The Death Penalty in the English Speaking Caribbean: A Jamaican Perspective

The following  is a guest blog from noted abolitionist , human rights activist and Jamaican constitutional  Attorney , The Hon. Dr. Lloyd Barnett OJ.  Dr. Barnett is a former Chairman of the Independent Jamaican Council for Human Rights.  He has authored several publications on human rights, and has been engaged in many leading Caribbean cases challenging the constitutionality of the imposition of the death penalty.

When the English-speaking Caribbean countries attained independence in the 1960’s, 1970’s and 1980’s, their new sovereign Constitutions contained Bills of Rights which created a new and critical opportunity for attacking the death penalty.  Each of these Constitutions now contained fundamental rights guarantees against cruel, inhumane and degrading punishment or treatment and in favour of fair trials.  The Constitution-makers recognised that the death penalty conflicted with the guarantee against torture, inhuman and degrading punishment or treatment, and being committed to the death penalty, they invariably provided “saving clauses” which after reciting the guarantee typically stated:

“Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorise the infliction of any description of punishment which was lawful…”

These limiting constitutional provisions together with reactionary, conservative judicial interpretation initially condemned all collateral legal challenges to the death penalty to failure.  There was minimal hope in the international human rights fora, since the relevant Conventions to which these countries became parties did not prohibit the death penalty, even if they directly or indirectly discouraged it.  Up to the commencement of the last decade of the 20^th century there had been no sign that judicial intervention would stem the impending flow of blood from the execution of the hundreds of condemned men on death row in the English-speaking Caribbean countries.

Gradually, however as international human rights norms became more pervasive and persuasive and the Judiciary, including the Privy Councillors who made up the final appellate body for the English-speaking Caribbean countries, became more influenced by European human rights jurisprudence and international human rights norms, new possibilities emerged and the strategy was reformulated.

In 1993 in the celebrated case of Pratt & Morgan, the UK Privy Council held that to keep a person under sentence of death for 5 years presumptively amounted to inhuman treatment and substituted sentences of life imprisonment for the death penalty which had been imposed on the two men on whom notices of execution had previously been served three times.  This guideline was followed in other Caribbean countries, resulting in some 300 persons being removed from Death Row.  Guyana alone has not strictly applied the 5 year limit and in 1998 dismissed an appeal where the period of delay was 6½ years.

The second important development was the restriction of the death penalty to particular serious types of murder.  This was first done by legislation which defined certain murders of a particularly serious nature as “capital” attracting the death penalty and others as “non-capital” which did not.  This reform was adopted in Jamaica and Belize and resulted in a reduction of the number of persons exposed to the death penalty.  Nevertheless, it still meant that anyone convicted of capital murder would be automatically sentenced to death without any regard to the circumstances of the offence or of the offender.

In 1999, the third important judicial intervention was made in decisions which held that it was unconstitutional to deprive a condemned person of the opportunity to make representations to bodies exercising the mercy functions of granting  commutation of sentences or to fix arbitrary time limits on such a persons access to international human rights bodies set up by treaty arrangements.

The fourth breakthrough came in 2001 in the case of Reyes, Hughes and Fox when the Eastern Caribbean Court of Appeal held that the automatic imposition of the death penalty on conviction of murder was unconstitutional and unlawful and this decision was upheld by the Privy Council and extended to Jamaica in the case of Watson in 2004, and later in 2006 to other English-speaking Caribbean countries.  Significantly, the Caribbean Court of Justice in the Boyce case, an appeal from Barbados, applied essentially the same principle.  In the case of Barbados and Trinidad and Tobago where savings clauses still apply, they were exempted from this important improvement in the legal position.  As a result of these developments the number of persons under sentence of death in the Region generally has been reduced and as of September 2013 there are only three such persons in Jamaica.

However, there has been no breakthrough on other grounds of challenges such as the cruelty of subjecting a person awaiting execution to deplorable prison conditions or the cruel or inhumane nature of hanging itself as a method of execution.

The position in several English-speaking Caribbean countries today is that despite the increase in murder rates in several countries, there is a “de facto” moratorium. The application of the principle that the extreme punishment of death should only be inflicted in the “worst of the worst” or “rarest of the rare” cases has resulted in the courts imposing the death penalty in only a very limited number of cases.

However, this moratorium is tenuous and of increasingly uncertain duration.  Politicians and legislators still consider that since there is a popular majority in favour of the death penalty, their own popularity and ultimate power can be gained by advocating its application.  The typical reaction to a spate in the murder rate or a gruesome murder is to call for the resumption of hanging rather than the creation of a culture in which life is respected and the establishment of systems for the effective and expeditious apprehension and trial of suspects.

There is also the danger that Governments will seek to reverse by legislation the progress achieved by means of litigation the anti-death penalty movement.  Barbados has amended its Constitution to nullify the judicial decisions relating to delay, mandatory death sentences and due process in applications for mercy and to abolish the jurisdiction of the Court in respect of death penalty issues.  This frontal attack of the separation of powers and the rule of law has attracted the discipleship of Belize and Jamaica.

In 2011 Jamaica despite adopting a new and generally liberal Charter of Rights has sought to push the clock backwards in this area by following that example.  The Charter states:

“(6)      No person shall be subjected to torture or inhuman or degrading punishment or other treatment.”

But adds:

“(7)      Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (6) to the extent that the law in question authorizes the infliction of any description of punishment which was lawful in Jamaica immediately before the commencement of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2010.”

The anti-death penalty movement in the Greater Caribbean must now revise and re-energise its strategy and efforts.  The campaign must be multi-faceted and conducted on the legal, political, educational and cultural fronts.  It is in this context that the marking of the World Day Against the Death Penalty on October 10, 2013 must be viewed.  Significantly, on October 2 a regional civil society organisation named Greater Caribbean For Life was launched.  The declared Vision of the GCL is to achieve the permanent abolition of the death penalty in each and every country of the Greater Caribbean and the creation of a culture of respect for the human right to life and the inherent dignity of all human beings.  Its Mission is that it is constituted with the purpose of campaigning for and working towards the permanent abolition of the death penalty in the Greater Caribbean and supporting Caribbean abolitionist activists and organizations in this Region (comprised by the Caribbean Islands, Mexico, Central America, Colombia, Venezuela and the Guyanas) (hereinafter called “the Greater Caribbean”), and collaborating with the international abolitionist community.

GCL joins with all anti-abolitionist individuals and organisations in the Region and the wider world in supporting World Day Against the Death Penalty and in calling for the elimination of the scourge of capital punishment.

As a human rights activist, abolitionist and Executive Member of GCL. I appeal for a combined effort to employ our energies in reforming the culture of violence and creating a culture of respect for life, empathy for the victims of violence, repentance, forgiveness and reconciliation.

Dr. Lloyd G. Barnett