Tue | Aug 22, 2017

Editorial: Get a clear focus, Mr Montague

Published:Tuesday | May 3, 2016 | 5:00 AM

We understand Robert Montague's wish to be seen, or appearing to be doing something dramatic, in tackling the serious problem of crime, especially murder. A recent spate of homicides was, in the circumstance, more than enough to excite the new national security minister to the bellows. And calling for the resumption of hanging is tried and tested to incite popular emotions.

So, Mr Montague has loudly announced that he has mandated his deputy, Pearnel Charles Jr, to determine, after consulting a raft of agencies, the legal impediments to a return to capital punishment, which Jamaica has not employed for more than a generation - 28 years.

"Persons who intend to break the law must know that the punishment will be sure, swift and just," said Mr Montague.

Like Mark Golding, the Opposition's spokesman on justice and governance, this newspaper does not believe that there is uncertainty about the law regarding capital punishment that requires clarification for

Mr Charles, or anyone else. The law, as has been interpreted by the courts, is not only clear, but has been well ventilated.

EFFECTIVE DETERRENT?

We agree that the punishment for crime, of all types, must be "sure, swift and just". However, it is a paucity of logic to conflate this with hanging or an assumption that having the legal right to do so is of itself completing the processes towards its return. Moreover, there remains the question, which is not seriously addressed by Mr Montague, of whether capital punishment is an effective deterrent to murder.

It is a fact that the Jamaican legislature has twice voted to maintain capital punishment. But its application is no willy-nilly process. Indeed, in the Lambert Watson case, the Privy Council ruled that the mandatory death penalty, which was applied in certain kinds of homicides, was unconstitutional. It was up to the judge, in keeping with a separation of powers, to determine whether the death penalty or a prison term was applied.

In cases from St Vincent and Belize, the Privy Council expanded on its Lambert Watson ruling, holding that the death penalty should be reserved for persons who have committed the most heinous of murders and having no prospect of rehabilitation. The prosecution has to give notice of its intention to seek the death penalty upon conviction. That principle was, in essence, what was reiterated in the Peter Dougal case in Jamaica five years ago.

Jamaica might override these rulings by amending its Constitution, as it did in 2011 in the bid to circumvent the five-year timeline of the Pratt and Morgan judgment, within which executions should take place before becoming cruel, inhuman and degrading. But that is likely to be a difficult process that would yield little but the satisfaction of appearing to be tough on crime.

Sure and swift justice is the best deterrence to crime, but that demands, first, apprehending those who break the law. In Jamaica, criminals murder with impunity, for they are assured, based on police statistics, a near 60 per cent chance of getting away with it. And when the police say they clear up cases, it doesn't necessarily mean someone is caught, charged and taken through the court system.

Mr Montague would do better concentrating on improving the effectiveness of the constabulary, enhancing the efficiency of the notoriously slow justice system, and focusing on arrangements to improve public order.