CAPITAL PUNISHMENT – IS THE CARIBBEAN OUT OF STEP?

Posted on March 26, 2009
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By Miss Nancy Anderson and Miss Gillian Burgess

 

On November 15, 2007 a committee of the United Nations (UN) voted in favour of a resolution calling for a global moratorium on the use of the death penalty with a view to eventually abolishing the death penalty entirely. The resolution will go before the General Assembly for a vote in December 2007[i]. Although UN General Assembly resolutions are not binding, they are morally persuasive and may be followed by more binding instruments. According to Amnesty International’s statistics two – thirds of the countries of the world have abolished the death penalty in law or in practice[ii]. In those countries which retain the death penalty only twenty-five countries carried out executions in 2006 and six countries accounted for ninety percent of the executions.

 

There is considerable agitation for the re-introduction of the death penalty in most of the Caribbean countries. In Jamaica, while on the election campaign trail, Derrick Smith, the present Minister of National Security indicated his desire to carry out executions once his party was in power. Certainly such comments go against the grain of international trends. Is the Caribbean out of step? 

 

INTERNATIONAL TRENDS

According to Amnesty International, as at October 2, 2007 ninety of the countries of the world have abolished the death penalty for all crimes.[iii] Another eleven countries have abolished the death penalty for everything except war crimes. Together those countries account for a half of the countries of the world. Amnesty adds to that number thirty two countries that have not applied the death penalty in the last ten years and labels those countries abolitionist in practice.

 

Modern records of the application of the death penalty records Venezuela as the country that first abolished the death penalty in 1863 but there are accounts of the abolition of the death penalty in China during the reign of the Tang Dynasty in 747[iv]. Ironically the Peoples Republic of China now carries out the most executions in the world. In 2006 China executed almost as many persons as the United States executed since 1977 when the death penalty was re-introduced there. 

 

In the post World War II period momentum for the abolition of the death penalty increased. In 1976 only sixteen countries had abolished the death penalty. Since then not only has the number of countries which have abolished the death penalty increased but there has been a notable increase in the international pronouncements and conventions aiming to restrict the application of the death penalty. General Assembly resolutions 2857 (XXVI) of December 20, 1971 and 32/61 of December 8, 1977 stated that the abolition of the death penalty was desirable.

 

CONVENTIONAL RESTRICTIONS

The International Covenant on Civil and Political Rights (ICCPR) which entered into force March 23, 1976[v] is one of the first conventions that restricted the application of the death penalty. Article 6 of the ICCPR restricts the application of the death penalty to the most serious crimes and even then the sentence must be pronounced by a competent court. The article goes on to ban the execution of women and persons under eighteen years old. The right to seek pardons, amnesty and commutation of sentence are preserved. The ICCPR has 152 signatories to date.

 

The ICCPR has two optional protocols. The second Optional Protocol which entered into force December 15, 1989 has been ratified by sixty countries and signed by another seven countries[vi]. Article 1 of the Second Optional Protocol to the ICCPR prohibits the execution of anyone in the state parties.

 

Antigua and Barbuda, the Bahamas, St. Kitts and Nevis and St. Lucia have not ratified the ICCPR and none of the Caribbean countries have ratified the second Optional Protocol.

 

The United Nations Convention on the Rights of the Child by Art. 37 prohibits the execution of persons under the age of eighteen. All Caribbean countries have ratified this document.

 

The other three conventions which restrict capital punishment are regional. One is the Protocol to the American Convention on Human Rights to abolish the death penalty and the other two are Protocols 6 and 13 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) which have been ratified by forty five and thirty seven countries respectively. None of the independent Caribbean states are party to either of these conventions.

 

JUDICIAL INFLUENCE

 

The death penalty in the English speaking Caribbean is a colonial inheritance. Every independence Constitution from 1962 on has identical or very similar wording to the Jamaican Constitution on the issue of capital punishment. “No person shall intentionally be deprived of his life save in execution of sentence of a court in respect of a criminal offence of which he has been convicted”. All the former English colonies in the Caribbean have maintained hanging as the method of execution for murder. Savings clauses in the independence Constitutions of these former colonies have proved critical in the Caribbean situation. They have restricted the capacity of the judiciary to apply the constitutional principle that the death penalty is inconsistent with the guarantees against inhumane punishment and treatment.     

 

Beginning with the case of Pratt and Morgan[vii] in 1993, advocates in the Caribbean have fought against the death penalty through the courts, particularly the Privy Council, the highest appellate court for the region. In the Pratt and Morgan case the Privy Council ruled that five years on death row created a presumption of inhuman and degrading punishment and ordered their sentences commuted to life imprisonment, thus establishing a five-year limit for inmates of death row, applicable through out the region.

 

 

 

It has been argued that the decision in Pratt and Morgan precipitated Jamaica’s withdrawal from the First Optional Protocol of the ICCPR in 1997[viii] because it reduced the length of the appeals process. This Protocol allowed persons alleging human rights violations to make individual petitions to the United Nations Human Rights Committee. This was one of the two international organs that considered petitions from individuals alleging human rights violations. The other organ is the Inter American Commission on Human Rights (IACHR).

 

In Jamaica the government was so anxious to execute someone that death warrants were read to persons who still had pending appeals to the IACHR. In Neville Lewis et al v The Attorney General[ix] the Privy Council upheld a constitutional challenge against the reading of the death warrants under these circumstances and also held that at the hearing to determine whether a person has the right to make submissions to the Governor General while he was determining a mercy petition.

 

Two years later the Privy Council, upholding a decision of the Eastern Caribbean Court of Appeal, held that the mandatory imposition of the death penalty was unconstitutional in a trilogy of cases Reyes v R[x], Fox v R[xi] and Hughes v R[xii]. These cases emanated from Belize, St. Lucia and St. Vincent respectively.

 

In 2004, the Privy Council struck down the mandatory imposition of the death penalty in Jamaica[xiii], while upholding it in Trinidad and Tobago[xiv] and Barbados[xv]. By these judicial decisions, the population on death row in the Caribbean has been greatly reduced while the death sentence remains the law.

 

Though Jamaica has maintained a moratorium on executions since February 1988, calls have been made members of both political parties, the People’s National Party (PNP) and the Jamaica Labour Party (JLP) which won the recent elections, to ‘re-introduce hanging”.  

 

LEGISLATIVE CHANGES

 

In the authors’ opinion attempts to counter the decisions of the Privy Council through legislative changes have been slow because the decisions of the Privy Council in the aforementioned cases dealt with interpretation of sections of the Constitution which require the cooperation of the government and the opposition to change.

Only Barbados has amended her Constitution in 2002 to nullify the effects of the Pratt and Morgan, the decision in Neville Lewis and any possibility of a later challenge on the grounds of conditions of detention.[xvi] 

 

Jamaica’s amendments to the Offences Against the Person Act in 1992 were significant in the Privy Council decision, Watson v. The Queen, that held that the mandatory imposition of the death penalty in Jamaica s unconstitutional. The reaction to this decision resulted in a further amendment to the Offences Against the Person Act in 2005 making provisions for re-sentencing of the men then on death row.

CONCLUSION

 

Several leading Caribbean politicians had attacked the Privy Council as being an abolitionist court and represented that that was a reason for advocating the abolition of appeals to the Privy Council and the establishment of the Caribbean Court of Justice (CCJ) as the final court of appeal for the region. This has had the unfortunate result of portraying the CCJ as a court which would be compliant with governments’ policy by becoming a ‘hanging’ court.

 

So far only Barbados and Guyana have acceded to the appellate jurisdiction of the CCJ. Other governments on the basis of the decision of the Privy Council in Independent Jamaican Council for Human Rights et al v The Attorney General et al[xvii] must secure amendments to entrenched provision of their constitutions in order to establish the CCJ as their final court of appeal in substitution for the Privy Council. This normally requires a high degree of political consensus.

 

Ironically, the CCJ in an appeal by the Government of Barbados, A-G of Barbados and others v. Jeffrey Joseph and Lennox Ricardo Boyce, CCJ Appeal No. CV.2 of 2005, reaffirmed the principles established by the Privy Council in relation to the unconstitutionality of long delays in the execution of the death penalty and of the mandatory imposition of capital punishment.

 

 

 

 

 


 

[i] http://www.un.org/apps/news/story.asp?NewsID=24679&Cr=general&Cr1=assembly

 

[ii] http://web.amnesty.org/pages/deathpenalty-facts-eng

 

[iii] A list of 86 of the countries that abolished the death penalty can be found at http://encarta.msn.com/media_701500832/Countries_that_Have_Abolished_the_Death_Penalty_for_All_Crimes.html. In 2007

 

[iv] Benn, Charles. 2002. China’s Golden Age: Everyday Life in the Tang Dynasty. Oxford University Press.

 

[v] http://www.unhchr.ch/html/menu3/b/a_ccpr.htm

 

[vi] http://www.unhchr.ch/pdf/report.pdf

 

[vii]Pratt and Morgan v R  [1994] 2 AC 1; [1993] 3 WLR 995

 

[viii] http://www.unhcr.org/home/RSDCOI/3ae6a5ad0.html#_ftnref1

 

[ix][2001] 2 A.C 50; [2000] 3 WLR 1785 PC

 

[x] [2002 UKPC 11; [2002] 2 AC 235; [2002] 2 WLR 1034

 

[xi] [2002] UKPC 13; [2002] 2 AC 284; [2002 2 WLR 1077

 

[xii] [2002] UKPC 12; [2002] 2 AC 259; [2002] 2 WLR 1058

 

[xiii] Lambert Watson v R [2004] UKPC 37; [2005] 1 AC 472; [2004] 3 WLR 841  The Offences Against the Persons (Amendment) Act was passed in 2005 to comply with this decision

 

[xiv] Charles Matthew v The State [2004] UKPC 33; [2005 1 AC 433; [2004] 3 WLR 812

 

[xv] Lennox Boyce et al v R [2005] 1 AC 400;[2004] UKPC 32 [2004] 3 WLR 786

 

[xvi] http://www.ilo.org/dyn/natlex/docs/SERIAL/62428/56220/F659875367/BRB62428.pdf

 

 

[xvii] [2005] 2 AC 356; [2005] UKPC 3

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