Delroy Chuck, Contributor
THE TREND across the world is towards the elimination of the death penalty as judicial punishment. Just over 150 years ago, the sentence of death was available, nay mandatory, for 144 crimes including many petty offences. Since then, for most countries, murder is the only offence for which the sentence of death is imposed. In truth, it is common knowledge that punishment has very little effect on the state of crime and does nothing more than to give a convicted person his just desert.
The recent rulings of the Judicial Committee of the Privy Council on the mandatory death penalty continue the current trend towards limiting the application of the sentence of death. Already, in the Eastern Caribbean and Belize, the JCPC had ruled the mandatory death penalty unconstitutional. Similar rulings were expected in the trio of cases from Jamaica, Barbados and Trinidad, but whereas the JCPC ruled unanimously that in Jamaica it was unconstitutional, by a majority of five to four judges, it held that in Barbados and Trinidad, their constitutions preserved the death penalty.
MORE CONVINCING
In the Barbados and Trinidad cases, I found the reasoning of the minority much more convincing than that of the majority. In particular, the minority relied on a powerful judgement of Dickson J. in the Supreme Court of Canada, which is worth repeating for those who see no difference between ordinary statute law and the fundamental constitutional law, and has some bearing on the present process of removing the JCPC and introducing the CCJ.
In Hunter v Southam Inc. Dickson J. said: "The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. It function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind."
DEGRADING PUNISHMENT
Interestingly, the JCPC agreed with International Treaties on Human Rights, to which Caribbean territories are parties, that the death penalty amounted to cruel, inhuman and degrading punishment and prohibited by the human rights clauses of the constitutions but, the majority held, preserved by the saving law clauses in Barbados and Trinidad. In Jamaica, the JCPC found that the attempt by the legislature to define killings into capital and non-capital murders was unconstitutional and a matter for the judiciary. From now, the task of imposing the death penalty will be a judicial function, rather than legislatively determined. The JCPC held: "To condemn a man to die without giving him the opportunity to persuade the court that this would in his case be disproportionate and inappropriate is to treat him in a way that no human being should be treated. There are no limits to the variety of circumstances which may lead a man to commit homicide. The crime of which he has been convicted may turn out to have been far more serious than he foresaw or contemplated."
No doubt, the case will open up, again, the debate on the appropriateness and timely implementation of the death penalty. However, it seems, as I said on a radio programme in 1991, that it is unlikely that anyone will be hanged in Jamaica for a long time.
CRIMINAL CONDUCT
What the Government must not do is to blame the JCPC, the Opposition or constitutional lawyers for its ineptness and failure to carry out the sentence of the court - the death penalty is still the law and until it is removed the Government has an obligation to enforce it. While I accept that the sentence of death is the most emphatic denunciation of criminal conduct, I have always doubted its deterrent effect and appropriateness as a form of punishment in a civilised society. The death penalty is final and irreversible and, in light of man's well-known propensity for errors and corruption, we should be extremely reluctant to impose it lest we do grave injustice to an innocent man. Moreover, I find it reprehensible and unjustifiable for a civilised community to carry out the death penalty, which is now universally accepted as cruel and inhumane. Actually, the worst part of the death penalty is not its actual execution, which probably lasts a few seconds, but the inappropriateness of a civilised community to prepare, premeditate and actually take life. To me, the taking of life, whether by the criminal or the state, should be universally condemned.
Jamaica's attempt to limit the death penalty to the most reprehensible cases has failed. Shortly, we will have to define the judicial process whereby the sentence of death can be imposed. With Jamaica enduring the third highest murder rate in the world, the call for the resumption of hanging will find favour in the corridors of power but, I caution, it is in these moments of crisis that we must tread carefully and listen to the voices of reason and justice.
Delroy Chuck is an attorney at law and Opposition Member of Parliament. He can be contacted by email at Delchuck@Hotmail.com.
