A.J. Nicholson, Contributor
SMITH
THIS WEEK, at Halse Hall, Clarendon, I invited an audience of Justices of the Peace for the most part, to urge the Opposition to join with the Government in following the path taken by our CARICOM partner, Barbados, to amend our constitution so that we may avoid the strictures imposed by the Judicial Committee of the Privy Council in the implementation of the death penalty. Derrick Smith, in response, has repeated the mantra of the Opposition that it is the failure of the Ministry of Justice to have proper procedures put in place which has resulted in no executions having been carried out during these past many years.
The real question is: Are Mr. Smith and the Opposition on firm ground? I did not seek to place any blame for the lack of executions at the feet of the Opposition; that was a spin put on my remarks by the journalists who reported them. In any event, we are obliged to address the real question and explain to the
public exactly where we are concerning the carrying out of the death penalty in Jamaica.
We begin in the year 1983. In that year, in an appeal brought by a condemned man called Riley, the Judicial Committee of the Privy Council ruled that delay, for however long and for whatever reason, could not constitute cruel and inhuman punishment in contravention of the constitution of Jamaica. That was the jurisprudence that had been clearly established by case law in all countries of the Commonwealth whose
Constitutions contained similar provisions.
JURISPRUDENCE
Ten years later, in 1993, the Judicial Committee overturned all of that jurisprudence, and ruled that since it was part of the human condition that every condemned man would take every opportunity to save his life through the use of procedures made available by the state, and that, in the case of delay, the fault was not to be attributed to the prisoner but to the appellate system that permits such delay. In other words, the blame for delay was to be placed squarely at the feet of the state and it was not to be seen as the result of the condemned man attempting to extricate himself from the hangman's noose.
Five years delay, according to the Judicial Committee, was enough to save the man from being hanged. We note that this ruling had implications for all CARICOM Member States whose final court of appeal was the Privy Council in London. We note that no other final court anywhere has ever made any such ruling. The position in other jurisdictions across the world that still have the death penalty as a legal form of punishment is that stated in Riley.
In Jamaica, a person who has been condemned to death after a trial in the Circuit Court is entitled to make use of all of the following 10 procedures in an attempt to extricate himself from the punishment being carried out.
First, he may appeal to the Court of Appeal in Jamaica against his conviction and sentence. Second, he may appeal to the Judicial Committee if he is not successful in the Court of Appeal. Third, if he is still not successful, he may bring an action in the Supreme Court claiming that, for the state to carry out that punishment, such an activity would amount to breach of his constitutional rights.
Fourth, he may appeal to the Court of Appeal if he is not successful. Fifth, if he has no joy before the Court of Appeal, he may once again appeal to the Judicial Committee. Sixth, he may petition the Inter-American Commission on Human Rights, an international body to which Jamaica, by convention, subscribes. No time limit has been set for that commission to meet and advise the Jamaican Govern-ment of its findings arising out of the petition. One immediately sees the implications of such a factor within the framework of the time limit of five years set by the Judicial Committee.
PREROGATIVE OF MERCY
Seventh, the condemned man may petition His Excellency the Governor-General as Head of State representing Her Majesty the Queen for His Excellency to exercise the prerogative of mercy in his favour. Up to four years ago, that was the end of the processes open to the condemned man. The Judicial Committee, however, when they came to deliberate upon the appeal brought by the condemned man who had murdered Vic Higgs (after all of the processes had been exhausted, up to the
seventh), extended the avenues open to a condemned man by three further processes.
Eighth, the Privy Council ruled that, if the condemned man was not satisfied with the procedure employed by the Governor-General and his council in not exercising the prerogative of mercy in his favour, he is entitled to bring a motion in the Supreme Court complaining about such procedure.
Ninth, if the condemned is not successful in that complaint before the Supreme Court, he may appeal to the Court of Appeal. Tenth, if he is not successful, he is further entitled to appeal to the Judicial Committee of the Privy Council.
So, Mr. Smith and the Opposition maintain that it is a lack of competence on the part of the Ministry of Justice in Jamaica why all those procedures outlined above cannot be met within a five-year period. They say that the transcripts are not being supplied to the
appellate courts on a timely basis. They say so, even in
circumstances in which the Jamaican authorities, in recognition of the need to expedite
internal procedures, have reduced the period between the trial in the Circuit Court and a disposal by the Court of Appeal to a period of six months, having placed murder appeals on a fast track basis for the provision of transcripts.
They say so, even in the face of all procedures up to the seventh stage outlined above having been completed in the Vic Higgs murder case and even when the matter finally came before the Judicial Committee, only four years and eight months had elapsed.
They say so even in circumstances in which Barbados, a sister CARICOM Member State with only a few murder cases, found that the strictures imposed by the Judicial Committee could not be met and found it necessary to amend her constitution to dispose of those strictures. Are Mr. Smith and the Opposition in Jamaica also saying that this was as a result of incompetence on the part of the Ministry of Justice in Barbados?
What then did Barbados do? The Government and Opposition in that country did not seek to bicker about incompetence on the part of the authorities. They did not seek to suggest that the five- year time limit was adequate for all the processes to be exhausted. The Government and the Opposition in Barbados agreed that their country was not willing to abide by the strictures laid down by the Judicial Committee for the carrying out of the death penalty and came together to amend their constitution accordingly.
They amended their constitution to state that any delay in executing a sentence of death imposed on a person in respect of a criminal offence under the law of Barbados of which he has been convicted is not to be held to be inconsistent with or in contravention of their constitution. In other words, Barbados has placed itself back into the position enunciated in Riley.
The Judicial Committee had signalled, in the appeal of the Vic Higgs murder, that the conditions under which a condemned man is held in prison could constitute another ground on which he could complain that his constitutional rights were being infringed. This would provide three further avenues available to a condemned man, were such a ruling to be made. The Government and Opposition in Barbados, in their constitutional amendment pre-empted any such ruling, by providing that such a situation was not to be held to be inconsistent with the provisions of their constitution.
The Government and Opposition in Barbados further amended their constitution to empower the Governor General to direct that time limits be set within which international human rights bodies are to send their findings to the authorities in Barbados concerning petitions made to such bodies by condemned men. We recall that, at the seventh stage above, there is no time limit set for these human rights institutions to meet and advise the authorities of their findings. The setting of time limits, therefore, is a most powerful tool in enabling the authorities in bringing themselves within a reasonable time between conviction and the execution of the death penalty and the Barbados constitution now provides that if those bodies do not reply within the time stipulated, that is not a bar to execution.
So then, our sister CARICOM state did not proceed to engage in protracted debates and drawn out discussions concerning whose fault it might be why the processes could not be exhausted within five years. They knew that with the ingenuity of competent legal representatives and the absence of any time limits within which human rights bodies are to make and report their findings, among other things, combined to constitute a real fetter on the ability of the authorities to carry out the death penalty within the strictures set by the Privy Council.
They simply went ahead and did what they had to do as they saw fit in the preservation of law and order in their country and even though they respect all rulings made by the Judicial Committee because it is our highest court (no longer so in the case of Barbados), they were not prepared to abide by strictures which they well knew were avenues open to condemned persons to extricate themselves from the lawful exercise of the death penalty. The Government could not have done so in the absence of co-operation by the Opposition for, to amend their constitution in the way that they have done, a specific majority vote was required in each House of Parliament.
That is what we are asking the citizens of Jamaica to impress upon the Parliamentary Opposition. By no means are we placing any blame at the doorstep of the Opposition. What we say is that we ought to agree to the approach taken by our sister CARICOM territory, Barbados, particularly in circumstances where the number of cases that come before our courts are exponentially greater than the number that fall to be determined in that country.
So, we say to Mr. Smith and the Opposition, let's get real.
A. J. Nicholson, QC is Attorney-General and Minister of Justice
