Anthony Bowen and David Jones v. The Attorney General of Belize
Supreme Court of Belize
27 September 2010
Constitution (Sections 4, 7, 20 and 52)
Criminal Procedure Act (Section 146(2))
Family and Children Act (Sections 2, 3, 148 and 149; First Schedule)
Indictable Procedure Act (Sections 146(2) and 151(2))
Prison Rules 2006 (Rule 267(8)(a), Part VI)
Two individuals sentenced to life imprisonment for murders they committed while they were children sued to have their sentences reduced from life in prison to lesser fixed terms.
Issue and resolution:
Juvenile justice; life imprisonment. The Court agreed that the child offenders' sentences should be reduced from life impsionment to lesser fixed terms, and held that imposing life imprisonment without the possibility of release for offences committed by children is inhuman treatment and punishment in violation of Article 37(a) of the CRC.
The mandatory imposition of life imprisonment without the possibility of release for offences committed by children (i) nullifies some of the goals of juvenile justice, namely, reform and rehabilitation; (ii) fails to give room to considerations of proportionality in relation to individual circumstances such as character and record; and (iii) is inhuman. Also, by signing and ratifying the CRC, the Government of Belize assumed obligations and could not later disregard these by passing new legislation inconsistent with the provisions of the Convention.
Excerpts citing CRC and other relevant human rights instruments:
20. This case is about the compatibility with the Constitution of Belize and Article 37(a) of the Convention on the Rights of the Child of the life imprisonment sentences imposed on the claimants on their conviction for the offence of murder.
27. The nub of the claimants' case, therefore, is that because they were minors or juveniles at the time of their offences, they should not have received the life sentences imposed upon them and that therefore their sentences are not only not in conformity with the Constitution of Belize but also in breach of international Human Rights law, in particular, the United Nations Convention on the Rights of the Child.
28. In particular, the claimants contend that section 146(2) of the Criminal Procedure Act Chapter 91 of the Laws of Belize, Revised Edition 2003, is repugnant to the Constitution of Belize and incompatible with Article 37(a) of the UN Convention on the Rights of the Child (CRC) given the definition of a child in Article 1 of the CRC. And that this is more so as Belize was among the first member states of the UN, to ratify the CRC on 2nd September 1990 and enacted provisions in the Families and Children Act – Chapter 173 of the Laws of Belize, Revised Edition 2003 relating to the CRC: see for example, section 3 and the related First Schedule of the Act and section 149 on promoting, monitoring and evaluating the implementation of the CRC.
34. This provision of the Indictable Procedure Act, it is manifest, is at the heart of this case: the claimants contend that the life sentences imposed upon them are unconstitutional and contrary to the CRC; while it is contended for the defendant that section 146(2) speaks to the intention of the Legislature, that is to say Parliament intended the court to impose a life sentence on a minor convicted for murder.
41. It is also contended for the defendant in relation to Article 37(a) of the CRC that it is not superior to section 146(2) of the Indictable Procedure Act.
42. The brunt of the submission on behalf of the defendant in this regard is that the CRC which Belize has ratified and which is prayed in aid of the claimants' case, is not, in any event, applicable in Belize's domestic legal system absent its express incorporation by an Act of the Legislature into Belizean law. A subsidiary strand of this argument is that The Guiding Principles in the Implementation of the Family and Children's Act stipulated in section 3 of the Act do not apply in the criminal justice system as they are only intended for the implementation of the Act. The argument is advanced therefore, that the CRC is an unincorporated treaty and therefore not directly applicable in Belize.
43. Finally, it was argued for the defendant section 146(2) of the Indictable Procedure Act was an amendment that came after the CRC and it should therefore prevail over the latter in case of any inconsistency between the two.
44. Article 37(a) of the Convention on the Rights of the Child
The CRC is of course, a multilateral treaty concluded under the aegis of the United Nations. It represents today the most widely acceded to treaty. See generally Geraldine Van Bueren, The International Law on the Rights of the Child (1998, Save the Children and Martin Nihoff Publishers).
45. Belize, as I have noted at para. 27 above, ratified the CRC in 1990, and this was not long after its conclusion in 1989.
46. Article 37(a) of the CRC provides as follows:
States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age." (Emphasis added).
47. The CRC in Article 1 defines who a child is in the following terms:
For the purposes of the present Convention a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier."
52. The second issue is: What is the status of the CRC in Belizean law, in particular, is its Article 37(a) applicable in the case of sentencing juveniles/minors convicted for murder?
97. B. I now turn to the status of the Convention on the Rights of the Child (CRC), in particular, its Article 37(a) in the context of sentencing juveniles convicted for murder.
99. Belize ratified the CRC in 1990 and enacted the Families and Children Act in 1998. It is therefore urged on behalf of the claimants that the life imprisonment sentences imposed on them when they were juveniles were contrary to the CRC itself and hence not in keeping with some of the provisions of the Families and Children Act.
100. In particular, article 37(a) of the CRC is prayed in aid for the claimants. I have produced the text of this Article at para. 45 of this judgment. It is also contended for the claimants that some of the provisions of the Families and Children Act resonate with the provisions of the CRC and that in fact the latter has been incorporated into the laws of Belize.
101. It is therefore submitted for the claimants that the sentences of life imprisonment imposed on them as a result of their convictions, were contrary to Article 37(a) of the CRC and that international human rights instruments to which Belize has subscribed should inform its domestic laws where applicable.
103. Such sentences as were imposed on the claimants, she submitted, ignore the provisions of the CRC, in particular its Article 37, and they are repugnant to the evolving standards and aims of the juvenile justice system. Rehabilitation, she further submitted, should be a feature of any fair and progressive juvenile justice system. But this would not be possible, and is in fact precluded in a system that directs a mandatory life imprisonment for juveniles.
104. Ms. Banner for the defendant, however, stoutly resisted the applicability of the CRC and its provisions called in aid for the claimants in this case.
105. First, she submitted that the enacted law (section 146(2)) of the Indictable Procedure Act, directing life imprisonment for juvenile murderers came after Belize ratified the CRC. Therefore as it represents the view of the Legislature on this issue it must prevail over the provisions of the CRC.
Yes, section 146(2) was enacted to replace the old section 151(2) providing for detention of convicted juveniles during Her Majesty's Pleasure, in 1998, some eight years after Belize had ratified the CRC.
106. But with respect, the issue is not as simplistic as that. In my view, a court must always be astute to recognize and if possible give effect to international human rights obligations contained in treaties or conventions the state has subscribed to. The accepted and proper way to nullify the operation or effect of such instruments is, I think, by denunciation of or reservation or formal withdrawal from participation in such instruments by the state concerned. Simply to say, as Ms. Banner contends, that a later state legislation that is inconsistent with provisions in international human rights treaties means that those provisions are inapplicable is, I find, untenable; and in the circumstances, cannot avail the defendant. By signing and ratifying an international treaty, agreement or convention, a state assumes obligations and later domestic legislation inconsistent with a treaty obligation does not justify the nonobservance of that obligation.
107. This brings me to the more substantial point pressed for the defendant. This relates to the applicability of the First Schedule of the Families and Children Act, in particular, para. 4 of that Schedule. This raises the issue of the status of the CRC in the domestic law of Belize: is it incorporated or not, even though ratified?
109. The First Schedule sets out the Guiding Principles in The Implementation of The Act. Paragraph 4 of the Schedule sets out the rights a child shall have and sub paragraph (c) states as follows:
(c) to exercise, in addition to all the rights stated in this Schedule and the Act, all the rights set out in the UN Convention on the Rights of the Child, with the appropriate modifications to suit the circumstances in Belize, that are not specifically mentioned in the Act or in this Schedule." (Emphasis added).
110. I am not convinced that the phrase "with the appropriate modifications to suit the circumstances of Belize" claws back any of the rights set out in the CRC so as to negate the obligation to ensure that no child is sentenced to life imprisonment without possibility of release. I am of the considered view after having carefully perused the CRC itself and the provisions of the Families and Children Act, that the latter has by reason of the express reference theory made the former applicable in Belize. I am also satisfied that from the several provisions of the Families and Children Act, there is sufficient evidential nexus between this Act and the CRC to warrant the conclusion that the letter was intended by the Legislature to have direct effect in Belize. This conclusion, I find, is supported by, for example, the provisions of sections 148 and 149 of the Families and Children Act.
Section 148 establishes the National Committee for Families and Children. But more importantly, the functions and terms of reference of the National Committee are stated in section 149; among these are as stated in paragraph (a):
"(a) promoting, monitoring and evaluating the implementation of the Convention on the Rights of the Child, and ensuring that the Government meets its national and international obligations, as a party to the Convention." (Emphasis added).
112. I am satisfied that the CRC does apply in Belize and that the First Schedule of the Families and Children Act can operate depending on the issue, even in the sphere of the criminal justice system as well.
113. I am accordingly, satisfied that since Belize's accession to the CRC in 1990, one of the Convention rights available to a child caught up in the web of the criminal justice system is the obligation incumbent on Belize, as a state party to the Convention as provided in Article 37(a) which states:
"States Parties shall ensure that:
(as) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years." (Emphasis added).
114. It should be observed that the obligation incumbent on Belize under this Article is to ensure that neither capital punishment nor life imprisonment without possibility of release is imposed for offences committed by juveniles. That is to say persons below eighteen years.
115. This obligation I find has subsisted since 1990 when Belize ratified the CRC and later incorporated it into its laws. It subsisted in April 1996 when the life imprisonment without possibility of release was imposed upon the claimant Anthony Bowen. The obligation still subsisted as well in the case of David Jones when he was also sentenced to life imprisonment in October 2001 without possibility of release. The obligation I find subsisted even in 1998 when the Legislature effected a change to the Indictable Procedure Act allowing, in section 146(2) thereof for the imposition of life imprisonment upon juveniles convicted of murder. This provision, with respect, ignored Belize's subsisting obligation under Article 37(a) of the CRC. And this, as I have concluded in para. 105 of this judgment is no warrant for the contention that section 146(2) trumps Article 37(a). …
116. I am therefore satisfied that an interpretation that finds in favour of Article 37(a) is, undoubtedly, preferable as it would be clearly in keeping with Belize's obligations under the CRC in relation to the imposition of sentences of life imprisonment on juveniles. As it stands, I am convinced that section 146(2) of the Indictable Procedure Act seriously derogates from Belize's obligation regarding sentencing juveniles.
117. Life imprisonment and possibility of release for juveniles convicted for murder?
It is the imposition of life imprisonment on juveniles without possibility of release that Belize had undertaken, since 1990, by its accession and ratification of the CRC, to ensure never happens. And it is this spectre or reality of life imprisonment without possibility of release that has animated the claimants to launch the present proceedings.
I am ineluctably, led to conclude from my analysis in the foregoing paragraphs of this judgment, that the claimants have made good their claim. That is to say, the sentences of mandatory life imprisonment without prospect of release imposed upon them for the offence of murder committed when they were juveniles, are not sustainable in the circumstances, in the light of the provisions of section 7 of the Belize Constitution and are not in keeping with the obligations of Belize under the CRC, in particular Article 37(a) of the Convention.
This case received coverage in the national press, including 'Jail terms reduced for men convicted of murder as minors', Belize News, Sept. 29, 2010 (available at http://amandala.com.bz/newsadmin/preview.php?id=10351) and 'Chief Justice rules boys under 18 cannot be imprisoned for life', The Reporter (available at http://www.reporter.bz/index.php?mod=archive&act=print&article=4647&page_order=0).
For more information on the issue of inhuman sentencing of children, including a selection of case law, please see CRIN's 'Inhuman sentencing' campaign.
CRIN believes that this decision is consistent with the CRC. Sentences of life imprisonment without possibility of release are explicitly prohibited under Article 37 of the Convention and, as noted by the Court, all countries that have ratified the CRC have an obligation to ensure that these sentences are not imposed on children.
Bowen v Att'y Gen. of Belize, Claim No. 214 of 2007, (Belize Sup. Ct. 2010)
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