Witter

A day after Government backbencher Gregory Mair passionately warned that the retention of whipping and flogging on the law books would do violence to the proposed Charter of Fundamental Rights and Freedoms, Public Defender Earl Witter asserted that he was in agreement with a Court of Appeal ruling in the 1990s that regarded such punishment as degrading and inhumane.

"My view accords with that of the Court of Appeal. I do not consider that Section 13 of the draft Charter would nullify the ruling of the court," Witter told The Gleaner yesterday.

"I would therefore consider, in principle, that such a punishment constitutes inhumane and degrading treatment," he added.

Mair asserted on Tuesday that Parliament must wipe out laws permitting flogging and whipping.

Backward laws

The North East St Catherine MP declared that not only were the laws backward but represent a stain on the people, given their history.

Mair, who was one of two members who made contributions to the ongoing parliamentary debate on the Charter of Fundamental Rights and Freedoms, argued that the laws, which permit whipping and flogging, run afoul of the proposed legislation being debated in the House of Representatives.

"Section 13 (3) and 13 (6) of the Charter of Rights Bill clearly protects us from torture or inhumane or degrading punishment or other treatment," Mair contended.

"Nevertheless, flogging and whipping are still permitted under certain laws, because they are protected by saving Clause 13 section seven," he lamented.

But notwithstanding the provisions of the clause, which ensured a retention of the beating laws, Witter said this would not affect the ruling of the Court of Appal that flogging is unconstitutional and degrading punishment.

Declaring that the point was exhaustively argued, before a unanimous ruling was handed down, Witter suggested that "law" under the present arrangement includes common law.

Mair

Mair referred to a committee led by the late attorney Ian Ramsay which looked into the matter of flogging back in 1976.

The parliamentarian noted that the committee recommended in no uncertain terms "unanimously that all laws that permit or relate to flogging or whipping of any kind of any person in this country, a as part of the judicial process, be immediately repealed or abolished".

He complained that flogging laws remained on the books although Jamaica had denounced the Opticol Protocol, which renders pronouncements of the Human Rights Committee under the International Covenant on Civil and political Rights binding on the state.

"Whereas I reluctantly accept that a savings clause may be necessary so as to, from a legal perspective, ensure that all laws of the past cannot be seen as in contravention of the Constitution at any time, I do believe that we should then walk the talk and not only talk the talk," he declared.