[Deathpenalty] death penalty news----worldwide

[Rick Halperin]

Dec. 14



JAMAICA:

Death penalty could falter in Senate


WHAT would happen if the Senate votes against capital punishment next
Friday?

Parliament's clerical staff is unsure and so is Prime Minister Bruce
Golding. However, he has told the press that the decision of the House of
Representatives, comprised of elected members, should take precedence if
the Senate votes against it.

"I think a great deal of weight would have to be attached to what the 60
members of parliament said, because those were the persons who were
elected by the people," Golding said.

A close vote in the Senate has been indicated by the contributions to the
debate in that House so far, and the fact that a number of members are
lawyers with liberal views.

Unlike the House of Representatives, where it was very clear from early
where the wind was blowing, the signals are less clear in the Senate. So
far, about 13 senators have spoken in the debate and the indications are
as follows:

. for retention - Dwight Nelson, Arthur Williams, Ronald Robinson, Warren
Newby, Basil Waite, in addition to Navel Clarke; and

. against retention - Trevor MacMillan, Dennis Meadows, Mark Golding, and
Sandrea Falconer.

Attorney General and Minister of Justice Dorothy Lightbourne, who is also
the Leader of Government Business in the Senate, did not state a position,
neither did Leader of Opposition Business A J Nicholson.

Those left to speak are: Don Wehby, Andre Franklin, Desmond McKenzie,
Hyacinth Bennett, Thomas Tavares-Finson, Norman Grant, K D Knight and Noel
Sloley.

It seems likely, however, that those supporting retention will get home by
a narrow margin, but this will depend largely on how Opposition senators
like Knight and Nicholson, and Government senators Wehby and Bennett vote.

It will be interesting to see whether the Opposition will use the
opportunity of a "yes" vote to force the prime minister's hand in
supporting an amendment to the constitution they proposed, which would
remove the Privy Council's five-year stricture on carrying out the death
penalty.

Golding had indicated a compromise with the Opposition when they
threatened to pull out of the debate in the House unless their amendment
was attached to his resolution. The compromise was for bipartisan support
of the Opposition's resolution, if Parliament agreed to retain the death
penalty.

The Opposition's proposal read, "Be it resolved that the Constitution of
Jamaica be amended to remove the 5-year stricture in relation to the
carrying out of the death penalty after conviction, and also that the
rulings of the Governor General's Privy Council concerning the prerogative
of mercy cannot be inquired in a court of law."

This proposal has been criticised by some human rights groups and is
expected to be the most contentious of the current death penalty issues.

Uncertainty surrounds anti-crime bills

There is still some uncertainty as to how committed Opposition
parliamentarians are to the 6 anti-crime bills tabled in the House of
Representatives in September by Prime Minister Golding.

Golding had expressed the wish to have the bills, which followed the Vale
Royal bipartisan discussions this year, dealt with urgently, in light of
the crime wave sweeping the island. But 3 months later, there is still no
indication of how soon they will be passed, or even if there will be
bipartisan support.

The report of the Joint Select Committee that studied the bills was tabled
in Parliament last week. The report bore none of the signatures of the six
Opposition members, while all 8 Government members signed.

It was interesting to note, too, the attendance record of the Opposition
members of parliament. Former minister of national security, Dr Peter
Phillips, attended only 1 of the 6 meetings. The names of Sharon
Haye-Webster and Fitz Jackson were removed after the 1st 2 meetings, and
replaced by Ronald Thwaites and Robert Pickersgill, who each attended
three of the next four meetings. The committee received only one apology
(from Thwaites).

Senator Dorothy Lightbourne, who chaired the committee, as well as Colonel
Trevor MacMillan, Pearnel Charles, Laurence Broderick, Daryl Vaz, Dr
Arthur Williams, St Aubyn Bartlett, AJ Nicholson, KD Knight and Mark
Golding attended every meeting. Senator Tom Tavares Finson missed one.

(source: Jamaica Observer)





********************

Death penalty retained: What's next?


Parliamentarians on November 25 voted by a majority of 35 to 15 to retain
the death penalty. This decision accords with the views of the
overwhelming majority of Jamaicans. The question being asked by a number
of Jamaicans, is now that the parliamentarians have voted to retain the
death penalty, what's next?

If the long parliamentary debate and decision on this issue is not to be
regarded as an exercise in futility, or a side-show, as some have
described it, or as treading water (going nowhere) as one parliamentarian
has described it, then the next step is to do everything possible to
impose the death penalty, where it is so decided by the courts.

However, in order to be able to effect the death penalty, the Government
has to address the Pratt and Morgan 'five-year' rule. In Pratt and Morgan
v the Attorney General of Jamaica the Judicial Committee of the Privy
Council in 1993 held that for capital murder, if the time elapsed between
the sentence of death and execution exceeds five years, "there will be
strong grounds for believing that the delay was such as to constitute
inhumane or degrading punishment or other treatment".

AMENDMENT BY BARBADOS

During the course of the debate in Parliament, Prime Minister Golding
argued that the Govern-ment did not accept that it was impossible to
complete all the necessary (legal) processes leading up to the imposing of
the death penalty within 5 years. The prime minister stated: "Therefore,
we (the Government) do not accept that the only way that capital
punishment can be imposed is by going the Barbados route to avoid the
Pratt and Morgan strictures".

Faced with the 'five-year' rule dilemma the Government of Barbados in 2001
amended its Con-stitution to address this issue. The amendment, which was
passed in Barbados, stated, in essence, that the Judicial Committee of the
Privy Council should not hold in contravention of the Barbados
Constitution the imposition of a mandatory sentence of death imposed on a
person in respect of a criminal offence under the law of Barbados of which
he had been convicted.

The constitutional amendment was passed in Barbados by a 2/3 majority,
that is to say, with the concurrence of the Opposition.

The decision of the Judicial Committee of the Privy Council was no doubt
intended to encourage the speedy delivery of justice, an objective which
any reasonable person or Government would support.

However, no matter how supportive persons are of 'speedy trials', in
practice, the Pratt and Morgan decision has made it virtually impossible
for the Jamaican state to carry out the death penalty.

The time period of 5 years as decided by the Judicial Committee of the
Privy Council is too short to properly accommodate the various appellate
and related procedures now available to persons facing the death penalty.
Any lawyer worth his salt can use the appellate processes now available to
the convicted murderers to delay the process for more than 5 years.

PROCEDURES TO FOLLOW

The Government of Barbados knew this and that is why it has amended the
Constitution. The Government of Jamaica, as outlined in the sentiments
expressed by Prime Minister Golding, seems ignorant of this reality.

To illustrate, if a person is convicted of murder, and sentenced to death
in Jamaica, the following procedures must be respected as a matter of law:

1. The convict may appeal from the High Court to the Jamaican Court of
Appeal on points of law concerning liability;

2. The convict may appeal from the Court of Appeal to the Judicial
Committee of the Privy Council on points of law concerning liability;

3. If the convict does not prevail on points of law concerning liability,
he may bring a constitutional motion to the High Court;

4. He may appeal from the decision of the High Court to the Court of
Appeal on the constitutional issues he has raised;

5. He may appeal from the Court of Appeal to the Judicial Committee of the
Privy Council on the constitutional issues he has raised;

6. If he does not prevail before the Judicial Committee of the Privy
Council on constitutional issues, he may petition the Inter-American
Commission on Human Rights about human-rights issues raised by his
conviction or sentence; the Inter-American Commission may only make
recommen-dations concerning the convict, but nonetheless, by virtue of the
reasoning of the Judicial Committee of the Privy Council in Neville Lewis
vs The Attorney General of Jamaica, the state must await this
recommen-dation no matter how long it takes.

In the Neville Lewis case, the Judicial Committee of the Privy Council
decided that the execution of a death sentence by a decision of the
Jamaica Privy Council in relation to the exercise of the prerogative of
mercy has to consider the report of any international human-rights body.

7. After the recommendation of the Inter-American Commission is
considered, if the State still believes that the execution should be
carried out, the convict then has the right, in accordance with Sections
90 and 91 of the Jamaican Constitution, to seek pardon from the local
Privy Council, presided over by the governor general;

8. Following the decision of the local Privy Council, the convict may
apply to the High Court for constitutional redress by claiming that some
aspect of the procedure followed by the Privy Council was defective;

9. If the High Court does not provide a satisfactory answer concerning the
point taken in respect of the local Privy Council, the convict may appeal
to the Jamaican Court of Appeal;

10. If the Court of Appeal does not provide satisfaction to the convict,
he may then appeal to the Judicial Committee of the Privy Council on the
point in respect of the local Privy Council.

GOVERNMENT MUST EXPLAIN

Given this range of safeguards, it is highly unlikely that any
death-penalty sentences will be carried out within the five years of
sentence. That is why I have a difficulty understanding why Prime Minister
Golding is of a different view. It is important that either he or his
minister of justice, Dorothy Lightbourne, explain to the Jamaican people,
including the 35 members of Parliament who voted for the retention of the
death penalty how the Government plans to do so within the context of the
'five-year' rule.

An amendment to the Constitution, as is done in Barbados to address this
'5-year' rule, is not intended to deprive the convict of the 10 safeguards
enumerated above. It will only prevent the State from undertaking the
impossible task of carrying out the stages within 5 years.

Some of my learned colleagues may be mindful to disagree with my position
that the Judicial Committee of the Privy Council in the Pratt and Morgan
case did impose a '5-year' rule. They may argue, perhaps quite
persuasively, that the Judicial Committee of the Privy Council has noted
in cases subsequent to Pratt and Morgan, that the 5-year time period, as
set out in that case, is only a guideline meant to ensure speedy justice.

However, they should be aware that in the later case of Neville Lewis vs
The Attorney General of Jamaica the Judicial Committee of the Privy
Council appears to have treated the '5-year' guidelines as a rule of law,
as in that case, the law lords found that almost 5 years had elapsed, and
then proceeded to commute the death sentence without any further
reasoning.

CONSCIENCE VOTE

During the national election campaign of 2007, the Jamaica Labour Party
(JLP), which was then the Opposition, accused the People's National Party
Government of lacking the will to carry out the law in respect of the
death penalty. Others in the Opposition went even further, promising that
if elected, a JLP government would impose the death penalty within 100
days.

It is now more than 14 months since a new government has been elected and
the only thing it has done is to initiate another debate and conscience
vote on the death penalty, thus regurgitating a similar exercise, which
took place on January 30, 1979.

If the current government is really serious about the imposition of the
death penalty, then the next step is to join hands with the Opposition and
amend the Constitution in order to address the 'five-year' rule as
directed by the Judicial Committee of the Privy Council, which has made
the implementation of the death penalty almost impossible.

(source: Delano Franklyn is an attorney-at-law; Jamaica Gleaner)