Peter Espeut, Contributor
THE RECENT decision of the Judicial Committee of the UK-based Privy Council has rankled the pro-hanging lobby, who have proceeded to attack the objectivity of the UK-based court. For example, in its last editorial, the Sunday Herald said "we must also point out that the law lords are also products of their culture. And since they are from a culture where the death penalty is no longer on the books, we must understand that their thinking will forever reflect the dominant view in Britain and other European countries, that hanging is inhumane and a barbaric form of punishment and classification does not matter". This sort of comment is not just grossly unfair to the law lords; it is also frightening in what it portends for the proposed Caribbean Court of Justice.
INCONSISTENT
The comment is unfair to the Law Lords because it suggests that they have brought "their culture" to play in their recent decision which happens to save 150 Caribbean citizens from the hangman. In fact what they did was to determine that the 1991 amendments by the Jamaican Parliament to the Offences against the Person Act were inconsistent with the Jamaican Constitution. Even after a person has been found guilty, the Jamaican Constitution gives them a right to a sentencing hearing where mitigating circumstances can be taken into account. Having mandatory sentences means that the judge has no discretion in the sentence, which is a breach of the Jamaican Constitution. What "culture" is in that? The law lords did not write the Jamaican Constitution. All they did was point out the inconsistency. Why vilify them for that? Would not a Caribbean Court of Justice have done the same?
This is what bothers me about the Sunday Herald's editorial. The implication is that with our Caribbean 'culture' being pro-hanging that our Caribbean Court would have decided that mandatory death sentences are not incompatible with the Jamaican Constitution. Now either it is incompatible or it is not, and culture has nothing to do with it. I find the Sunday Herald's editorial offensive and disturbing. The validity of the death penalty itself is not affected. If the sentencing hearing in Jamaica recommends the death penalty, then Jamaican Law says "Proceed!" The ruling is tantamount to a charge of sloppy lawmaking, and is a criticism of all those who voted "yes" to the amendments, those who proposed the legislation, those who researched them, those who gave legal opinions supporting them, and those who drafted the amendments. No British culture was brought into play.
THE LEGAL LUMINARIES
The Jamaican Constitution exempts all laws enacted before 1962 from being deemed unconstitutional, and so the original Offences against the Person Act which allowed mandatory death was allowed to stand. The legal luminaries available to the Government should know that. What other unconstitutional legislation has passed through Parliament?
For me, the way the government tried to distinguish between capital and non-capital murder was rank nepotism and cronyism. If a citizen murders a policeman: capital murder! If a policeman murders a citizen: non-capital! If a People's National Party (PNP) or Jamaica Labour Party (JLP) activist kills a citizen: non-capital. This law protected the PNP and JLP garrison gunmen from the gallows. Shameful! Do we need more evidence of support by politicians for their murderous henchmen? One effect of the Privy Council ruling is again permit police and political murderer to be hanged by the neck until dead. Look for it: the Government will soon find another way to exempt them.
Peter Espeut is a sociologist and is executive director of an environment and development NGO.
