A.J. Nicholson, Contributor Mr. Derrick Smith, the Opposition spokes-man on national security, has recently pronounced, not for the first time, on the death penalty. Mr. Smith's position, as reported in The Gleaner two Fridays ago, is that the Jamaica Labour Party (JLP) would resume hanging if it forms the next government. In a manner deliberately designed to be offensive, the Leader of Opposition Business in the House described members of the current Government as "cowards", for not carrying out the death penalty in the last 17 years.
I was initially inclined to regard Mr. Smith's comments as pointless political posturing, and therefore to refrain from responding to the story. I notice, however, that The Gleaner gave the matter front-page treatment, and that last Sunday, this paper dedicated an editorial to the question. In the circumstances, I am prompted to comment, lest silence be taken as acquiescence to Mr. Smith's superficial analysis of a complex question.
Mr. Smith's insistence that the JLP Government will hang murderers ignores the current legal situation concerning the death penalty in Jamaica.
As Mr. Smith well knows, the death penalty is still the prescribed punishment for certain types of murder in Jamaica. The Government has consistently sought to enforce this penalty, but in the process, it has encountered a number of obstacles put in place by Jamaica's highest court, the Judicial Committee of the Privy Council. Given Mr. Smith's shallow outburst, I am obliged to explain the situation that faces the country as a result of the relevant Privy Council decisions.
Pratt and Morgan case
In the first place, the implementation of the death penalty has been stymied by the Privy Council decision in Pratt and Morgan v The Attorney-General of Jamaica (1993) (30 JLR 473). In that case, the Privy Council found that, in capital cases, if the time elapsed between the sentence of death and execution exceeds five years, "there will be strong grounds for believing that the delay was such as to constitute inhumane or degrading punishment or other treatment."
In effect, the Privy Council held that if the five-year period passed before execution, there would be a presumption that the convicted murderer should not be executed. This, by itself, would not prevent the death penalty, for in practice the five-year period could be met by the Jamaican courts. Notice, however, that at the time of the Pratt and Morgan decision, the five-year period also included time for murder convicts to take their cases to the United Nations Human Rights Committee in New York, and the Inter-American Human Rights Commission in Washington D.C.
Thus, at the time of Pratt and Morgan, the convict could appeal through the Jamaican court system, and also go tothe two international human rights bodies, one after the other. As a result, the five-year time period was easily superseded in practice. And, for this reason, the Government of Jamaica withdrew from the jurisdiction of the United Nations Human Rights Committee in January 1998. Mr. Smith, please note: Jamaica withdrew from the United Nations Human Rights Committee precisely because the Government wishes to be able to carry out the death penalty.
But, even after the Government withdrew from the United Nations Human Rights Committee, death penalty executions have been stymied by the slow movement of cases before the Inter-American Commission on Human Rights. On this issue, there is statistical evidence. In Pratt and Morgan, the Privy Council, in calculating the five-year period between sentence and execution, had assumed that it would take approximately 18 months for cases to be heard by the UN Human Rights Commission and the Inter-American Commission on Human Rights (nine months each, one may assume).
Now note Mr. Smith: Jamaica has recently undertaken a study of the time period taken by the Inter-American Commission on Human Rights to completely hear and respond to the 18 death-penalty petitions between 1993 and 2003. In none of these 18 cases were petitions heard and fully considered within nine months. None. The shortest time period for any of the 18 cases was one year, while the longest was three years five and a half months. Seven of the cases lasted for more than two years before the Inter-American Commission. If the Government has five years to have death penalty appeals completed, and the commission acts in a dilatory manner, the time limit will be defeated.
Neville Lewis case
Moreover, as I have maintained in the Senate, in some instances, the Privy Council moves the goalposts in death penalty cases. In Pratt and Morgan, the five-year limit was a presumption, meaning that if the Government had good reasons for not completing the appellate procedures in five years, execution could arguably still go ahead. But, then, as Mr. Smith may know, when the issue of timing returned to the Privy Council in the Neville Lewis case in 2000, the Privy Council appeared to change the five-year presumption to a five-year rule.
In other words, in the Neville Lewis case, the Privy Council suggested that once five years have elapsed, there can be no execution, notwithstanding the circumstances that prompt the five-year period to be missed. In this case as well, the Privy Council: (a) held that the Government of Jamaica could not execute persons until their matters have been heard by the relevant international human rights bodies; (b) overturned its earlier jurisprudence concerning the work of our local mercy committee; and (c) changed its reading of the provisions of the Jamaican Constitution on the matters that are to be brought before the mercy committee in death-penalty cases.
The broad, if not breathtaking implications of the Neville Lewis decision prompted a stinging dissenting judgment from Lord Hoffman. Hoffman noted that it is obvious to the members of the Privy Council that in discharging their duties they should not be influenced by their personal views on the death penalty. Then, he said pointedly, "But the wider public may need to be reminded." In other words, this decision could well prompt the wider public to assume that the Privy Council is opposed to the death penalty, and their personal views have come to bear on the matter.
Lambert Watson case
It should also be noted that when the Government met the five-year limit in the Lambert Watson case (2004), the Privy Council raised another point in opposition to the death-penalty law in Jamaica. More specifically the mandatory death penalty had been accepted as part of Jamaican law certainly since the 19th century, their lordships found in 2004 that Jamaica's mandatory death penalty, as applied, was contrary to the constitutional rule that persons should not be subject to inhuman punishment or treatment.
For each of these changes (or developments) in the law brought about by the Privy Council, the Government has responded in an effort to implement the death penalty for our most serious murders. We will continue to do so, for we take the view that there is no point in keeping the death penalty on the books if it is not to be carried out in practice. But the obstacles to implementing the sentence remain real and difficult to overcome - a point that Mr. Smith dismisses without even a word of consideration.
Finally, as Mr. Smith reflects more soberly on this issue, away from the headlines and without the adrenaline rush of the party political pulpit, he should answer these questions. If the death penalty can be implemented so easily, how is it that throughout the Commonwealth Caribbean, so many countries (Trinidad and Tobago, Barbados, and other Eastern Caribbean states) have not executed persons in recent years? Is it that politicians throughout the Caribbean are all "cowards"? Why is it, then, that the Barbados government and opposition came together to amend their constitution to do away with the five-year rule laid down by the Privy Council?
The Opposition will recall that, the PNP manifesto before the last general election, spoke to taking the route that Barbados has taken. The Opposition declared that they would not give their support, thus stymying a proposal which could only be implemented with their cooperation in Parliament.
Mr. Smith and the Opposition, if they would refrain from making vain promises to the people of Jamaica, will find that the real reason lies in the decisions of the Privy Council and in the consequences of those decisions for the Caribbean justice system. There is no magic wand solution to the serious problem of murder in our society, a point that I would recommend to the JLP. I would also suggest that they refrain from seeking to bring partisan politics to bear on the serious question of murder and the death penalty. We should refrain from playing death-penalty politics.
A.J. Nicholson, Q.C., is Attorney-General and Minister of Justice.
