death penalty news
July 16, 2004
CARIBBEAN:
Top Court Reversal: Death Penalty OK in Two States
The jurisdictions of the UK-based Judicial Committee of the Privy Council
and the Caribbean Court of Justice are at the core of a hot debate that has
now received more fuel with the Council's reversal of a ruling, in practice
paving the way for Barbados and Trinidad and Tobago to institute the death
penalty.
Jamaican Prime Minister PJ Patterson did not have to wait long for his
point to be proven right.
During the just concluded Caribbean Community (CARICOM) summit, Antigua and
Barbuda Prime Minister Baldwin Spencer made it clear that the majority of
his citizens were wary of abandoning the UK-based Judicial Committee of the
Privy Council as the region's court of last resort, particularly after
three recent council judgments found "unanimous decisions of our Court of
Appeal were fatally flawed".
"Many Antiguans and Barbudans, perhaps a majority of my compatriots, see
these judgments as definitive cases against transfer of final appellate
jurisdiction to the (new) Caribbean Court of Justice (CCJ)," Spencer said.
But Patterson, a prominent constitutional lawyer, reminded Spencer and his
Caribbean audience that such an argument had little merit, since final
courts could also reverse their original judgment.
And, as if to endorse Patterson's position, the Privy Council last week
announced it was backtracking on a previous judgment that the mandatory
death sentence in Barbados and Trinidad and Tobago was unconstitutional.
In a 5-4 verdict the majority noted, "the decision as to whether to abolish
the mandatory death penalty must be, as the constitution intended it to be,
a matter for the parliament(s)" of the two countries.
The decision fuels the arguments of supporters of the CCJ, which some
opponents claim will be a "hanging court" for governments in the 15-state
CARICOM that are out of step with developments in human rights law.
A similar argument was made by the dissenting justices in the Privy
Council's decision. "Times have changed," they wrote. "Human rights values
set higher standards today. The common endeavour, to rid the world of man's
inhumanity is no longer acceptable."
"To condemn every person convicted of murder to death regardless of the
circumstances is a form of inhumane punishment," they added.
However, the Privy Council found that in the case of Jamaica, the use of
the mandatory death sentence was illegal.
The Jamaica case involved Lambert Watson, who was sentenced to death for
the 1997 murders of his common-law-wife and their daughter. The Privy
Council found that the country's Offences Against the Person Act (1992),
which introduced the mandatory death sentence for capital murder was
inconsistent with section 17(1) of the Jamaican constitution.
Thus, according to the law lords, any death sentence passed in Jamaica
since the Act was introduced in 1992 must be held to be illegal. The
judgement means that all those sentenced to death in the past 12 years
would have their case returned to the Supreme Court for sentencing.
Jamaican Justice Minister AJ Nicholson said the ruling means the death
sentence imposed on Watson would be set aside. It is now up to the local
courts when hearing capital murder cases to impose the death sentence or a
lesser punishment, Nicholson added in a statement.
Human rights activists in Jamaica were nonetheless pleased with the Privy
Council ruling.
"It establishes a principle which is consistent with our concept of human
rights and fairness in the judicial system and the administration of
justice," said Lloyd Barnett, chairman of the Independent Jamaica Council
for Human Rights.
Ironically, the Privy Council judgements were delivered as the region's
leaders were endorsing the selection of former Trinidad and Tobago chief
justice Michael de la Bastide to head the CCJ.
To be headquartered in Port of Spain, the court will be inaugurated Nov. 6.
"I do not want the message or signal to go out that this Caribbean Court of
Justice (CCJ) is being brought about to be some hanging court as some would
want to suggest," Barbados Attorney General Mia Mottley told reporters soon
after the ruling by the Privy Council.
The idea for a CCJ was first mooted in 1970. But it did not gain momentum
until 1992, when the 'Report of the West Indian Commission' recommended
establishing a Caribbean Supreme Court as an authoritative regional
institution that could interpret and apply the treaty that established
CARICOM, in order to create the CARICOM Single Market and Economy (CSME).
As a result, the CCJ will have both an appellate and an original jurisdiction.
But opinions are divided on the need for, or desirability, of the CCJ.
Opponents question the ability and willingness of some states to provide
adequate funding for the court to maintain its independence from political
influence, while supporters argue the court will be best suited to
pronounce on issues of regional importance, and so contribute to developing
a regional jurisprudence.
When the three Caribbean islands served notice they intended to challenge
the Privy Court's ruling on the mandatory death sentence last year, they
made it clear the challenge would focus on protecting the constitution and
parliamentary privilege.
Over the past 10 years, "Caribbean governments have had to contend with
uncertainty in the administration of justice, (and) we believe that this
judgement brings certainty to the interpretation of the law and to the
applicability of the law," Mottley told reporters.
She said the integrity of the Barbados constitution had been at stake after
the first Privy Council verdict, since "laws beyond the death penalty would
stand to fall."
She called last week's judgement "a victory for the constitution of Barbados."
But Barbados attorney Robert Clarke said the ruling highlights "the problem
the judges faced on deciding on the morality and legality of the death
penalty."
The Barbados Government should "pass legislation, if not to abolish, to
give the judges of the High Court discretionary power to deal with the
penalty of death," Clarke told the Caribbean Media Corporation (CMC).
Trinidad and Tobago Attorney General John Jeremie said the Privy Council
found that it "has no licence to read its own moral values into the
Trinidad and Tobago Constitution."
In a prepared statement Jeremie said he considered "the law in relation to
the application of the death penalty to be finally and conclusively
determined."
There are no plans to change the nature of the penalty in Trinidad and
Tobago, he added, and it will remain as the only punishment for people
convicted of murder regardless of human rights consideration.
Some prominent lawyers in the country disagree with Jeremie.
Human rights lawyer Douglas Mendes said the Privy Council decision "retards
the development of constitutional rights in the country," with the result
being that "we are stick with archaic laws."
Lecturer at the Hugh Wooding Law School and former magistrate Dana Seetahal
argued the death sentence should be reserved only for "exceptional cases"
of murder.
"What the courts are saying is that it is not for them to change the law
against the will of Parliament. What I do think is that the way to go about
changing the nature of the death penalty or abolishing it totally, is for
legislative change."
(source: Inter Press Service)
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SOUTH AFRICA:
Assurance on death penalty sought for 'mercenaries'
South Africa had a constitutional duty at the very least to give diplomatic
protection to stop suspected mercenaries held in Zimbabwe from being
sentenced to death or executed by Equatorial Guinea.
A group of international- law experts have argued in papers filed at the
Constitutional Court on behalf of the Society for the Abolition of the
Death Penalty that the death sentence would violate international law,
international customary law and the South African constitution.
The alleged mercenaries are suspected of planning a coup d'etat in
Equatorial Guinea earlier this year.
According to the society's legal team - advocates Wim Trengove SC, Anton
Katz and Max du Plessis - the South African government is compelled by the
constitution to intervene in the fate of the men.
The society was allowed to join the case of 69 men to be heard by the
Constitutional Court, in an extraordinary session, on Monday.
The men want the court to order the government to either bring them back to
the country or prevent them from being extradited to Equatorial Guinea to
stand trial.
Mariette Kruger, the South African lawyer for Simon Mann, the 70th alleged
mercenary and group leader, said yesterday her client felt "most unhappy
about the action against the South African government and considered it
unwise, unhelpful and counter-productive".
He no longer wished to be part of it, she said.
The society's legal team, however, made it clear there was no way the
government could wash its hands of its citizens. They focused their
argument on the risk that the men could be sentenced to death and could be
executed.
"The state is obliged under the constitution to take all steps reasonably
open to it to protect the (men) against that risk," they said in papers
before court.
The society's legal team asked the court to order that, at the very least,
the government should seek an assurance from the government of Zimbabwe
that it would not extradite the men to Equatorial Guinea - or at least not
do so without an assurance from Equatorial Guinea that the men would not be
sentenced to death. If they did receive the death sentence, society wanted
an assurance that the sentence would not be carried out.
"We submit that the state is entitled, but not obliged, under international
law to afford diplomatic protection to the applicants against the risk that
they may be sentenced to death and executed in violation of international law.
"It is, however, obliged to do so under the constitution ... It would be a
violation of international law if the applicants were to be sentenced to
death without a fair trial."
The team dismissed the government's argument that it is bound only by its
constitutional duties in domestic situations, stating that this
interpretation "unduly" strained the interpretation of the constitution.
They said the South African government was compelled to act subject to the
constitution, both locally and in the international domain - simply because
there would be no government without the constitution.
"It can never escape the constitution because it has no existence and no
powers beyond the constitution."
(source: The Star, South Africa)
============================
SOUTH KOREA:
Uri Seeks to Abolish Capital Punishment
The ruling Uri Party is seeking to submit a special bill to the National
Assembly next month to do away with the death penalty.
The legislation, which is currently being prepared by Rep. Yoo In-tae, will
introduce life sentences without commutation to replace capital punishment.
``Some party members oppose the abolition of the death penalty because it
will result in punishing those on death row in the same way as lifers
though the two should be treated differently,'' a secretary to Yoo said.
``However, life imprisonment without commutation will stifle arguments like
this presented by proponents of the death penalty.''
The current rules for life imprisonment allow a prisoner to receive parole
or a reduced sentence for certain reasons after he or she serves 10 years.
In the new legislation, Yoo will insert so-called ``absolute'' life
sentences to replace the death penalty.
``We are now trying to persuade lawmakers from the ruling and opposition
parties to join the move to eliminate capital punishment,'' the secretary
added. ``Officials of the Uri Party have shown a very positive response to
the idea.''
With the 152-member liberal party currently controlling a majority in the
299-seat National Assembly, the bill will likely be passed in the next
irregular session, slated for Aug. 15.
Rep. Choe Yong-gyu of the Uri Party also said the death penalty does more
harm than good in Korean society and his party should help abolish the
punishment.
Public opposition to the death penalty has been increasing, supported by
civic groups.
This will be the third time that lawmakers attempt to introduce a special
bill to abolish the death penalty. In the two previous cases, the bills
were not even brought to a plenary session.
`` I am advocating the abolition of the capital punishment in order to end
South Korea's shameful history,'' the secretary quoted Yoo as saying.
Yoo was once condemned to death himself for pro-democratic activities in
fighting the authoritarian regime of late President Park Chung-hee when he
was a university student.
In 1974, a dozen student leaders including Yoo received death penalties in
courts-martial. However, Yoo's execution was delayed and he was pardoned
the following year.
(source: Korea Times)
