THE FUNDAMENTAL point in Mr. Justice Henderson Downer's recent judgment criticising the United Kingdom Privy Council's ruling in the Neville Lewis case is that the courts have no jurisdiction over the warrants of execution issued under the Governor-General's hand with the Broad Seal affixed to it. If this is so, then when the Governor-General issues his warrant in future cases the law must take its course.
Mr. Justice Downer's judgment clarifies where the responsibility for the resumption of hanging lies and neither the United Kingdom Privy Council, the courts or any external body such as the United Nations Human Rights Commission, can interfere with Her Majesty's prerogative of mercy.
The Governor-General is the person who can stay his own warrant and that was emphasised in the celebrated case of Pratt and Morgan.
This is the way it was before Independence. The Jamaican Constitution provides a prohibition clause which excludes judicial review of the prerogative of mercy. Mr. Justice Downer in his judgment wondered why the Government lawyers had not cited the prohibition clause as their main point to dismiss the cases brought by the condemned men before the Judicial Committee.
In a letter to the Editor, published elsewhere in today's issue, the Deputy Solicitor- General, who was on the Government's team of lawyers, states that they did in fact bring the relevant clauses of the Jamaican Constitution to the attention of the Privy Council. This raises the question of why the cases went back to the United Kingdom Privy Council which had before upheld the murder convictions and sentences.
It is now incumbent on the Attorney-General as the principal legal adviser to the Government to state publicly whether Mr. Justice Downer's judgment bears the correct interpretation of the Constitution so that the law will take its course in future cases.
The opinions on this page, except for the above, do not necessarily reflect the views of The Gleaner.
