Sept. 6
JAMAICA:
Thoughts on the death penalty
THE EDITOR, Sir:
Following my article and receiving the opinions of others on the same
subject to which Professor Stephen Vasciannie drew the attention of your
readers, I submit my afterthoughts.
This is a note re the logic of the statement that a mandatory death
penalty is inhuman. If the death penalty when mandatory (obligatory) is
inhuman, and when discretionary is not, then the difference between the
two (that is human and inhuman) lies not in the inhumanity of the death
penalty but in the word 'shall' in the law (Offences of the Person Act)
which makes it mandatory.
But the word 'shall' which makes it mandatory, unlike the death penalty,
is not a punishment, but is only an adjective. Therefore to speak of a
mandatory death penalty as being inhuman, is an imprecise and illogical
expression. In my view, it would be better for clarity of expression to
say that, to mandate the imposition of the death penalty is inhuman.
FAIR CHANCE
Further, what in my opinion is really meant is this: To deprive a murderer
of a fair chance to make a plea in mitigation for a less severe sentence
is, to quote section 17(1) of the Jamaica Constitution, "inhuman...
treatment"
The death penalty remains a recognised form of punishment in Jamaica under
section 14(1) of the Constitution even though the Privy Council seeks,
unconstitutionally, to narrow the breadth of the words in the section
which reads:
"No person shall intentionally be deprived of his life save in execution
of the sentence of a court in respect of a criminal offence of which he
has been convicted"
The Privy Council has sought to regulate how and when the power to
sentence is to be imposed. This is an alteration of section 14(1). This is
so, because in section 49(49)(b) of the Constitution 'ALTER' means:
"Alter" includes, AMEND, MODIFY, re-enact with or without amendment or
modification, make different provision in lieu of, suspend, repeal or add
to."
Finally, the Privy Council found its conclusion on the basis in those
decisions of the United States of America which declared that the
mandatory death penalty is inhuman.
The Privy Council basis for doing so in interpreting in a post-Westminster
type Constitution of a former colony is flawed. Its approach was not in
accordance with the principles for interpreting such a Constitution. The
correct approach is as follows:
"... the Constitution of (Jamaica) is now contained in a written
instrument in which it has been sought to formulate with precision the
powers and duties of the various agencies that it holds in balance. That
instrument now stands in its own right; and, while it may well be useful
on occasions to draw on British practice or doctrine in interpreting a
doubtful phrase whose origin can be traced or to study decisions on the
Constitutions of Australia or the United States where federal issues are
involved, it is in the end the wording of the Constitution itself that is
to be interpreted and applied, and this wording can never be overridden by
the extraneous principles of other Constitutions which are not explicitly
incorporated in the formulae that have been chosen as the frame of this
Constitution" (brackets mine).
A PITY
This is an extract from the judgements of the Privy Council in ADEGBENRO v
AKINTOLA 1963 AC 614 at pg. [632]. From Nigeria or that of the Westminster
type Constitution or the Interpretation of its Western Region. It is a
pity that none of the Law Lords who decided LAMBERT WATSON case had been
elevated to the Privy Council and the House of Lords when the Adegbenro
case was decided.
Equally perhaps, counsel for the Crown should have drawn their Lordships
attention to those previous dictor to the Judicial Committee.
I am, etc.,
BERTHAM MACAULAY
(source: Letter to the Editor, Jamaica Gleaner)
IRAN:
URGENT ACTION APPEAL
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6 September 2004
UA 262/04 Death Penalty
IRAN:
Feyz Mohammad (m) aged 16, an Afghan national
Feyz Mohammad, a 16 year old Afghan national, has reportedly
been sentenced to death by a juvenile court in Karaz. He was
accused of distributing approximately 7 kilos of morphine, and
being a member of a drug trafficking gang.
On 31 August, the internet newspaper Peyk-e Iran reported that
Fezy Mohammad had 7 kilos of morphine in his possession at
the time of his arrest. It is not known exactly when he was
detained, but while in detention he is said to have confessed to
transporting morphine from his place of work in Varamin to
Karaz. It is not known under what circumstances this confession
was made.
Feyz Mohammad later appeared before a juvenile court in Karaz,
and was charged with transporting, supplying, purchasing and
selling 7 kilos of morphine. He was then sentenced to death,
though it is currently not known whether the sentence has been
appealed, or whether it has already been upheld by the Supreme
Court. In Iran, all death sentences have to be upheld by the
Supreme Court before they are carried out.
According to the Peyk-e Iran report, Feyz Mohammad was
arrested along with four other members of the drug trafficking
gang. The men, named as Moosa, Abbass, Kamal and Gholam
Hossein, are reported to have been released on bail.
BACKGROUND INFORMATION
Amnesty International has recorded ten executions of child
offenders in Iran since 1990. One execution was reported in
1990, three in 1992, one in 1999, one in 2000, and three in 2004.
On 15 August 2004, Atefeh Rajabi, a girl who was believed to be
16 years old, was reportedly publicly hanged in Neka, in the
northern Iranian province of Mazandaran, for ''acts incompatible
with chastity'', following an alleged unmarried sexual
relationship. According to reports, Atefeh Rajabi was not
mentally competent, and was not represented by a lawyer at any
stage of her trial. Her co-defendant, who was unnamed, was
reportedly sentenced to 100 lashes. He was released after the
sentence was carried out (see MDE 13/036/2004, News Service
No: 210, 23 August 2004, 'Iran: Amnesty International outraged
at the reported execution of a 16 year old girl'.
http://web.amnesty.org/library/index/engmde130362004).
As a party to the International Covenant on Civil and Political
Rights (ICCPR) and the UN Convention on the Rights of the
Child (CRC), Iran is bound not to execute child offenders. Both
treaties provide that capital punishment shall not be imposed for
offences committed by persons under 18 years of age at the time
of committing the offence.
A bill to raise the minimum age for execution to 18 was
reportedly under consideration by the Iranian parliament in
December 2003. However, the bill is not believed to have been
ratified by the Guardian Council, Iran's highest legislative body.
RECOMMENDED ACTION: Please send appeals to arrive
as quickly as possible:
- urging the Iranian authorities to immediately commute the
death sentence against 16-year-old Feyz Mohammad;
- noting that his execution would violate the UN Convention on
the Rights of the Child (CRC) and the International Covenant on
Civil and Political Rights (ICCPR), to which Iran is a state party;
- asking for details of the trial proceedings and any appeals
related to his case;
- seeking assurances that Feyz Mohammad has unconditional
access to a lawyer of his choice, access to his family, and any
medical treatment that he may require;
- stating your unconditional opposition to the death penalty, as
the ultimate cruel, inhuman and degrading punishment and
violation of the right to life;
- expressing concern and dismay that Amnesty International has
recorded 10 executions of child offenders in Iran since 1990,
including three in 2004, and calling on the Iranian authorities to
immediately halt further executions of child offenders;
- urging the Iranian authorities to pass legislation removing the
provision for the execution of child offenders, thereby bringing
Iran into line with its obligations under international law. This
would also be in line with the recommendations of the UN
Committee on the Rights of the Child, which strongly urged Iran
in 2000 to ''take immediate steps to halt and abolish by law the
imposition of the death penalty for crimes committed by persons
under 18''
APPEALS TO:
Leader of the Islamic Republic:
His Excellency Ayatollah Sayed 'Ali Khamenei
The Presidency
Palestine Avenue, Azerbaijan Intersection
Tehran, Islamic Republic of Iran
Fax: 011 98 21 649 5880 (please mark 'For the attention of
the Office of His Excellency, Ayatollah al
Udhma Khamenei, Qom)
Email: [email protected]
(on the subject line write: For the attention of the Office
of His Excellency, Ayatollah al Udhma
Khamenei, Qom)
Head of the Judiciary:
His Excellency Ayatollah Mahmoud Hashemi Shahroudi
Ministry of Justice
Park-e Shahr
Tehran, Islamic Republic of Iran
Email: [email protected] (mark 'Please forward to HE
Ayatollah Shahroudi')
COPIES TO:
Article 90 Commission:
Chairperson, Article 90 Commission (Komisyon-e Asl-e Navad)
Majles-e Shura-ye Eslami
Imam Khomeini Avenue
Tehran, Islamic Republic of Iran
Fax 011 98 21 646 1746 (can be difficult to reach, please
be patient)
Email: [email protected]
Iranian Interests Section
Embassy of Pakistan
2209 Wisconsin Ave NW
Washington DC 20007
PLEASE SEND APPEALS IMMEDIATELY.
Amnesty International is a worldwide grassroots
movement that promotes and defends human
rights.
This Urgent Action may be reposted if kept
intact, including contact information and stop
action date (if applicable). Thank you for your
help with this appeal.
Urgent Action Network
Amnesty International USA
PO Box 1270
Nederland CO 80466-1270
Email: [email protected]
http://www.amnestyusa.org/urgent/
Phone: 303 258 1170
Fax: 303 258 7881
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END OF URGENT ACTION APPEAL
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