Stephen Vascianne, Contributor
LAST WEEK, one of my distinguished Gleaner colleagues wrote about aspects of the death penalty as administered in Jamaica. He was particularly scathing about the mandatory death penalty law that was in place in this country from the early 1990s until last year when the Judicial Committee of the Privy Council struck down the law. This article is prompted, in part, by my colleague's perspective on the matter.
The mandatory death penalty law introduced by the Government of Jamaica in the early 1990s was meant as an ameliorative device. Prior to the passage of that law, all convictions for murder would automatically lead to the imposition of the death sentence by the judge concerned. If you committed murder, you would be executed, unless, of course, the local Privy Council granted mercy. That position is still the law in Trinidad and Tobago and Barbados.
The Jamaican Government took the view that this approach was too stringent. Thus, it introduced legislation not challenged by the Opposition at the time - under which only some types of murder would be treated as capital murder, giving rise to the death penalty. Under the law, as amended, capital murder included murder in the course of a number of felonies - such as robbery, arson of a dwelling place, sexual offences, and terrorism. Under the amended law, as well, the capital murder charge was placed on persons found guilty of more than one murder, and on persons who murdered judges, jury members, members of the security forces, justices of the peace and so on.
NO CURRY FAVOUR
My colleague suggests that the effect of this legislation was to ensure that if you killed a politician, you would be executed, and implies that this, in itself, confirms how unjust the law was. Thank heavens that the Privy Council struck down this blatant attempt at currying favour for politicians of both the PNP and the JLP, he continues.
But what is the source of this contention? It would be good if the colleague could clarify the point by direct reference to the law. My understanding is that the mandatory death penalty law, as amended, was an attempt to indicate those forms of murder that the society found particularly disruptive or dangerous, and thus worthy of the ultimate sanction. To reduce this to an argument about political preferences in Jamaican society is quite
misleading.
Moreover, when the Judicial Committee of the Privy Council struck down the legislation last year, it did so for reasons that had nothing to do with any perception that the law was biased in favour of politicians. Rather, the Judicial Committee of the Privy Council examined the
legislation against the background of the prohibition on inhuman or degrading punishment or treatment in the Jamaican Constitution.
In the Privy Council's view, the Jamaican law was contrary to the Constitution because it did not give judges any discretion in cases of capital murder, as defined under the Offences Against the Person Act. For the Privy Council, this lack of discretion meant that individual murder convicts were not treated as individuals, and this lack of individualised treatment amounted to the denial of the humanity of the murder convicts.
LAMBERT WATSON
In the case which reached this decision for Jamaica - Lambert Watson v. The Attorney-General - there were a number of technical points. One point that has not been fully discussed concerns the fact that at the time Jamaica introduced the capital/non-capital murder distinction, there was clear judicial authority that Parliament could pass laws requiring mandatory sentences for murder. In other words, in the Lambert Watson decision, the Judicial Committee of the Privy Council was prepared to amend its perception of what constituted inhuman and degrading treatment.
It may well be that this is an appropriate course of action for the Privy Council. After all, human rights standards evolve with the passage of time, as social perspectives change.
Notice, however, two points. First, in the United States of America, there is a rather intense debate about whether judges should apply constitutional principles as they were understood at the time the constitution was ratified, or whether they should apply those principles in light of changes in society. In Jamaica, we have not really had that debate - but our highest court based in London - has implicitly taken a position on the matter.
Secondly, we should note that the Judicial Committee of the Privy Council was able to overturn Jamaica's mandatory death penalty law because this law had been amended subsequent to the date of independence. The Jamaican Constitution contains a controversial savings clause to the effect that laws that existed prior to independence cannot be challenged on the basis that they are contrary to fundamental rights and freedoms recognised by the Constitution. Had the Jamaican authorities not amended the mandatory death penalty following independence, the old, draconian law could not have been struck down by the Privy Council.
Finally, it is appropriate to note that the Government has acted in keeping with the principles of the rule of law on this question. Following the Lambert Watson decision, Parliament has amended the law in order to reflect the main principles put forward by the Privy Council. If one commits capital murder today - or a form of murder that would have been capital murder under the pre-Lambert Watson dispensation - then the judge will have the option of delivering a sentence of death or life imprisonment. In other cases previously non-capital murder - the judge has other options open to him or her in sentencing.
These rules should not be reduced to unduly simplistic assertions about political motives.
Stephen Vasciannie is a professor at the University of he West Indies and a consultant in the Attorney-General's chambers.
