Stephen VasciannieTHE JUDGMENT of the Judicial Committee of the Privy Council in the case of Neville Lewis and others continues to be a source of considerable controversy. Some critics -- including, one suspects, several persons who have not read the judgment maintain that the decision proves, quite conclusively, that the Privy Council is opposed to the death penalty, and that, if we wish to have the death penalty carried out in the Caribbean, we will have to rely upon the proposed Caribbean Court of Justice.
The two components of this line of argumentation, namely, (a) that the Privy Council is opposed to the death penalty, and (b) that the Caribbean Court will not be opposed to the death penalty, have been given at least implicit support by the Jamaican political directorate, and appear to have broad national appeal. Today, I wish to examine the foundations of the argument that the Privy Council is opposed in principle to the death penalty, with reference to the pertinent decisions of the Privy Council itself.
Is the Privy Council opposed to the death penalty? The broad view of some Privy Council critics is that individual judges of that court have commuted the death sentence faced by Neville Lewis and others on personal grounds. Some of these critics seem to be saying that the reasoning of the Privy Council in the case is really a smokescreen: the Privy Council does not support hanging, and so, they will "manufacture" reasons to overturn death sentences imposed in the Caribbean.
To support this perspective, the critics place some reliance on the tone and content of Lord Hoffman's stinging dissent in the case of Neville Lewis et al. More specifically, in the introductory paragraph of his dissent, Lord Hoffman wrote as follows: "The Board sits as a supreme court of appeal to enforce (Caribbean) laws and constitutions. It is of course obvious to the members of the Board that they must discharge that duty without regard to whether they personally favour the death penalty or not. But the wider public may need to be reminded".
One important question which arises from the foregoing comment is why did Lord Hoffman feel obliged to make it. At no point in the majority judgment is there a reference to personal views on the death penalty, and, indeed, even Hoffman himself avoids giving any personal views on the subject. So why does Hoffman believe that the "wider public" needs to be reminded that the Privy Council is applying Jamaican law (which allows the death penalty), and not the personal opinion of the judges? Two possible answers come to mind. The first is that Hoffman himself believes the Privy Council has, in fact, been influenced by personal revulsion to the death penalty: he is therefore sending a subtle message to the "wider public" to the effect that the Privy Council may actually be against the death penalty in principle. This interpretation could be supported by Hoffman's sarcastic remark concerning the "due process of law". This remark concerns whether an appellant may be hanged even though he has an outstanding petition before the Inter-American Commission on Human Rights. Here, the Privy Council majority found that due process of law requires that the Jamaican authorities await the Inter-American Commission's review of the petition. But, for Hoffman, the concept of due process in this context is "a philosopher's stone, undetected by generations of judges, which can convert the base metal of executive action into the gold of legislative power. (The majority) does not however explain how the trick is done". In short, Hoffman could be suggesting that his Privy Council colleagues are creating new law as a means of preventing the application of the death penalty in particular cases. The second interpretation of Hoffman is less severe on his colleagues. It is this. Hoffman is not convinced that the majority has reached the right decision in the case, and, quite correctly, puts forward reasons for his dissent (including the remark about the philosopher's stone).
At the same time, Hoffman recognises that, as a matter of fact, there are persons in the Caribbean who will believe that the majority judgment is influenced by personal views, and so, to emphasise that this public perception is incorrect, he goes out of his way to point out that "it is of course obvious" to the Privy Council members that they must not be influenced by personal views on the death penalty.On the second interpretation, Hoffman is not accusing his colleagues of judicial bias; rather, he is suggesting that, although others may raise the question of bias, this is clearly not the case.
To support this reading, one could point out the obvious: if Hoffman wished to accuse the majority of being influenced by personal revulsion to the death penalty, he could most certainly have spoken in more direct terms.
So Hoffman's dissent is not decisive one way or another. But what about the argument based on time? In essence, this is an argument to the effect that, although the Privy Council has not expressly abolished the death penalty, it has implicitly achieved this result through the use of the five-year rule first enunciated in the Pratt and Morgan decision.
Remember that in the Pratt and Morgan judgment, the Privy Council said that where the period between the imposition of the sentence of death and the actual execution of that sentence exceeds five years, the death sentence should be commuted to life imprisonment. This is based on the notion that an execution after five years would be "inhuman" punishment, contrary to Section 17(1) of the Jamaican Constitution.
Insufficiently
sensitive
In practice, however, the Jamaican authorities have maintained that the five-year period is unrealistic: in this period, the accused may appeal up to the Judicial Committee, may petition the Inter-American Commission, may bring constitutional motions which may themselves reach the Judicial Committee, and may also petition the local Privy Council for mercy. Arising from the judgment in the case of Neville Lewis and others, it is now likely, too, that decisions of the local Privy Council will be open to an additional round of appeals in some cases.
The judgment in the case of Neville Lewis and others is open to the criticism that it is insufficiently sensitive to the fact that five years may not be enough for all these processes to be completed. But this does not mean that the Privy Council is opposed in principle to the death penalty. Rather, it suggests that the Jamaican authorities should fashion means of meeting the five-year rule, including shortening the time period between sentencing and appeals up to the Judicial Committee.
On another point, we should have little time for the view that the Privy Council is opposed to the death penalty because the British Government has abolished this sentence from the Laws of the United Kingdom. On this point, it is enough to follow Hoffman: when the Privy Council sits with respect to a Jamaican death penalty case, it is applying the Laws of Jamaica, a point which "is of course obvious" to judges of the Privy Council. And, finally, in assessing the Privy Council's perspective, it should be recalled that over the course of a remarkable weekend in June 1999, the authorities in Trinidad and Tobago executed Dole Chadee and eight other men -- in a round of hanging that was not blocked in any way by the Privy Council.
At very least, this suggests that even if members of the Privy Council are opposed to the death penalty, where the proper procedures to ensure fairness and justice are followed, the Privy Council cannot prevent the imposition of the law. So, is the Privy Council against the death penalty? Lord Hoffman has spoken ambiguously; but we don't have to wonder about Dole Chadee's views on the point.
Stephen Vasciannie an attorney-at-law, teaches at the University of the West Indies, Mona.
