[Deathpenalty] death penalty news-----worldwide

[Rick Halperin]

May 25



JAMAICA:

What citizens should know


On Friday, May 9, in the Senate, I made a call for the hastening of a
conscience vote to be taken in Parliament regarding the issue of capital
punishment in Jamaica.

I was content to forgo further public comment at that time, since the
leader of government business, at that same sitting of the Senate,
indicated that the date being contemplated for that debate was closer than
we had previously been led to believe.

Another newspaper has, however, proceeded to place the erroneous idea in
the public domain that my call for the debate stemmed from the "fact" that
I saw the death penalty as a deterrent to crime, and that the previous
administration had subscribed to that view.

Wrong! The debate, as I said then, is even more necessary now because the
extraordinarily high number of almost three-quarters of the persons polled
in a recent survey wished for the resumption of the carrying out of the
death penalty and, in such circumstances, it was the duty of
parliamentarians, in a constructive manner, to advise themselves and the
public of the present "parameters".

This is so, because if there is the constant call by the authorities for
our citizens to assist in the fight against crime, as they should, they
are not likely to rally to that call unhesitatingly and aggressively since
the authorities are not seen to be fulfilling their side of the bargain,
as they fail to carry out a penalty prescribed by our law.

see an' blind

Let me relate what a middle-aged man told me at Oracabessa about five
years ago. "Imagine," he said, "you government people keep saying that you
need our help to fight crime. Well, if I witness a murder; go to the
police and give a statement; risk my life and the lives of family members
by going to court several times; testify, and the man is convicted and
sentenced to death; after all of my sacrifice, the sentence is not carried
out.

"Look at the trouble that I have gone to and you people will not carry out
the law. So, this man see an' blind, hear an' deaf," he ended. My efforts
to explain the challenges in the system did not halt his walking away, not
in the happiest of moods.

For me, as a legislator, that citizen of Jamaica at Oracabessa, St Mary,
is entitled to know why a lawful sentence of the penalty of death, or any
other penalty for that matter, has not been carried out in his country for
such a long period of time.

Even though I am of the abolitionist school, I find a point consistently
made by the retentionists quite irresistible. They say that, even if the
death penalty is not a deterrent to crime generally, when a man is
executed after due process of law, that act constitutes a deterrent to
that man killing any other human being.

inform the public

Notwithstanding, it is right that the debate on the retention, or
otherwise, of the penalty be held both for the public to be fully informed
and for certain decisions to be taken, dependent on the outcome of the
vote.

Such a debate should address today's world view and the global approach to
capital punishment. The public should be made aware of the power of the
international lobby for the abolition of the penalty, with its tentacles
stretching in diverse directions: from the Vatican, through the European
Union, to the unyielding zeal and awesome influence of the human rights
family, with their constant refrain of "barbaric"; and even on to men and
women who sit in judgment in death penalty cases.

Jamaicans are entitled to know of the "turn" that our highest court has
taken "towards human rights in the late 1980s", propelled by the influence
and "the impact of the European Convention on Human Rights, through
rulings by the court at Strasbourg critical of the failings of English
common law and English judges", and other factors.

Such other factors, according to Geoffrey Robertson, QC, an influential
British human rights advocate, in his book The Justice Game, included "the
disastrous discovery of how justice had miscarried in serious trials: the
Birmingham Six and the Guildford Four" ... which ..." ended the era of
complacency about police behaviour and the infallibility of the adversary
system".

Robertson was in the lead of the team of lawyers who represented Earl
Pratt at the Judicial Committee.

That new approach towards human rights generally meant that the view that
had been taken by these judges of death penalty issues during the 1980s
and before would now come to be examined through different judicial eyes
at the turn of the final decade of the last century and onwards.

Before 1993, the length of time spent on death row was no bar to the death
penalty being carried out. After 1993, "'self-induced' delay - that is,
delay caused by the exercise (by the condemned man) of rights of appeal -
could now be the subject of complaint".

Jamaicans are entitled to a full public discussion on the piercing impact
of the 1993 Pratt and Morgan and subsequent rulings for Commonwealth
Caribbean countries, the only set of countries on the planet on which a
5-year stricture has been placed for execution after conviction and
sentence.

the citizens right

Our citizens deserve to be made fully aware of the reasoning behind that
earth-shaking decision, and to question how it came to pass that the
judges of the Privy Council made mention, in that very judgment, that,
under the European Convention regime, a period of 7 years has been
declared by the European Court of Human Rights to be the cut-off point for
such purposes: yet, 5 years imposed for Jamaica and the Caribbean.

Our people also have the right and duty to contemplate why the Government
and Opposition in our sister Caribbean territory, Barbados, refused to
accept such a stricture on their ability to carry out the death penalty,
regarding it as an unwarranted encroachment by the judiciary on the
province of the executive and the legislature.

Why did the Government of Barbados find it necessary, Jamaicans may ask,
to go to the extreme length of amending their constitution to do away with
that five-year stricture, instead of merely having the Governor General
issue execution warrants at strategic times to meet the deadline, as
Delroy Chuck and others in the Jamaica Labour Party have insisted, over
time, here in Jamaica?

And, in like manner, our people need to be properly briefed to be able to
pass judgment on the reference, in the House of Representatives by then
Prime Minister P.J. Patterson, himself a distinguished legal mind, to
Pratt and subsequent rulings as judicial activism which is quite beyond
the permissible boundaries.

And why a judge of the Privy Council itself, Lord Hoffmann, found it
necessary to warn his brethren of the chaos that would befall the
administration of criminal justice in the Caribbean if they continued on
the path of a "settled predisposition to come out differently" in these
death penalty cases.

a constructive debate

The debate, then, must be constructive. It must move out of the partisan
cubbyhole of a "lack of political will", a statement which, in itself,
makes no sense whatsoever, but which resonates easily in the tribal wind.

Moreover, this is a discussion that encompasses the protection of the rule
of law. It is about the position that Jamaica sees herself occupying in
the global space, for there are socio-political, economic and security
implications. It is about bringing some juridical and administrative order
to a subject area that runs deep in the fight against crime in our
country.

It must address an unmoving challenge, which is the eagerness of the
international rights lobby to extend the gains that have been made in the
Caribbean concerning the death penalty. Their ultimate goal, of course, is
its abolition, and they are vigilant not to cede any ground on the present
sleeping nature of the sentence.

not worth the effort

The provisions of the proposed Charter of Rights and Freedoms will come to
be finally adjudicated on by the Privy Council. The significance of that
position is not lost on the human rights lobby. Let Geoffrey Robertson
speak from The Justice Game, at page 94, as his team prepared the Pratt
petition: "Our purpose, since we could not abolish executions, was to make
them as difficult as possible, in the hope that retentionist governments
would eventually conclude that the struggle to hang was not worth the
effort."

And at page 100: "The Privy Council would be less open to the criticism of
being a white colonial elephant if more judges from the black Commonwealth
were invited to sit alongside the British Law Lords. However, the struggle
to protect human rights must make use of whatever instruments are
available, and the Privy Council is at present the most potent of these
for 16 Commonwealth countries."

Robertson felt emboldened to proclaim similar sentiments at a Commonwealth
Law Conference, Down Under, not so long ago.

(source: A.J. Nicholson, an attorney-at-law, is the opposition spokesman
on justice; Jamaica Gleaner)