Parliamentarians on Novem-ber 25 voted by a majority of 35 to 15 to retain the death penalty. This decision accords with the views of the overwhelming majority of Jamaicans. The question being asked by a number of Jamaicans, is now that the parliamentarians have voted to retain the death penalty, what's next?

If the long parliamentary debate and decision on this issue is not to be regarded as an exercise in futility, or a side-show, as some have described it, or as treading water (going nowhere) as one parliamentarian has described it, then the next step is to do everything possible to impose the death penalty, where it is so decided by the courts.

However, in order to be able to effect the death penalty, the Government has to address the Pratt and Morgan 'five-year' rule. In Pratt and Morgan v the Attorney General of Jamaica the Judicial Committee of the Privy Council in 1993 held that for capital murder, 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".

AMENDMENT BY BARBADOS

During the course of the debate in Parliament, Prime Minister Golding argued that the Govern-ment did not accept that it was impossible to complete all the necessary (legal) processes leading up to the imposing of the death penalty within five years. The prime minister stated: "Therefore, we (the Government) do not accept that the only way that capital punishment can be imposed is by going the Barbados route to avoid the Pratt and Morgan strictures".

Faced with the 'five-year' rule dilemma the Government of Barbados in 2001 amended its Con-stitution to address this issue. The amendment, which was passed in Barbados, stated, in essence, that the Judicial Committee of the Privy Council should not hold in contravention of the Barbados Constitution the imposition of a mandatory sentence of death imposed on a person in respect of a criminal offence under the law of Barbados of which he had been convicted.

The constitutional amendment was passed in Barbados by a two-thirds majority, that is to say, with the concurrence of the Opposition.

The decision of the Judicial Committee of the Privy Council was no doubt intended to encourage the speedy delivery of justice, an objective which any reasonable person or Government would support.

However, no matter how supportive persons are of 'speedy trials', in practice, the Pratt and Morgan decision has made it virtually impossible for the Jamaican state to carry out the death penalty.

The time period of five years as decided by the Judicial Committee of the Privy Council is too short to properly accommodate the various appellate and related procedures now available to persons facing the death penalty. Any lawyer worth his salt can use the appellate processes now available to the convicted murderers to delay the process for more than five years.

PROCEDURES TO FOLLOW

The Government of Barbados knew this and that is why it has amended the Constitution. The Government of Jamaica, as outlined in the sentiments expressed by Prime Minister Golding, seems ignorant of this reality.

To illustrate, if a person is convicted of murder, and sentenced to death in Jamaica, the following procedures must be respected as a matter of law:

1. The convict may appeal from the High Court to the Jamaican Court of Appeal on points of law concerning liability;

2. The convict may appeal from the Court of Appeal to the Judicial Committee of the Privy Council on points of law concerning liability;

3. If the convict does not prevail on points of law concerning liability, he may bring a constitutional motion to the High Court;

4. He may appeal from the decision of the High Court to the Court of Appeal on the constitutional issues he has raised;

5. He may appeal from the Court of Appeal to the Judicial Committee of the Privy Council on the constitutional issues he has raised;

6. If he does not prevail before the Judicial Committee of the Privy Council on constitutional issues, he may petition the Inter-American Commission on Human Rights about human-rights issues raised by his conviction or sentence; the Inter-American Commission may only make recommen-dations concerning the convict, but nonetheless, by virtue of the reasoning of the Judicial Committee of the Privy Council in Neville Lewis vs The Attorney General of Jamaica, the state must await this recommen-dation no matter how long it takes.

In the Neville Lewis case, the Judicial Committee of the Privy Council decided that the execution of a death sentence by a decision of the Jamaica Privy Council in relation to the exercise of the prerogative of mercy has to consider the report of any international human-rights body.

7. After the recommendation of the Inter-American Commission is considered, if the State still believes that the execution should be carried out, the convict then has the right, in accordance with Sections 90 and 91 of the Jamaican Constitution, to seek pardon from the local Privy Council, presided over by the governor general;

8. Following the decision of the local Privy Council, the convict may apply to the High Court for constitutional redress by claiming that some aspect of the procedure followed by the Privy Council was defective;

9. If the High Court does not provide a satisfactory answer concerning the point taken in respect of the local Privy Council, the convict may appeal to the Jamaican Court of Appeal;

10. If the Court of Appeal does not provide satisfaction to the convict, he may then appeal to the Judicial Committee of the Privy Council on the point in respect of the local Privy Council.

GOVERNMENT MUST EXPLAIN

Given this range of safeguards, it is highly unlikely that any death-penalty sentences will be carried out within the five years of sentence. That is why I have a difficulty understanding why Prime Minister Golding is of a different view. It is important that either he or his minister of justice, Dorothy Lightbourne, explain to the Jamaican people, including the 35 members of Parliament who voted for the retention of the death penalty how the Government plans to do so within the context of the 'five-year' rule.

An amendment to the Constitution, as is done in Barbados to address this 'five-year' rule, is not intended to deprive the convict of the 10 safeguards enumerated above. It will only prevent the State from undertaking the impossible task of carrying out the stages within five years.

Some of my learned colleagues may be mindful to disagree with my position that the Judicial Committee of the Privy Council in the Pratt and Morgan case did impose a 'five-year' rule. They may argue, perhaps quite persuasively, that the Judicial Committee of the Privy Council has noted in cases subsequent to Pratt and Morgan, that the five-year time period, as set out in that case, is only a guideline meant to ensure speedy justice.

However, they should be aware that in the later case of Neville Lewis vs The Attorney General of Jamaica the Judicial Committee of the Privy Council appears to have treated the 'five-year' guidelines as a rule of law, as in that case, the law lords found that almost five years had elapsed, and then proceeded to commute the death sentence without any further reasoning.

CONSCIENCE VOTE

During the national election campaign of 2007, the Jamaica Labour Party (JLP), which was then the Opposition, accused the People's National Party Government of lacking the will to carry out the law in respect of the death penalty. Others in the Opposition went even further, promising that if elected, a JLP government would impose the death penalty within 100 days.

It is now more than 14 months since a new government has been elected and the only thing it has done is to initiate another debate and conscience vote on the death penalty, thus regurgitating a similar exercise, which took place on January 30, 1979.

If the current government is really serious about the imposition of the death penalty, then the next step is to join hands with the Opposition and amend the Constitution in order to address the 'five-year' rule as directed by the Judicial Committee of the Privy Council, which has made the implementation of the death penalty almost impossible.

Delano Franklyn is an attorney-at-law.