Stephen VasciannieTHE DEBATE concerning the Braeton killings has, quite naturally, taken place in an atmosphere of intense emotionalism. The contrasting stories offered, on the one hand, by some members of the police hierarchy, and, on the other, by certain members of the Braeton community, stand as eloquent testimony to the need for a calm, independent, analytical assessment of what happened to the seven boys/men three Wednesdays ago.
The debate should also prompt us to consider, even in outline, the main rules that govern the protection of the right to life in Jamaica.
This may be useful not only because knowledge concerning our basic human rights is intrinsically valuable, but also because, in the wake of the Braeton killings, various arguments of curious validity have been advanced to justify extra-judicial killing (if, indeed, that is what occurred in Braeton).
Chapter III of the Jamaican Constitution sets out most, if not all, of our fundamental rights and freedoms. Within Chapter III, Section 14 of the Constitution addresses the right to life. The basic provision concerning the right to life, in Section 14(1) reads as follows: "No person shall intentionally be deprived of his life save in execution of the sentence of a court in respect of a criminal offence of which he has been convicted." Section 14(2) then specifies certain circumstances in which the taking of a life will not conflict with the right to life: thus, it stipulates that where a person dies as a result of the use of force "to such extent as is reasonably justifiable in the circumstances of the case" (a) for the defence of any person from violence or for the defence of property; (b) to effect lawful arrest or to prevent escape from lawful detention; (c) to suppress a riot, insurrection or mutiny; or (d) lawfully to prevent the commission of a crime by the person. The provision also provides an exception concerning persons who die as the result of a lawful act of war.
The basic constitutional safeguard for the right to life is further reinforced in law by the provisions of the Offences Against the Person Act, which set out, among other things, the circumstances in which a charge of capital murder (giving rise to the death sentence) may be brought against individuals, as against a charge of non-capital murder. In broad summary, capital murder includes the murder of a member of the security forces, a correctional officer, a judicial officer or any other person with constabulary functions, acting in the course of his or her duties.
Also, where murder is committed in the course or furtherance of a robbery, burglary or housebreaking, arson in relation to a dwelling house, or any sexual offence, capital murder charges shall be brought.
The murder of a Justice of the Peace acting in the execution of his or her judicial functions, 'murder for hire', and multiple murders may also give rise to conviction for capital murder. There may be arguments about the merits of this classification, but the main point is clear: in some circumstances, the Jamaican State retains the right to kill people who kill people. This reflects the State's view that the commission of certain acts of murder places the perpetrator beyond the limits of redemption, at least, beyond the point of forgiveness. It also reflects the majority perception (which may or may not be empirically verifiable) that the death penalty will serve to deter some persons from committing murder.
Now, within this broad context, the Braeton matter appears to have generated, or revived, certain unjustifiable grounds for denying Jamaicans of their fundamental right to life. These arguments are posited with varying degrees of sophistication, and, in some cases, appear to be sincerely held by their protagonists. To begin with, have we not heard that the Braeton boys/men deserved to die because they were responsible for the deaths of Constable Dwight Gibson, principal Keith Morris, and others? The suggestion is that the Braeton boys/men were murderers, and 'murderers fi dead'.
One problem with this approach is that it assumes, without proof, the guilt of the Braeton boys/men: how do we know that they are actually the ones responsible for committing the murders in question? In response to this, some suggest that eyewitnesses have identified some of the Braeton boys/men as the murderers of Principal Keith Morris, that some of the guns taken from the Braeton house were used to kill principal Morris, and one gun from the house belonged to Constable Gibson.
But, this response is also problematic. How do we know that the police are telling us the truth on these points? Have they been subject to cross-examination? And in a situation where some senior police officers are under the spotlight for killing without just cause, the sceptic can reasonably have some reservations about the police version concerning guns recovered, and identification. Besides, the sloppy police treatment of the evidence taken from the Braeton house must now make it difficult, if not impossible, to prove that the guns were actually at the house before the police got there.
When faced with problems of proof, some abandon that line, and resort to painting with the broad brush. They argue that even if the boys/men cannot be shown to be murderers in particular cases, 'dem mix up, mix up inna crime': the boys/men are thus classified as evil personified, and worthy of murder. Give a dog a bad name, and hang him, so to speak. This goes entirely against the grain of our Constitution, justice and fairplay, and seems to be based essentially on a presumption of guilt. Dangerous nonsense that would ultimately give the police carte blanche to wipe out persons without lawful justification. To be clear, until we abandon criminal trials, the police are obliged to respect the due process of law, and their actions to the contrary cannot be rationalised on the grounds that persons suspected of murder must be guilty, if not of murder, then some other heinous crime.
Finally, some supporters of the Braeton killings point out that seven boys/men in one house at 4 a.m. could not have been up to any good, and that persons in the Braeton community know that these youths were terrorists. Society, it is argued, therefore has the right to send a message by taking their lives. This is really a variant of giving the dog a bad name, and hanging it and it can therefore be met with the counter-argument that due process of law must be respected to ensure fairness and justice.
But, in addition, we should note that the punishment for seven boys/men gathered together in a house at 4 a.m. cannot be the death sentence, in any civilised society.
Our society cannot pick on young men, and decide, willy-nilly, that they must be martyrs to the cause of sending a message to all Jamaican gunmen.
We are still a nation of laws, and we must be vigilant in ensuring that our laws are applied in a just manner, even to those perceived to be the least of our apostles.
Stephen Vasciannie, an attorney-at-law, teaches at the University of the West Indies.
