Bahamas 12.067

REPORT Nº 48/01

CASE 12.067, MICHAEL EDWARDS

CASE 12.068, OMAR HALL

CASE 12.086, BRIAN SCHROETER AND JERONIMO BOWLEG

THE BAHAMAS

April 4, 2001

I. SUMMARY

1. This Report concerns three petitions which were presented to the Inter-American Commission on Human Rights (hereinafter referred to as “the Commission”) by Messrs. Burton Copeland Cameron McKenna, and Lovell White Durant, Solicitors from London, United Kingdom, (hereinafter referred to individually and collectively as “the Petitioners”) on behalf of Messrs. Michael Edwards, Omar Hall, Brian Schroeter and Jeronimo Bowleg, (hereinafter referred as the “condemned men”) by letters dated November 5, 1998, December 3, 1998, and January 7, 1999. The three petitions allege that the Commonwealth of The Bahamas (hereinafter referred to as “the State” or “The Bahamas”) violated the human rights of the condemned men under the American Declaration of the Rights and Duties of Man (hereinafter referred to as “the Declaration”).

2. The table below depicts the names of the condemned men, the names of the Petitioners, the dates on which the Commission opened the cases in respect of the condemned men, and Articles of the Declaration alleged to have been violated, and the dates on which the Commission found the cases to be admissible.

	Case number	Petitioners	Victim	Date case opened	Date found Admissible	Articles of Declaration
1	12.067	Burton Copeland	Michael Edwards	December 10, 1998	March 7,2000, 106^th Session, Report Nº24/00[1]	I, II, XVIII, XXVI
2	12.068	Cameron McKenna	Omar Hall	December 10, 1998	March 7, 2000, 106^th Session, Report Nº 25/00[2]	I, II, XVII, XVIII, XXVI
3	12.086	Lovell White Durant	Brian Schroeter, Jeronimo Bowleg	January 19,1999	September 27, 1999, 104^th Sessions, Report Nº 123/99[3]	I, II, XVII, XVIII, XI, XXV, and XXVI

3. In these three cases, the condemned men were tried, convicted, and sentenced to death by hanging by The Bahamas, pursuant to Sections 11 and 312 of its Penal Code.[4] The Petitioners in these cases alleged that the State violated the condemned men’s rights under the American Declaration on one or more of the following grounds, further particulars of which are provided in Part III.A of this Report:

a. Violations of Articles I, II, XVII, XVIII, and XXVI of the Declaration respecting their rights to life, equality before the law, to recognition of juridical personality and civil rights, to humane treatment, to a fair trial and to due process of law; relating to the mandatory nature of the death penalty for the crime of murder in The Bahamas, and the procedure for granting amnesty, pardon or commutation of sentence in the State.

b. Violations of Articles XVIII, XI, XXV, and XXVI of the Declaration, with respect to their rights to a fair trial and due process of law in relation to both pre-trial and post trial detention.

c. Violations of Articles XXV and XXVI of the Declaration, regarding their rights to humane treatment, concerning their conditions of detention.

d. Violations of Articles XVIII, and XXVI, with respect to their rights to a fair trial, relating to the adequacy and preparation of their legal representation and the manner in which their criminal proceedings were conducted.

e. Violations of Articles XVIII and XXVI, concerning their rights to a fair trial, in respect of the unavailability of legal aid for Constitutional Motions in The Bahamas.

4. The Commission declared that it was competent to examine these three cases, and declared the cases admissible pursuant to Articles 37 and 38 of its Regulations, at its 104^th and 106^th Regular Sessions respectively. Messrs. Schroeter’s and Bowleg’s case, Nº 12.086, Report Nº 123/99,[5] was declared admissible at the Commission’s 104^th Regular Sessions. Mr. Edwards’ case Nº 12.067, Report Nº 24/00,[6] and Mr. Hall’s case Nº 12.068, Report Nº 25/00[7] were declared admissible at the Commission’s 106^th Regular Sessions.

5. As a preliminary matter, the Commission decided to consolidate these three cases for the purposes of this Report pursuant to Article 40(2) of the Commission’s Regulations because the cases involve similar facts and substantially the same issues under the Declaration.

CONCLUSIONS

The Commission, on the basis of the information presented, and the due analysis under the American Declaration, concludes as follows:

1. The State is responsible for violating Articles I, XVIII, XXV, and XXVI of the American Declaration, by sentencing Messrs. Edwards, Hall, Schroeter and Bowleg, to a mandatory death penalty.

2. The State is responsible for violating Messrs. Edwards’, Hall’s, Schroeter’s and Bowleg’s rights under Article XXIV, of the American Declaration, by failing to provide the condemned men with an effective right to petition for amnesty, pardon or commutation of sentence.

3. The State is responsible for violating Messrs. Hall’s, Schroeter’s and Bowleg’s rights under Articles XI, XXV, and XXVI of the American Declaration, because of the inhumane conditions of detention to which the condemned men were subjected.

4. The State is responsible for violating Messrs. Edwards’, Hall’s, Schroeter and Bowleg’s rights under Articles XVIII, and XXVI of the American Declaration, by failing to make legal aid available to the condemned men to pursue Constitutional Motions.

5. The State is responsible for violating Messrs. Schroeter’s and Bowleg’s rights to be tried without undue delay under Article XXV of the Declaration.

6. The Commission finds no violation of Articles XXV and XXVI of the Declaration relating to Mr. Edwards’ claims concerning inhumane conditions of detention, incompetent and ineffective benefit of counsel, and the State’s failure to disclose documents relating to Mr. Edwards’ identification parade,

7. The Commission does not find that the State is in violation of Mr. Hall’s right to an impartial trial pursuant to Article XXVI of the Declaration, relating to unfair media reporting and publicity.

8. The Commission does not find that the State violated Messrs. Schroeter’s and Bowleg’s rights to an impartial trial pursuant to Article XXVI of the Declaration relating to the conduct of their trial, in particular the trial judge’s summing-up to the jury concerning their involuntary confessions.

II. PROCEEDINGS BEFORE COMMISSION

A. Proceedings in Relation to Michael Edwards, Case 12.067

6. Mr. Edwards’ petition was presented to the Commission on November 5, 1998. Included in Mr. Edwards’ petition was a request for precautionary measures pursuant to Article 29 of the Commission’s Regulations. The Commission opened Case Nº 12.067, on December 10, 1998, and pursuant to Article 34 of its Regulations, the Commission forwarded the pertinent parts of the petition to the State and requested its observations within 90 days with regard to the exhaustion of domestic remedies and the claims raised in the petition. The Commission also requested that the State stay Mr. Edward’s execution pending the Commission's investigation of the alleged facts.

7. On December 11, 1998, the Commission received the State’s Reply to the petition which is referred to in Chapter III of this Report.

8. On December 21, 1998, the Commission forwarded the pertinent parts of the State’s Reply to the Petitioners and requested that they provide the Commission with their observations within 30 days.

9. On January 20, 1999, the Commission received a request from the Petitioners for an extension of time to file their response to the State’s observations because the Petitioners stated that they were “still awaiting information from Mr. Edwards regarding the preparation of his defense, namely, that he was deprived of a fair trial, and the prison conditions in which he is currently being held.” On February 5, 1999, the Petitioners responded to the State’s Reply to the petition. In addition, the Petitioners stated that there were practical difficulties in obtaining information with regard to Mr. Edwards’ prison conditions and reserved the right to develop this ground of his petition once relevant information was received. The Petitioners also reiterated their request that the Commission issue precautionary measures in respect of Mr. Edwards.

10. On February 19, 1999, the Commission forwarded the Petitioners’ observations to the State asking that it provide the Commission with information that it deemed relevant to the case within 30 days. On October 19, 1999, the Commission reiterated its request to the State, asking that the State provide it with information with regard to the Petitioners response to the State’s Reply to the petition, within 30 days.

11. The Commission has not received any additional communication or information from the State since its Reply to the petition on December 11, 1998.

B. Proceedings in Relation to Omar Hall, Case 12.068

12. Mr. Hall’s petition was presented to the Commission on December 3, 1998. Included in Mr. Hall’s petition were several requests from the Petitioners. The Petitioners requested that the Commission recommend to the State that it commute Mr. Hall’s death sentence so that he could be removed from the death row regime in Foxhill Prison. The Petitioners also invited the Commission to recommend to the State that it amend its penal code to restrict the death penalty to the most heinous forms of murder and to institute a sentencing hearing in which aggravating or mitigating factors can be examined. In addition, the Petitioners asked the Commission to reach a decision in the case as soon possible and requested that the Commission make the strongest possible representations to the State to stay the execution of Mr. Hall and not to execute him while this matter is pending determination by the Commission.

13. On December 10, 1998, the Commission opened Case Nº 12.068, and forwarded the pertinent parts of the petition to the State and requested its observations within 90 days with regard to the exhaustion of domestic remedies and the claims raised in the petition. The Commission also requested that the State stay Mr. Hall’s execution pending the Commission's investigation of the alleged facts. On October 19, 1999, the Commission reiterated its request to the State for its observations within 30 days with regard to the claims raised in the petition.

14. To date, the Commission has not received any response from the State in respect of the Petitioners' petition, despite the Commission's requests for information dated December 10, 1998, and October 19, 1999.

C. Proceedings in Relation to Brian Schroeter and Jeronimo Bowleg,

Case 12.086

15. Messrs. Schroeter’s and Bowleg’s petitions were presented to the Commission on January 7, 1999. In their petition, the Petitioners requested that the Commission issue Precautionary Measures pursuant to Article 29.2 of its Regulations against the State, and indicated that the Commission should request that the State take no steps to execute Messrs. Schroeter and Bowleg to avoid irreparable damage to them while their cases were pending determination before the Commission.

16. The Petitioners also requested that the Commission declare that the State has violated the rights of Messrs. Schroeter’s and Bowleg’s as established by the American Declaration. In addition, the Petitioners requested that Messrs. Schroeter and Bowleg be provided with an effective remedy entailing their release from detention. Moreover, the Petitioners requested that the Commission schedule an oral hearing in the case, and conduct an on-site visit to death row at Fox Hill Prison, The Bahamas, to investigate Messrs. Schroeter’s and Bowleg’s conditions of detention.

17. Pursuant to Article 40(2) of the Commissions Regulations, the Commission consolidated and processed the petitions as one case, because they dealt with the same facts, issues, and persons. The Commission opened case Nº 12.086, and pursuant to Article 34 of the Commission’s Regulations the Commission forwarded the pertinent parts of the petition to the State on the January 19, 1999, and requested that the State provide it with information within 90 days on the issue of exhaustion of domestic remedies, pursuant to Article 37 of its Regulations, and with information with respect to the claims raised in the petition, and any additional information which would enable the Commission to determine whether the internal legal remedies and procedures have been exhausted. The Commission also requested that the State stay the executions of Messrs. Schroeter and Bowleg pending an investigation by it of the alleged facts.

18. On January 25, 1999 the Petitioners forwarded additional information to Commission on the issue of timeliness of the petition, and argued that the rules of the American Declaration should apply in this case. The pertinent parts of this information were forwarded to the State on the same date.

19. The case file before the Commission does not reflect any responses from the State in respect of the Commission’s communications and the pertinent parts of the petition which were forwarded to the State on January 19, and 25, 1999 respectively.

D. Commission’s Decision on Admissibility of the three cases 12.067, 12.068, and 12.086 at 104^th and 106^th Regular Sessions

20. The Commission declared that it was competent to examine these three cases, and declared the cases admissible pursuant to Articles 37 and 38 of its Regulations, at its 104^th and 106^th Regular Sessions respectively. Messrs. Schroeter’s and Bowleg’s case, Nº 12.086, Report Nº 123/99,[8] was declared admissible on September 27, 1999, at the Commission’s 104^th Regular Sessions. Mr. Edwards’ case Nº 12.067, Report Nº 24/00,[9] and Mr. Hall’s case Nº 12.068, Report Nº 25/00[10] were declared admissible on March 7, 2000, at the Commission’s 106^th Regular Sessions.[11]

21. In the Commission’s decisions declaring the cases admissible, the Commission also decided inter alia to place itself at the disposal of the parties concerned with a view to reaching a friendly settlement in the cases, and maintained in effect the precautionary measures issued in the three cases under review.

22. The Commission decided to consolidate these three cases for the purposes of this Report pursuant to Article 40(2) of the Commission’s Regulations because the cases involve similar facts and substantially the same issues under the Declaration.

23. The Commission forwarded a copy of Case Nº 12.086, Report Nº123/99 concerning Messrs. Schroeter and Bowleg to the State and Petitioners on November 30, 1999. On March 10, 2000, the Commission forwarded a copy of Case Nº 12.067, Report Nº 24/00, relating to Mr. Edwards, and Case Nº 12.068, Report Nº 25/00 in respect of Mr. Hall to the State and the Petitioners.

24. Since forwarding the Reports to the State and the Petitioners, the Commission has not received any additional information from either the State or the Petitioners concerning the same.

III. POSITION OF THE PARTIES ON THE MERITS OF THE PETITIONS

A. Michael Edwards’ Claims

1. Position of the Petitioners

25. The Petitioners claim that Michael Edwards, a national of The Bahamas was charged with the murder of Gerald Cash, (“the deceased”) owner of Lucky Food Store in The Bahamas which occurred on October 20, 1994. The Petitioners indicate that the deceased was shot with a single bullet, and was robbed of $800 in cash. The Petitioners maintain that three store employees, ages 14, 16, and 21, prosecution witnesses, testified that a robbery occurred in the store, during which one or two shots were fired causing the deceased’s death, but no none saw the actual gun being fired. The Petitioners claim that a fourth prosecution witness testified that a robbery had occurred, and stated that during the course of the robbery he was asked to fill a bag with money from the “shop’s till,” but failed to identify the robber at the identification parade. The Petitioners contend that there had been collusion between the witnesses at the identification parade and that it was improperly conducted.

26. The Petitioners report that Mr. Edwards gave sworn testimony and his defense was that of misidentification, he relied on alibi evidence, which was supported by five other witnesses. The Petitioners claim that one of Mr. Edwards’ five witnesses testified that she was in the store when the robbery occurred and that the gunman did not have the appearance of Mr. Edwards.

27. The Petitioners state that Mr. Edwards was convicted of armed robbery and murder on May 8, 1996, and a mandatory death sentence was imposed on him. According to the Petitioners, Mr. Edwards appealed his convictions and sentence to the Court of Appeal of The Bahamas, which dismissed his appeal on January 20, 1997. Mr. Edwards then petitioned the Judicial Committee of the Privy Council (hereinafter referred to as “the Privy Council”) for Special Leave to Appeal his convictions and sentence, the Privy Council dismissed his petition on October 29, 1998.

a. Articles I, II, XVIII, and XXVI of the Declaration - The Mandatory Death Penalty and the Prerogative of Mercy

i. The Mandatory Death Penalty

28. The Petitioners allege violations of Articles I, II, XVIII, and XXVI of the Declaration, in connection with the trial, conviction and sentencing of Mr. Edwards for the crime of murder in The Bahamas. More particularly, the Petitioners argue that the mandatory death sentence imposed by the State pursuant to its penal law on every person convicted of murder, and the pardon and commutation regime of the State violate Mr. Edwards’ rights to life, equality before the law, a fair trial, and humane treatment under Articles I, II, XVIII, and XXVI, of the Declaration.

29. The Petitioners contend that the death penalty is mandatory in character, and does not allow for consideration to be taken of the particular circumstances of Mr. Edwards or the offence. The Petitioners also argue that the pardon/commutation procedure is extra-legal in nature for the following reasons, namely, (I) there is no criteria in existence in The Bahamas for the exercise of the discretion of whether to pardon or to execute; (ii) no information is available as to whether such discretion is exercised on the basis of an accurate account of legally admissible evidence; and (iii) there is no right to make either written or oral representations, and no opportunity is provided to respond to any remarks of the trial judge (or anybody else) as to whether the death sentence should be implemented.

30. The Petitioners referred to the legislative history of the death penalty in The Bahamas. The Petitioners state that until July 10, 1973, the Commonwealth of The Bahamas was a British Colony whose penal law consisted of the common law as developed in England and Wales and local penal codes, and that pursuant to the Offences Against the Persons Act of 1861, the penalty for every offence of murder was death. The Petitioners claim that in the United Kingdom, the Homicide Act of 1957 reduced certain killings to manslaughter, and also created a scheme which carefully distinguished between capital and non-capital murders. The Petitioners maintain that the Homicide Act was not extended to the Commonwealth of The Bahamas, although separate provision was made in its Penal Code for the defenses of provocation, diminished responsibility and other forms of manslaughter. The Petitioners state that prior to 1957 no distinction was made between capital and non-capital murder. The Petitioners indicate that this is the position in The Bahamas, and that pursuant to Section 312 of the Penal Code of The Bahamas, an adult murderer is automatically sentenced to death for the offence of murder.

31. The Petitioners claim that although the United Kingdom has now abolished the death penalty for murder, the distinction created by the 1957 Homicide Act between capital and non-capital murder was illustrative of a more general trend in the international sphere towards a recognition that the death penalty – insofar as it is to be maintained at all–should be administered according to criteria which take into account the individual circumstances of each case.

32. In support of their position, the Petitioners refer to the practice in other states. They argue, for example, that in the case of Woodson v. North Carolina[12] the United States Supreme Court held that the automatic imposition of the death sentence on all those convicted of a specific offence is inconsistent with “the evolving standards of decency that are the hallmark of a maturing society.” The Petitioners argue that the Supreme Court made it plain that the application of the mandatory death sentence imposed in all cases of murder without objective criteria for its application in particular cases after a fair hearing, was unconstitutional. In addition, the Petitioners indicate that the Supreme Court held further that:

[i]n capital cases the fundamental respect for humanity underlying the eight amendment … requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.[13]

33. In addition, the Petitioners contend that the South African Constitutional Court has gone further and followed the Hungarian Constitutional Court in declaring the death penalty to be unconstitutional per se in Decision 23/1990(X.31). Conversely, in the case of Bachan Singh v. The State of the Punjab, the Supreme Court of India determined that the death penalty is not unconstitutional per se,[14] in part because there was a judicial discretion as to whether it should be imposed. Based upon these domestic authorities, the Petitioners argue that states retaining the death penalty must distinguish between capital and non-capital murder, and must provide due process guarantees and a proper sentencing procedure for considering whether the death penalty should be imposed in capital cases.

34. In this connection, the Petitioners make reference to a 1992 amendment to Jamaica's Offences Against the Person Act 1861, which distinguishes capital from non- capital murder. Finally, the Petitioners claim that the law of Belize has introduced judicial discretion in the application of the death penalty.

35. The Petitioners claim that Mr. Edwards’ due process rights were violated and his right not to be subjected to cruel, infamous or unusual punishment pursuant to Article XXVI of the Declaration for the following reasons: (i) Mr. Edwards was sentenced to death under a statute which did not distinguish between different kinds of murder, and he was prevented from advancing any effective mitigation; (ii). the dehumanizing effect of being punished for the category of crime rather than the person he is; and (iii) the capricious and arbitrary nature of the pardon/commutation procedure, which denies him any meaningful input into the most important decision that can now be taken about his life. The Petitioners argue that the imposition of capital punishment may give rise to a violation of Article XXVI even if the death penalty in itself does not constitute a violation of that Article. In support of this contention, the Petitioners rely on the cases of Soering v. United Kingdom,[15] Pratt and Morgan v. Attorney-General of Jamaica,[16] and Guerra v. Baptiste,[17] which interpreted the equivalent provisions of the European Convention of Human Rights, the Jamaican Constitution and the Trinidad and Tobago’s Constitution respectively.

36. The Petitioners claim that Mr. Edwards’ right to equal protection of the law was violated by both the mandatory nature of the death sentence imposed on him and by the arbitrary nature of the pardon/commutation procedure. The Petitioners argue that the mandatory death sentence for the crime of murder in The Bahamas fails to allow any meaningful consideration of Mr. Edwards character and record. Accordingly, the Petitioners contend that Mr. Edwards was denied the right to receive a sentence that reflects his individual circumstances and those of the offence for which he was convicted. The Petitioners claim that Mr. Edwards committed a robbery which went tragically wrong and renders him liable to the same punishment that a sadistic multiple killer, or a calculating contract killer, would receive. The Petitioners maintain that a formal equal penalty for unequally wicked crimes and criminals amounts to substantive inequality, and thus violates Article II of the Declaration.

37. The Petitioners maintain that there is a defect in the clemency procedure because Mr. Edwards has no right to a hearing when the question of mercy or clemency is considered. The Petitioners contend that because there is no information on how a mercy or clemency decision is reached, it is impossible for Mr. Edwards to prove that he has been the victim of unequal treatment, and that the State should not be able to rely on the secrecy of its procedures to assert a non-violation of Article II of the Declaration. The Petitioners maintain that because the discretion to actually implement the sentence is so broad and unaccountable the commutation discretion must be presumed to operate with arbitrary effect. In addition, the Petitioners argue that race, sex, age, wealth, political or personal connections may well influence the commutation decision. Moreover, the Petitioners contend that it is for the party seeking to deprive Mr. Edwards of his life to show absence of inequality and discrimination in the operation of its capital punishment machinery.

38. Finally, the Petitioners argue that for the reasons outlined above, the automatic imposition of a death sentence on Mr. Edwards violates his due process rights and would thereby also violate his right to life under Article I of the Declaration.

b. Prerogative of Mercy

39. The Petitioners claim that the procedures established by the Bahamian Constitution for pardon and mercy do not mitigate the deficiencies of the country’s death penalty regime, but instead give rise to a separate and serious violation. Specifically, the Petitioners maintain that they lack the qualities of legal certainty which violate Article XVIII of the Declaration, in conjunction with the non-discrimination provisions of Article 26 of the Bahamian Constitution.[18] The Petitioners indicate that Article 90 of the Bahamian Constitution grants the Governor-General various powers to pardon offenders, and to remit punishments, but no limitation or criteria for the exercise of those powers is stated, save that it is specified that the powers should be exercised in accordance with the advice of a designated Minister.[19]

40. The Petitioners maintain that even insofar as the rigors of the mandatory death penalty might theoretically be mitigated by the powers of pardon and mercy, these powers are entirely extra-legal and non-enforceable by the courts, and do not give rise to any legal rights. The Petitioners indicate that according to the Privy Council’s decision in Reckley v. Minister of Public Safety (Nº2),[20] under Article 92 of the Constitution of The Bahamas,[21] a condemned man has no right to make representations or attend a hearing when the question of mercy or clemency is being considered, nor a right to see or comment on the trial judge’s written report. The Petitioners state that the Privy Council opined in Reckley Nº 2 that: “Of its very nature, the Minister’s discretion if exercised in favor of the condemned man, will involve a departure from the law. Such a decision is taken as an act of mercy or as it used to be said as an act of grace.”

41. The Petitioners argue that Mr. Edwards has no right to see or comment on the trial judge’s written report, and that there are no public criteria for commutation, nor any procedure for evaluating whether all relevant matters have been considered and irrelevant ones disregarded. The Petitioners contend that there are no effective domestic legal challenges to the deliberations of the Governor-General or Advisory Committee. The Petitioners maintain that Article 26(1) of the Bahamian Constitution renders nugatory any law which is discriminatory either of itself or in its effect. According to the Petitioners Article 2(2) of the Bahamian Constitution further stipulates that “no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.” The Petitioners contend that discrimination is defined broadly to include differential treatment on the basis of “race, place of origin, political opinions, color or creed.”

42. Moreover, the Petitioners contend that the prohibition on discrimination in Article 26 of the Bahamian Constitution is merely a restatement of a fundamental principle of fairness – namely that decisions which will have adverse effects on citizens should be taken on rational, non-arbitrary grounds. The Petitioners claim that the reason why the prohibition in Article 26(1) of the Constitution of The Bahamas extends beyond deliberate discrimination to measures which have the effect of being discriminatory is because it has been recognized that arbitrary treatment is often hard to prove. According to the Petitioners, in the absence of transparent deliberations and a reasoned decision, there must be a serious risk that Mr. Edwards has been treated in a way that violates the non-discrimination clause of the Bahamian Constitution.

43. Finally, the Petitioners argue that in all these circumstances, Mr. Edwards’ inability to do anything but await passively a decision on his mercy application amounts to a violation of his right to resort to the courts to ensure respect for his legal rights pursuant to Article XVIII of the Declaration.

c. Article XXVI of the Declaration - Right to an Impartial Trial, Right to Counsel and Procedural Irregularities

44. The Petitioners allege that Mr. Edwards was denied the benefit of effective and competent counsel and that the State failed to disclose documents relating to the conduct of his identification parade. The Petitioners stated they were awaiting further information in relation to these grounds and in due course these grounds would either be amplified or withdrawn.

45. The Petitioners also contend that the State may claim that Mr. Edwards has a remedy under the Constitution of The Bahamas to pursue a Constitutional Motion, however, this remedy cannot be considered either available or effective. The Petitioners argue that Mr. Edwards is unable to pursue a Constitutional Motion in The Bahamas to challenge his mandatory death sentence as being inhuman or degrading punishment or treatment because he is indigent, and the State’s domestic law does not provide private funds nor legal aid to indigent persons to pursue such Motions. The Petitioners claim that his petition to the Commission is being made on a pro bono basis, and that the State’s practice is to refuse legal aid for Constitutional Motions. The Petitioners maintain that the legal complexity of a Constitutional Motion, combined with Mr. Edwards’ relative lack of education, makes it unrealistic and unfair to expect him to present a Constitutional Motion without professional legal assistance. Finally, the Petitioners maintain that it is difficult for Mr. Edwards to find a Bahamian lawyer who is willing to prepare and argue a Constitutional Motion pro bono.

46. In support of their position, the Petitioners rely upon the jurisprudence of the United Nations Human Rights Committee (HRC), in particular its decision in the case of Champagnie, Palmer & Chisolm v. Jamaica,[22] in which the Committee stated as follows:

With respect to the authors’ possibility of filing a Constitutional Motion, the Committee considers that, in the absence of Legal Aid, a Constitutional Motion does not constitute an available remedy in the case. In light of the above, the Committee finds that it is not precluded by Article 5(2)(b) of the Optional Protocol from considering the communication.[23]

47. In the original petition dated November 5, 1998, the Petitioners contended that Mr. Edwards’ right to a fair trial pursuant to Article XXVI of the Declaration was violated because he was denied the benefit of effective and competent counsel. In their later submission of February 5, 1999, the Petitioners withdrew this claim. The Petitioners also maintain that Mr. Edwards’ did not have a fair trial pursuant to Article XXVI of the Declaration because the State failed to disclose documents relating to the conduct of his identification parade.

d. Article XXVI of the Declaration - Right to Humane Treatment

48. The Petitioners claim that the conditions under which Mr. Edward is being detained violate Article XXVI of the Declaration, and that they would amplify this ground or withdraw it in due course.

e. Petitioners’ Response to the State’s Reply to the Petition

49. On February 5, 1999, the Petitioners responded to the State’s Reply to the petition. First, the Petitioners argue in response to the State’s position that Mr. Edwards’ petition to the Privy Council was dismissed on October 30, 1998, the Petitioners reaffirmed that Mr. Edwards’ petition to the Privy Council was heard and dismissed on October 29, 1998, and not October 30, 1998, as suggested by the State.

50. Second, the Petitioners stated that they were withdrawing their allegation of a violation of Mr. Edwards’ right to a fair trial as pursuant to Article XXVI of the Declaration, relating to the incompetence of counsel at trial. Third, with regard to the Petitioners allegation concerning the failure of the State to provide disclosure of documents relating to the conduct of the identification parade in Mr. Edward’s case, the Petitioners indicate that the State used the words “established” and “formal.” The Petitioners invited the State to clarify if there existed any documents of an informal nature. The Petitioners argue that the evidence of DCI Gibson at pp.692-6 of the trial transcript suggests that some documents did exist, and that until this ambiguity is clarified, Mr. Edwards’ is not in a position to develop this part of his petition.

51. In response to the State’s Reply to the petition with regard to the Petitioners’ allegation concerning the violations of the Declaration by the State’s imposition of a mandatory death penalty on Mr. Edwards, the Petitioners claim that the State failed entirely to address the issues raised in Mr. Edwards’ petition before the Commission. The Petitioners claim that the State’s argument addresses the constitutionality of the death penalty under Bahamian law, rather than the violations of the Declaration alleged by Mr. Edwards. The Petitioners maintain that Mr. Edwards has not sought to argue the contrary, but has addressed his petition to the violations of the Declaration. The Petitioners state that they wish to remind the Commission that Mr. Edwards does not claim that the death penalty itself violates the Declaration. The Petitioners also reiterated their argument regarding the violations of the Declaration in relation to imposition of capital punishment.

52. The Petitioners also claim that the State did not present any arguments on Mr. Edwards’ allegation that the existence and operation of the Advisory Committee on the Prerogative of Mercy violates Article II of the Declaration, and that the points raised by Mr. Edwards’ in his petition concerning the same remains unanswered. In addition, the Petitioners contend that the State’s reliance on the dissenting judgment in Woodson v. North Carolina is misplaced. The Petitioners argue that the majority decision in Woodson v. North Carolina has remained good law in the United States for over twenty years and in the absence of compelling arguments, there can be no basis for preferring the minority view over that of the majority. The Petitioners indicate that the State did not make any reasoned arguments in support of its assertion that “the matters considered therein have no relevance having regard to the history and law of The Bahamas.”

53. The Petitioners argue that because the mandatory death penalty was part of Bahamian law at Independence, does not mean that its mandatory nature could not violate the Declaration, and if it did, the Inter-American Commission system would be merely declaratory of existing practice. The Petitioners contend that the Declaration is intended to be normative rather than declaratory, and that it should keep in step with evolving human rights standards elsewhere in the world. The Petitioners maintain that the relevant question remains that specified by the majority in Woodson, namely, whether the mandatory nature of the death penalty in The Bahamas is inconsistent with the “evolving standards of decency that are the hallmark of a maturing society.” The Petitioners also indicate that the State has not provided examples of where mandatory death sentences are imposed, and that the State’s remarks concerning the Advisory Committee do not address any of the points raised by Mr. Edwards in his petition.

54. In their response to the State’s Reply to the petition, the Petitioners stated that they were still awaiting information from Mr. Edwards regarding the prison conditions in which he is being held, and that the Petitioners reserved the right to develop this ground of his petition further once relevant information is received.

2. Position of the State

55. In its Reply which was received by the Commission on December 11, 1998, the State did not contest the admissibility of the petition, and only addressed the substantive issues relating to the merits of the petition. The State wrote the following:

The Government of The Bahamas has been informed that a Petition has been filed with the Commission on behalf of the above captioned convict, who has been sentenced to death. With respect to the alleged Breaches as contained in a copy of the Petition lodged with our United Kingdom Solicitors Messrs. Charles Russell, We respond as follows:-

the application for special leave to appeal the applicant’s conviction to the Privy Council was heard and dismissed according to our records on the 30^th October, 1998, as opposed to the 29^th October. The other relevant dates referred to in the History are agreed. The Government does not take issue with the Background or the Defense Case as stated in paragraph 2.

56. The following is the State’s Reply to the Petitioners allegation that Mr. Edwards was denied the benefit of effective and competent counsel in violation of the Declaration:

It should be pointed out that the allegation that the applicant was ‘denied effective and competent counsel’ can in no way be supported either by reference to the record of the proceedings before the Learned Trial Judge or by Personal reference to the defense counsel in question. Mr. Malcolm Adderley, the attorney of record is a very senior lawyer who has served in the past as Justice of the Supreme Court of the Commonwealth of The Bahamas (in an acting capacity). He presently serves as a judicial member of the Industrial Tribunal.

That there was no established procedure in place at the time of this investigation in the Royal Bahamas Police Force to fill out documents prior to holding an identification parade. That practice has now been in place for the past five years. Therefore at the time of trial there were no formal documents to disclose to counsel for the defense relative to the conduct of the identification Parade.

57. The following is the State’s Reply to the Petitioners argument concerning the mandatory nature of the death penalty:

The Privy Council having held in Jones & Others vs. Attorney General Of The Bahamas, 1995 4AER, pg.2 that the Death Penalty was mandatory and not discretionary. It is submitted that it cannot be properly stated that the mandatory Death Sentence is cruel, infamous or unusual punishment and we further quote from the decision of Mr. Justice Osadebay dismissing the motion for Constitutional Relief:-

The Plaintiff in his submissions questioned the validity or constitutionality of the death penalty in The Bahamas, Suffice it to say that that had already been determined in the decision of Jones & Ors. Vs. The Attorney General of The Bahamas (1995) 46 West Indian Reports Pg. 8. It was again raised in Thomas Reckley Vs. Minister of Immigration & Ors. But without success.

The wording of Article 17 of the Constitution of The Bahamas is similar to that of section 17 of The Constitution of Jamaica and it states:-

17(1) No person shall be subjected to torture or inhuman or degrading treatment or punishment.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that the law in question authorizes the infliction of any description of punishment that was lawful in the Bahama Islands immediately before 10^th July, 1973 – (10^th July, 1973, being Bahamas Independence Day.)

Their Lordships are satisfied that the construction of Section 17(2) adopted by the minority is to be preferred. The purpose of Section 17(2) is to preserve all descriptions of punishment lawful immediately before Independence and to prevent them from being attacked under Section 17(1) as inhuman or degrading forms of punishment or treatment. Thus, as hanging was the description of punishment for murder provided by Jamaican law immediately before Independence, the death sentence for murder cannot be held to be an inhuman description for murder. (Pratt Vs. A.G. for Jamaica (1993) 3 WLR 995 at page 1010.)

Therefore the penalty of Capital Punishment as it is known is not unconstitutional in The Bahamas. The definition of capital murder in The Bahamas refers to specific intention to kill. (Section 11(3) of the Penal Code, Chapter 77).

The applicant here cannot be said, on the facts of this particular case, to have only had the intention to rob as averred in the Petition as ‘an armed robbery gone tragically wrong.’ The applicant went into the establishment in question armed with a firearm and almost immediately he commenced beating a customer about the head with a bag containing the said weapon. He fired the gun within a short distance of the deceased, and therefore appeared to have no other intention than to cause the kind of harm which in fact resulted.

58. The State argues the following with regarding the Petitioners’ argument on the Advisory Committee on the Prerogative of Mercy:

The Advisory Committee on the Prerogative of Mercy is a Committee established by the Supreme Law of The Bahamas, the Constitution, Article 91, and it is the Privy Council, the final Court of Appeal that has held that applicants are not permitted to appear or make submissions before the Advisory Committee and this inability of the applicant so to appear before this Committee cannot therefore be called into question (GUERRA and BAPTISTE) 1996 1AC pg. 397.