The following is an edited excerpt of the Cobb Family Lecture given recently by Professor Vasciannie on the subject of 'The Human Rights Project in Jamaica'. The lecture was given at the University of the West Indies, Mona.
Of all the human rights questions facing Jamaica, the death penalty raises the most difficult and controversial issues in practice. The response of the international community to Jamaica, and more generally the Commonwealth Caribbean, on this issue has placed us in an invidious position.
At times, the death penalty question dominates news about human rights developments in Jamaica, and the impression is engendered that some Jamaican authorities arbitrarily wish to carry out death sentences, influenced by fright, fear and social prejudice. This caricature does not do justice to the complex issues that have attended the death penalty debate both here and elsewhere in the Caribbean.
Professor Stephen Vasciannie speaks on human rights in Jamaica at the, American Friends of Jamaica/Cobb Lecture Series at the Undercroft of the University of the West Indies, Mona, on January 24.
Both local and international opponents of the death penalty sometimes argue that the retention of the death penalty in Jamaica is inconsistent with International Law. Various European governments take this position, as do non-governmental organisations, such as Amnesty International and the much-respected Independent Jamaica Council for Human Rights.
To support their position, these entities note various developments, including the fact that the United Nations Human Rights Committee in its First General Comment on Article 6 of the International Covenant on Civil and Political Rights maintained that some aspects of Article 6 "strongly suggest that abolition is desirable".
By the same token, critics of the Jamaican position on the death penalty point out that the former United Nations Commission on Human Rights had repeatedly passed resolutions calling on states to abolish the death sentence, and emphasise that an increasing number of countries have, in fact, prohibited the sentence in practice.
The decision not to incorporate the death penalty among the possible sentences available to the International Criminal Court and other international criminal tribunals has also been mentioned as evidence as to the appropriate way to handle this issue in human rights law.
Jamaica has therefore increasingly been called upon to defend its position in favour of the death penalty. In October 2007, the Government of Jamaica set out some of its arguments in a vote at the United Nations on the subject. For Jamaica, the death penalty is not prohibited in International Law. The governing rule of International Law is set out in Article 6 of the International Covenant on Civil and Political Rights (the ICCPR). This provision indicates that everyone has the right to life, and no one may arbitrarily be deprived of this right: given that the death penalty is judicially sanctioned in each case, it cannot reasonably be described as arbitrary.
Other provisions of Article 6 of the ICCPR have also been raised by Jamaica. So, for instance, Jamaica maintains that Article 6(2) clearly contemplates the possibility of the death penalty in some cases; it reads:
"In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime, and not contrary to the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court."
Likewise, Jamaica has argued that where Article 6(5) of the ICCPR prohibits the imposition of the death penalty on persons below 18 years of age or on pregnant women, this is taken as convincing evidence that Article 6 does not bar the death penalty for persons falling outside the protected categories. Again, the assertion in Article 6(6) that nothing in Article 6 shall be invoked to delay or prevent abolition of the death penalty is itself presented as confirmation that Article 6 does not itself prohibit the death penalty.
Jamaica has also responded to the specific claims made by European countries outside the context of Article 6. For Jamaica, all the legal arguments raised by death penalty critics actually presuppose the lawfulness of the death penalty. So, for instance, where the United Nations Human Rights Committee indicates that abolition is desirable, this is taken as an acknowledgement that International Law will need to be changed if abolition is to become a requirement of the law.
Jamaica has also argued that those treaties that expressly prohibit the death penalty, including the Second Optional Protocol to the International Covenant on Civil and Political Rights and the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, have not been widely accepted and, more importantly, have not been accepted as law by Jamaica.
From a positivist standpoint, Jamaica is correct. There is no binding rule of International Law that requires the abolition of the death penalty in all circumstances. At the same time, however, it may be that Jamaica has been heavily legalistic about an issue that has several moral and political undertones.
PRATT AND MORGAN
Because of these undertones, there has been a steady flow of criticism of the general human rights record in Jamaica, when in fact the central point of tension has actually been the death penalty. In other words, because Jamaica has remained at least nominally in the retentionist camp on death penalty questions, the country may be the subject of more severe criticism about its human rights record than is warranted by the situation in the country. That is part of the long shadow of the death penalty in Jamaica.
Another part of the shadow concerns the well-known line of Privy Council cases that includes Pratt and Morgan vs The Attorney General of Jamaica and Neville Lewis vs The Attorney General of Jamaica. In the former case, the Privy Council held that where, in capital cases, the time between the sentence of death and execution exceeds five years, "there will be strong grounds for believing that the delay was such as to constitute inhumane or degrading punishment or other treatment".
The Privy Council also found that where there was inhumane or degrading punishment or other treatment, contrary to Section 17 of the Constitution, the sentence of death should be commuted to life imprisonment. One result of this decision was that it placed pressure on the state to ensure that all appellate procedures before the courts are completed in five years. In 1997, the Jamaican Government, when faced with the five-year time period, withdrew the country from the First Optional Protocol to the International Covenant on Civil and Political Rights as a means of expediting death penalty cases.
This act prompted considerable criticism from lawyers and human rights activists. Jamaica had withdrawn from a multilateral human rights treaty, and in so doing, had placed itself in a small category of countries to have taken this step; the country had also removed itself from having the benefit of advice from the United Nations Human Rights Committee on a range of human rights questions, including, but not limited to, the death penalty. Again, arising from the death penalty question, Jamaica was represented being significantly against human rights.
The Neville Lewis case has also had an important bearing on death penalty adjudication in Jamaica. To begin with, in this case the Privy Council appears to have converted the five-year presumption in Pratt and Morgan into an enforceable rule, to the effect that once five years have elapsed between sentencing and execution, the death penalty is automatically to be commuted to life imprisonment.
Also, in Neville Lewis their Lordships indicated that the state could not effectively place an upper limit on the time within which international human rights bodies could hear petitions in death penalty cases. Thus, if the Inter-American Commission were to take two years to respond to an individual petition, according to the Neville Lewis decision, this would simply mean that the convicted person would stand a greater chance of having his sentence commuted than if the commission were to take nine months to respond.
The upshot is that the Privy Council has created the opportunity for the Inter-American Commission to decide, in effect, who lives and who dies in Jamaican death penalty cases. In this regard, it should be recalled that in the Pratt and Morgan case the Privy Council had estimated that it would take approximately nine months for petitions to be heard by each international human rights body.
A presentation by the previous attorney general of Jamaica, A.J. Nicholson, Q.C., indicated that of 18 cases involving the full procedure before the Inter-American Commission between 1994 and 2004, none took nine months or less, the shortest period was one year, and the longest was three years, five months. Seven cases took more than two years. This suggests that it may be somewhat difficult for Jamaica to carry out the death penalty unless ways are found to expedite the procedures of the Inter-American Commission.
It has also been argued that some of the delay in death penalty petitions before the commission has been prompted by tardiness on the part of the Jamaican Government; if this is the case, then the Government, too, will need to expedite its procedures in order to meet the five-year time limit. Notice, though, the wider point: in trying to accelerate the pace of the commission's work, and in trying to place time limits on the commission, Jamaica was vulnerable to the charge that it wished to influence the decision-making procedures of an independent human rights body, not the kind of accusation that Jamaica could have welcomed.