THE EDITOR, Sir:(1) PART OF a United Nations Report is reproduced in The Gleaner of Saturday, October 18, 2003, as follows:
"A high crime rate does not represent an excuse for excessive use of force on the part of state authorities," the report stated. "Authorities at all levels of the Government should clearly make stronger efforts to condemn all forms of misuse of force by security forces and no effort should be made to protect those accused of extra-judicial executions."
(2) It is quite understandable for very well paid members of the United Nations and its agencies (fat cat salaries come mainly from several Governments, taxpayers and foundations etc.) to step into a member country for a few days, (in this case only ten days in Jamaica), and justify the expenses by writing misleading (sometimes mischievous) reports concerning the activities in that country. This some might think, is what Ms. Asma Jahongir, (United Nations Special Rapporteur on extra-judicial, summary or arbitrary executions), has done in her Report on police killings in Jamaica.
(3) Extra-judicial killing means no more than a killing which is not in execution of a sentence of a Court of law (whether civil or military). But not all extra-judicial killings which are not in execution of a sentence of a Court of law are unconstitutional.
If a man points a revolver at me, pulls the trigger, and I push him and he falls on a rock, breaks his neck, and dies; that is extra-judicial killing, and is self-defence.
If this happened to a policeman in this form, and he draws his pistol and shoots the man dead in these circumstances, that is extra-judicial killing, and is excusable under The Offences Against The Person Act.
This is also justifiable under Section 14 (2) of The Constitution. And the public should know that these provisions of law were also confirmed by the combined effect of Articles 3 and 30 of The Universal Declaration of Human Rights and Freedom by The United Nations in 1948, which employs Ms. Asma Jahongir. The latter ought to have known this before putting pen to paper.
(4) Sections 14(1) and 14(2) of The Jamaica Constitution read as follows:
"14(1) 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."
DEPRIVED OF HIS LIFE
"14(2) Without prejudice to any liability for a contravention of any other law with respect to the use of force in such cases as are hereinafter mentioned, a person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the 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) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) for the purpose of suppressing a riot, insurrection or mutiny; or
(d) in order lawfully to prevent the commission by that person of a criminal offence, or if he dies as the result of a lawful act of war.
(5) These provisions apply to any person and so apply equally to criminals as well as policemen. Therefore, a policeman is not expected to shoot at a criminal and kill him, if that criminal has not put him in imminent danger of death, nor is a criminal expected to stand by whilst a policeman shoots at him, and he - the criminal is in imminent danger of death. Both are entitled to shoot back in defence.
The fact that the criminal may have used an unlicensed firearm does not take away his right of self defence. It only makes him liable to be charged with illegal possession of a firearm, but not for murder. In both cases as The Privy Council pointed out in the Jamaican Privy Council Appeal of Walker vs. The Queen (1974) an individual in such a situation of imminent danger of death or injury cannot be expected to weigh to a nicety, the measure of his reaction. As the saying goes, what is good for the goose is good for the gander.
(6) Jamaica has a democracy and a democratic constitution which respects the rights of its citizens who include criminals and policemen and other persons within its society. There is nothing in section 14 of The Constitution which makes different provisions for policemen or for criminals.
I am, etc.,
BERTHAN MACAULAY, Q.C.
Signed for Berthan Macaulay by His Authority Rudolph Francis, Attorney-at-Law
