(c) substitute a less severe form of punishment for any punishment imposed on any person for any offence'

Learned counsel argued that the Governor-General is thereby granted two powers, first, to set aside the sentence of the court, and second, to substitute a lesser form of punishment.

Counsel contends that the Governor General could not, under that power, reduce the term of a sentence of imprisonment to a lesser term. The power, counsel contends, would be limited in that context to a power, for example, to substitute for the sentence of imprisonment a sentence of a fine or probation, referring the matter thereafter to a court to determine the quantum of the fine or the terms of the probation order.

Attractive as this may seem at first glance, I find this proposition entirely inconsistent with the legislative intent evident in sections 72, 73 and 74.

The Constitution, by these sections, establishes an Advisory Committee on the Prerogative of Mercy, which Committee must, in every case where a person has been sentenced to death other than by a court-martial, and may in any other case referred to it by the appropriate Minister, consider the sentence imposed on any person and advise the Minister with regard to that sentence.

The Minister, after obtaining the advice of the Committee, is empowered to decide, in his own deliberate judgement, whether to advise the Governor-General to exercise any of his power under section 72(1), those powers being to grant a pardon, either free or subject to lawful conditions, to grant respite, indefinite or for a specified period, of the execution of the sentence (the word used in the Constitution is 'punishment' ), to substitute a less severe form of punishment for the punishment imposed by the court, or to remit the whole or part of any punishment, penalty or forfeiture imposed by the court.

The Governor-General must act in accordance with the advice of the Minister. The discretion is vested in the Minister. The matter has been dealt with by the courts, and the issue of mercy is now an executive prerogative.

The exercise of that executive prerogative is not, of course, entirely outside of the supervisory jurisdiction of the courts to ensure procedural regularity, fairness and the application of the rules of natural justice.

Once these prerequisites are observed, the Minister has a wide discretion to advice the Governor-General. The punishment may not be increased, but it may be affirmed, or abated to the extent determined by the Minister.

I entirely agree that the function of the Advisory Committee, of the Minister and of the Governor-General is not the function of a court, it is not a

The grant of a pardon on condition that the respondents serve a sentence for the remainder of their natural lives

By instrument under the Public Seal dated 15th August 1991 the Governor-General, in purported exercise of the powers vested in him by section 72 (1) of the Constitution, granted to each of the respondents respectively, a pardon in respect of their convictions, on condition that they be kept in custody to hard labour for the remainder of their natural lives.

Learned counsel for the respondents (Coard) contended that the imposition of that condition amounts to a breach of section 3 (1) of the Constitution, which provides that no person shall be deprived of his personal liberty save as may be authorized by law in any of 10 circumstances, in which list a condition for the grant of a pardon is not included.

Counsel therefore submitted that such a condition is in breach of section 3 of the Constitution and of the principle of the separation of powers expressed therein. In response, learned Queen's Counsel for the appellants (State) submitted that the powers of the Governor-General under section 72 are original powers not subject to limitation by section 3.

The learned trial judge did not rule on that question, but rested his decision on his view that the sentence of imprisonment for the rest of the respondents' natural lives was unlawful, a view which, as I have earlier indicated, I do not share.

It seems to me that the Governor-General's powers under section 72 are independent of and not limited by section 3 of the Constitution. In particular, the power to impose a less severe punishment than that imposed by the court. It would be irrational to hold that a power conferred by the Constitution itself is in breach of the very Constitution.

Learned counsel for the appellant, in his written reply to the respondents' submissions on this issue, argued that the sentence of death imposed on the respondents by the court at trial had the effect of depriving the respondents of their personal liberty, and that the order of the Governor-General is therefore not a contravention of section 3 (1) of the Constitution, either by depriving the respondents of their liberty, which they had already lost by the sentence of the court, or by the exercise of a sentencing power. I agree.

The instruments under the hand of the Governor-General and the Public Seal of Grenada by which the Governor-General commuted the death sentences and substituted the sentence of life imprisonment recites the advice of the Minister to commute the death sentence to one of life imprisonment.

The Governor-General is bound, under section 72 (2) of the Constitution of Grenada, to exercise his power in accordance with the advice of the Minister. Further, learned counsel submitted in his written reply that section 108 of the Constitution precludes this or any court from inquiring into whether the Governor-General has acted in accordance with the advice of the Minister. I agree.

The language of the instrument is not contrary to the intention to substitute the sentence of life for the sentence of death, and indeed does convey that intention.
The contentions of the respondents, if correct, would clearly lead to injustice or absurdity. In effect, to uphold their contentions would mean that, upon the issue of the instruments on 15th August 1991, the respondents should have been immediately released from prison, and their continued detention thereafter would be illegal.

That Clearly was not the intention of the Minister or of the Governor-General, and is not the intention conveyed by the words of the instrument. I would therefore dismiss this ground of appeal.

Whether the failure to supply the respondents with the written judgement of the former Court of Appeal is a breach of the Constitution entitling the respondents to damages.

The learned trial judge found that some 12 years after the judgments were delivered on 12th July 1991 in Criminal Appeals No.4 to 20 in the former Court of Appeal, the State continues to be in breach of section 8 (3) of the Constitution by failure to provide them with written reasons for the decision of the court was delivered orally in the presence of the respondent and their representatives, over two days.

It is also common ground that no written record of the reasons has been provided. The respondents argue that written reasons are necessary to enable them to access the processes of international Human Rights tribunals and other bodies in pursuit of their legitimate interests.

An examination of the Rules governing access to the international organs for the protection of Human Rights will demonstrate that the respondents are not correct in their assertion that the written judgement is an essential prerequisite to initiating process in the various systems.

Indeed if they are right in their basic assertions the very failure of the appellants to provide written reasons may itself be a ground for a petition. In any event, an example may be found in the conditions for presenting a petition in the Inter-American system.

The three preconditions to accessing that systems are, first, that the accused State must have violated one of the rights established in either the American Convention or the American Declaration, second, the claimant must have exhausted the possibilities of legal redress in the State in which the violation occurred and his or her petition to the IACHR must be presented within six months of the final judgement by the tribunal concerned, and, third, the claim should not be the subject of some other international procedure.

These conditions are not rigid, and may be avoided in certain circumstances. The petition, which must be in writing, should contain all the available information and should describe the violation of human rights that took place, the date and place where it occurred, and identify the government involved.

There are various other rules, which are not overly restrictive, and which certainly do not require, as is argued on behalf of the respondents, the written judgement of the former Court of appeal. The right declared by the Constitution is the right to 'any record of the proceedings made by or on behalf of the court'.

It should not be difficult to establish that a record of the judgement delivered by the former Court of Appeal was made by or on behalf of the court. Such a record could take a number of forms; electronic text, audio, video, manuscript or typescript, which list is not exhaustive.

The record could be full, summary or anything in between. It may be that the only record made by on behalf of the court in respect of the reasoned judgment was a summary of the result, which, it is not doubted, has been made available to the respondents.

The respondents have not established that there is any other record to which they have the right within the intendment of section 8 (3) of the Constitution.
I am not satisfied that there has indeed been a breach of the constitutional rights of the respondents in this regard.

Breach of section 8(2) of the Constitution

The respondents cross appealed against the finding of the learned trial judge that they are precluded by the provision of Act 19 of 1991 from seeking to have the courts examine afresh issues of the breach of their rights under section 8 (2) of the Constitution.

In this regard the grounds of appeal relate to the selection of the jury and the conduct of the trial in their absence. Learned Queen's Counsel for the appellant submitted, however, that this issue was fully argued and decided in an appeal by the respondents against their conviction and sentence; alternatively, the issue should logically have been raised on the said appeal to the former Court of Appeal of Grenada.

The history of the several trials and appeals relating to this matter is recited in the head in the headnote to the case Mitchell and others v Attorney General of Grenada and Another and in the judgement of Liverpool J.A. at pages 215 and 216 of that report.

In that case which was an appeal to this court by these respondents and others, it was held that this court has no jurisdiction to hear, re-hear, determine or redetermine matters which were heard and determined by the former Court of Appeal before its abolition.

For the reasons stated above, I hold that this court has no jurisdiction to hear, re-hear, determine or redetermine the matters which were raised in the High Court and on appeal in this court, and in any event that the respondents are estopped from relitigating the matters which are subject matter of this appeal. I agree with learned counsel for the appellant that to entertain these matters would be to entertain an appeal from the decision of the former Court of Appeal.

For the above reasons I would allow the appeal of the appellant and dismiss the cross appeal. I would make no order as to costs.