Dilemma over death penalty and a court
by Rickey Singh
THE recent controversial ruling by the Privy Council in the case of 'Neville Lewis and Others' could not have come at a worse time both for advocates of the death penalty and supporters of the proposed Caribbean Court of Justice (CCJ). And Attorneys General of the Caribbean Community (CARICOM) who are expected to meet for a special caucus this week in Jamaica at the request of Prime Minister Percival Patterson's government, will have to grapple with some sensitive questions. Why, for instance, should governments become so directly involved in a court's decision, in this case the Privy Council, when their intention, good as it may be, could easily be misinterpreted in relation to the functioning of the CCJ? For the very vocal "hang-them-quickly" lobby, which undoubtedly has wide support across the Caribbean Community, and which seems to think that judicial executions could check the spiralling murder rate, there is deep vexation with the latest majority decision handed down by the Privy Council against the death penalty for Lewis and five other Jamaicans convicted of murder. Advocates of a regional appellate court to replace the Judicial Committee of the Privy Council are, on the other hand, faced with a serious dilemma. It is the dilemma of making a clear distinction between the need for the Caribbean to move on with arrangements for the CCJ and, at the same time, warding off criticisms of rushing to establish a court to expedite implementation of the death penalty -- an act provided for in the constitutions of all the countries of the English-speaking Caribbean. The truth is -- irrespective of which side one may be on the death penalty issue -- the proposed CCJ cannot honestly be regarded as a "hangman's court", an institution that, unlike the Privy Council, will see its role as expediting capital punishment. Prime Minister Patterson, showing openly his anger with the Privy Council's ruling in the 'Lewis and others' case, thundered before delegates of his ruling People's National Party (PNP) last week that the British law lords had violated the basic rules of judicial justice. And, for Patterson, in so doing the Privy Council has now made out a "compelling case" why there must be a Caribbean appellate court, and why his own government must remain firmly committed to the establishment of the CCJ.
In giving his own interpretation to the Privy Council's ruling, one which has clearly angered governments of CARICOM -- particularly in Trinidad and Tobago, Jamaica, Guyana and Barbados -- the Solicitor General of Jamaica, Kenneth Rattray, has noted that it effectively abolishes the death penalty. At the core of the British law lords majority ruling, is that the Mercy Committee of Jamaica, the body that ultimately decides who should be executed for murder or be granted mercy, must now await the outcome of appeals to international bodies, like the Inter-American Commission on Human Rights (IACHR). Such appeals could take some three and possibly five years. Worse, as the Jamaican authorities view the ruling, since the country's Governor General is now obliged to hear representation from lawyers of a convicted murderer who has appealed his/her death sentence when considering the prerogative of mercy, this could result in endless litigation by death row prisoners. Of course, what applies to Jamaica by the Privy Council's ruling automatically has implications for the rest of CARICOM, other than Guyana which long ago abolished the Privy Council as its court of last resort. Human rights organisations and lawyers known to be opposed to the death penalty warmly welcomed the ruling of the Privy Council in a joint statement issued at the conclusion of a Human Rights Training Seminar in Belize on September 14. The statement, whose signatories included representatives of Caribbean Rights, and Penal Reform International, as well as anti-death penalty lawyers, noted that although the ruling directly concerns six Jamaican appellants, "it will have an impact on death row prisoners in other Caribbean countries that "will now be entitled to the observance of similarly fair procedures".
Caribbean Court The CCJ is an idea that has been around for at least two decades, and possibly 25 years, and it is, therefore, wrong to associate it as an institution to replace the Privy Council simply to expedite hanging of death row prisoners. Advocates of the CCJ -- some of whom will be meeting in Jamaica later this week -- are clearly opposed to a philosophy that keeps independent Caribbean states in the 21st century, still tied to the apron-strings of the Privy Council. Those who are convinced that the region possesses people of sufficient competence and integrity to be judges of the CCJ -- in addition to the reservoir of resources that could be drawn upon in the wider family of Commonwealth states -- are also disturbed that the CCJ should be confused with efforts to implement the death penalty and, consequently, project it as a "hangman's court" in the making. They have also been pointing to an apparent contradiction in the role and influence of international human rights bodies like the IACHR as it relates to implementation of the death penalty. For instance, the inability of the IACHR which has no judicial authority on the death penalty, to influence the USA, where it is located, against judicial executions, a country where executions routinely take place, irrespective of pleas, from the Pope or else. But the influence of the IACHR's lobby on the Privy Council is now a nightmare for Caribbean jurisdictions whose governments seem to think that popping the necks of convicted murderers is an effective way to curb the murder rate. This remains an unproven contention in the Caribbean. For the governments committed to the creation of the CCJ and severing links with the Privy Council, there is also the problem of how to proceed with the establishment of the Caribbean Single Market and Economy (CSME) without any legal mechanism to deal with commercial disputes under the CARICOM Treaty. The CCJ has been proposed to have original jurisdiction in determining cases pertaining to the Community Treaty. Even those countries that will not initially be involved in the CCJ but will be part of the SCME, have committed themselves in principle to the original jurisdiction to the CCJ. If, therefore, governments of the Community wish to proceed with arrangements for the SCME, they may have to consider establishing a special commercial court, or some appropriate mechanism, to address disputes under the CARICOM Treaty. For it now seems very unlikely that the CCJ will be a reality since constitutional changes that will be necessary to scuttle the Privy Council may not be forthcoming any time soon -- even with all the passionate outbursts against rulings by the Privy Council. Ironically, therefore, the dilemma continues both for the advocates of a regional appellate court and those out there, in and out of government across this region, who want to reduce the death row population in prisons by expediting implementation of the death penalty.
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