).

[8] The CCJ then considered the second issue of whether section 2 of the OAPA breached section
11 (c) of the Constitution. The Court examined the reach and content of the right to protection
of the law and found that right to protection of the law was the same as due process which
connotes procedural fairness and invoked the concept of the rule of law. Protection of the law
is therefore one of the underlying core elements of the rule of law which is inherent in the
Constitution and affords every person, including convicted killers, adequate safeguards against
irrationality, unreasonableness, fundamental unfairness or arbitrary exercise of power.

[9] The CCJ found that the mandatory death penalty deprived a court of the opportunity to exercise
the quintessential judicial function of tailoring the punishment to fit the crime. The CCJ was of
the view that the right to protection of the law or due process included the right to a fair trial.
The trial process did not stop at conviction of the accused, as sentencing and mitigation were
congruent components of a fair trial. As such, the principle of a fair trial must be applied to the
sentencing stage and includes the right to appeal or apply for review by a higher court
prescribed by law. The right to a fair trial as an element of protection of the law is one of the
corner stones of a just and democratic society without which the rule of law and public faith in
the justice system would inevitably collapse. The CCJ therefore held that the mandatory nature
of death penalty in section 2 of the OAPA placed it in violation of the right to protection of the
law as guaranteed by section 11 (c) of the Constitution.

[10] The CCJ considered the third issue, whether section 2 of the OAPA could be modified. The
CCJ rejected the Crown’s proposition that was espoused in the Privy Council case of Boyce
and Joseph where their Lordships held that section 26 (1) precluded the Court from holding
anything contained in or done under the authority of any existing law to be inconsistent with
the human rights sections of the Constitution. So that section 1 is ousted and the occasion to
modify never arises. The CCJ examined section 26 of the Constitution and found that it was an
unacceptable diminution of the freedom of the newly independent people who fought for that
freedom with unshakable faith in fundamental human rights. Further, it was incongruous that
the same Constitution which guaranteed that every person in Barbados is entitled to certain
fundamental rights and freedoms, would deprive them in perpetuity from the benefit of those
rights purely because the deprivation existed prior to the adoption of the Constitution. Such a

This summary is not intended to be a substitute for the reasons of the Caribbean Court of Justice or
to be used in any later consideration of the Court’s reasons.
 restrictive meaning could not be ascribed to section 26, as to do so would forever frustrate the
basic underlying principles that the Constitution is the supreme law and that the judiciary is
independent.

[11] The CCJ also rejected the Crown’s contention that section 4(1) of the 1966 Independence Order
was spent and could not be relied on to modify section 2 of the OAPA. What was spent in the
Independence Order was the Governor General’s extraordinary law-making power to make
such amendments as were necessary to bring existing law into conformity with the
Constitution. Subsection 4(1) did not impose any period of limitation on the general power to
modify. Section 4 (1) of the Independence Order prescribed a mandatory direction to construe
the existing laws to bring them into conformity.11 The method of bringing into conformity is
not limited to modification and adaptation, but it includes the wide powers of qualifications
and exceptions. No existing law is excluded from the requirement of being brought into
conformity. The Constitution is the supreme law and the laws in force at the time when it came
into existence must be brought into conformity with it. Accordingly, the CCJ held that where
there is a conflict between an existing law and the Constitution, the Constitution must prevail,
and the courts must apply the existing laws as mandated by the Independence Order with such
modifications as may be necessary to bring them into conformity with the Constitution.

[12] Having found section 2 of the OAPA to be inconsistent with section 11 (c) of the Constitution,
the appeals could have accordingly been determined. However, for completeness, a fourth issue
was considered; whether section 2 of the OAPA breached sections 12(1), 15(1) and 18(1) of
the Constitution. In relation to sections 12(1), the CCJ found that the mandatory death penalty
breached the right to not be deprived of life save in execution of the sentence of a court in
respect of a criminal offence, as it reduced the Court’s sentencing role to rubberstamping the
dictates of the Legislature and therefore breached the doctrine of separation of powers. The
CCJ also found that the right to a fair trial as guaranteed by section 18(1) and the right not to
be subjected to inhuman or degrading treatment as guaranteed by section 15 (1) were also
breached. In relation to section 15(1), the CCJ relying on Bowe and another v R12, found that
the mandatory death penalty for the crime of murder pursuant to section 2 of the earlier
Offences Against the Person Act of 1868 was modified in 1966 when Barbados became

11
Bowe v The Queen [2006] UKPC 10, [2006] 1 WLR 1623, [25]
12
Ibid

This summary is not intended to be a substitute for the reasons of the Caribbean Court of Justice or
to be used in any later consideration of the Court’s reasons.
 independent so that when the mandatory death penalty was reintroduced in the 1994 Act, what
was saved was the discretionary sentence of death for the crime of murder. Thus, at the time of
the 2002 amendment to section 15 of the Constitution, there was never a mandatory sentence
of death for the crime of murder in Barbados. Accordingly, the amendments made to section
15 of the Constitution were inapplicable to the instant appeals. The CCJ observed that in such
circumstances, it was unnecessary to rule on the Constitutionality of the 2002 amendment
especially as there were no such submissions before the Court.

[13] In a separate judgment, Justice Anderson agreed that the mandatory death penalty could not
properly be imposed on the Appellants. However, he disagreed with the majority’s position
that: 1) section 11 of the Constitution was independently enforceable and; 2) that section 4 of
the 1966 Independence Order could be used to modify section 2 of the OAPA. He was of the
view that when the Chapter of the Constitution which addresses the Bill of Rights is examined,
what emerges from the underlying structure is that section 11 was not intended to be
enforceable independent of the rest of the Chapter. Section 11 is a perambulatory declaration
of the rights and freedoms to which every person in Barbados is entitled. These rights are
elaborated in sections 12-23 with section 24 providing a remedy for breach of those provisions;
no remedy is specified for breach of section 11. He noted that this position is supported by
several past decisions and was authoritatively affirmed in Newbold v Commissioner of Police
& Ors13.

[14] Justice Anderson aJCCJ also found that the majority could not properly rely on section 4 (1) of
the Independence Order to modify section 2 of the OAPA. He was of the view that it was
difficult to believe that section 4 (1) of the colonial Independence Order was intended to be a
permanent source of power for modification, adaptation or qualification of laws saved by the
Constitution. When Barbados became independent the Constitution created a new legal order
which was “unchallengeable by any colonial legislation not saved by the Constitution.” In this
new legal order, the Constitution had no rival. As such, a clause in the pre-Independence Order
could not prevail over provisions in the Constitution. Justice Anderson JCCJ also found that
there were practical difficulties in using the Independence Order since section 4 (1) required
that the right being asserted must have crystallised at the date of independence. The section
could therefore not protect those rights which emerged after independence.

13
Supra (n.6)

This summary is not intended to be a substitute for the reasons of the Caribbean Court of Justice or
to be used in any later consideration of the Court’s reasons.
[15] In those circumstances, Justice Anderson JCCJ would have allowed the appeal on the basis that
the power to sentence was an exclusively judicial power which was protected against legislative
encroachment in the form of section 2 of the OAPA by the separation of powers doctrine. He
considered this approach to be more consistent with facilitating respect for, and adherence to,
the ongoing evolution in the protection of human rights regarding permissible sentences.

[16] Accordingly, the appeals were unanimously allowed, and the Court ordered that the Appellants
be expeditiously brought before the Supreme Court for resentencing. Further, the Court by a
majority, declared that Section 2 of the OAPA was inconsistent with sections 11 (c), 12 (1) 15
(1) and 18 (1) of the Constitution of Barbados to the extent that it provides for a mandatory
sentence of death.

This summary is not intended to be a substitute for the reasons of the Caribbean Court of Justice or
to be used in any later consideration of the Court’s reasons.