[Deathpenalty]death penalty news --- worldwide

[Joerg Sommer]

death penalty news

Feb 15, 2005


CARIBBEAN:

Struggle ahead over death penalty

The government and Opposition are to hold bilateral talks on constitutional 
matters including reaching a consensus on the establishment of the 
Caribbean Court of Justice (CCJ) to replace the Judicial Committee of the 
Privy Council, finalising the new Charter of Rights and Freedoms, 
substituting the present monarchical form of government with a republican 
one and "determining whether to abolish the death penalty altogether or 
retain it in its present form as an optional penalty or retain it in some 
other form".

There should be no problem in setting up the CCJ as a court of original 
jurisdiction to hear matters relating to the Caribbean Single Market and 
Economy which is urgent and crucial, because all it requires is a simple 
majority in Parliament.

A long debate can be expected over both the Charter of Rights and Freedoms 
as well as changing to a constitutional republic which has to be entrenched 
in the constitution. Legislation relating to these will eventually get 
through Parliament. It is the setting up of the CCJ in its appellate 
jurisdiction that is going to attract a lot of fire.

There have been reports in circles connected to the People's National Party 
that if the Opposition Jamaica Labour Party insists on having a referendum 
for the establishment of the CCJ instead of the two-thirds majority in 
Parliament to entrench the court in its appellate jurisdiction as required 
by the constitution, the government should find a way of asking the people 
in the referendum whether they are in favour of the death penalty for 
murder being carried out within a specific time, limiting the option of 
appeals.

With Jamaica's murder rate the highest in the world along with South 
Africa, and people cowering night and day out of fear of being killed, the 
response would no doubt be in the affirmative.

A few years ago when the question of capital punishment was put to the 
people in a private poll, 61 per cent voted in the affirmative, and murders 
have increased tenfold since. The government has sought to blame the Privy 
Council for the increased murder rate so there is no doubt that many people 
would link the Council with the murder rate and vote in a referendum that 
it be replaced.

An attempt may be made to circumvent appeals to the Privy Council. The PNP 
government was misguided when many years ago, it broke down murder into two 
categories - capital for which the penalty is death, and non-capital for 
which the sentence is life imprisonment.

However, no one ought to blame the Privy Council. Indeed, there is a large 
body of public opinion in this country and overseas which agreed with the 
decision of the Council in the Pratt and Morgan appeal "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 of such to 
constitute inhuman and degrading punishment or treatment.

If, therefore, rather than waiting for all those prisoners who have been in 
death row under sentence of death for five years or more to commence 
proceedings pursuant to section 25 of the Constitution, the Governor 
General now refers all such cases to the Jamaica Privy Council who, in 
accordance contained in this advice recommend commutation to life 
imprisonment, substantial justice will be achieved swiftly and without 
provoking a flood of applications to the Supreme Court for constitutional 
relief pursuant to section 17 subsection 1 of the Constitution".

It is this decision that apparently upset the government and so it decided 
to push hard for the establishment of the CCJ. I gather that the JLP is 
still sticking to the decision of the Judicial Committee of the Privy 
Council. It should be noted that Pratt and Morgan were on death row for 10 
years.

Trinidad and Tobago which has a constitution similar to Jamaica's in this 
respect hanged several murderers after the decision. So the Privy Council 
did not stop hanging. We should not forget that it has often prevented many 
innocent men from being hanged following appeals to the Council.

Why has there been such a long delay on this issue? Both the government and 
the Opposition have been stubborn in their position. The government has 
long been prepared to talk to the Opposition through former leader Edward 
Seaga who wanted other fundamental issues placed on the table.

The Opposition's position seemed to have altered since the retirement of Mr 
Seaga. Human rights groups and many lawyers, among others, have also stated 
that the delay in dealing with murder cases has to a large extent been due 
to the poor state of the justice system.

The system must be streamlined to expedite trials and appeals locally as 
well as to the CCJ, if it is established - or the Privy Council if it 
continues. What is necessary also is to further limit the time in which 
appeals must be made to international tribunals of which Jamaica is a member.

However, to try a citizen for murder, the police have to catch him first 
and to ensure the safety of prosecution witnesses. The present witness 
protection programme needs a great deal of strengthening. The question has 
been asked repeatedly in the media and elsewhere.

It has taken us a long time to arrive at a consensus. In 2000 government 
senator Fred Hamaty who is in favour of the CCJ said in the Senate that the 
country "cannot move towards a final court of appeal in contention and strife".

That is exactly what is happening today. There has been a great deal of 
distrust of the government. For example, speaking at the launch of Delano 
Franklyn's book, We want Justice, on November 29 last year Dr O G Harding, 
minister of justice and attorney general in the JLP in the 1980s, said that 
despite denials, the hanging question was in contemplation by the Jamaican 
government. He said that sovereignty has been given as one of the reasons 
for the CCJ.

On the strict interpretation of sovereignty with respect to the CCJ, the 
argument is the same as that of the Privy Council, for another non-Jamaican 
court will be dictating to our constitutionally entrenched courts. To some 
Jamaicans, the CCJ will still be foreign, perhaps a little less foreign - 
and this will be so unless Caricom is a foreign state of which we are a 
part, Dr Harding posited.

This column believes that the government and the Opposition must approach 
all the issues, not for political expediency but in the best interests of 
the people.

(source: Column, Jamaica Observer)