2012fd13a deathpenalty2

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THE ISSUE OF THE DEATH PENALTY.


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A controversial human rights issue

Only 44 states have ratified the Second OptionalProtocol to the International Covenant on Civil andPolitical Rights (ICCPR), aiming at the abolition of thedeath penalty (Caribbean countries have rejectedthis).

In 2010, 23 countries carried out executions and 67imposed death sentences in 2010. Methods ofexecution in 2010 included beheading, electrocution,hanging, lethal injection and shooting (AmnestyInternational, 2010).


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Amnesty International points out that more than two-thirds ofthe countries in the world have now abolished the death penaltyin law or practice. The numbers are as follows:ABOLITIONISTS

Abolitionist for all crimes (Countries whose laws do not provide for the death penalty forany crime): 96

Abolitionist for ordinary crimes only (Countries whose laws provide for the death penaltyonly for exceptional crimes such as crimes under military law or crimes committed inexceptional circumstances): 9

Abolitionist in practice (Countries which retain the death penalty for ordinary crimes such

as murder but can be considered abolitionist in practice in that they have not executedanyone during the past 10 years and are believed to have a policy or established practice ofnot carrying out executions. The list also includes countries which have made aninternational commitment not to use the death penalty): 34

Total abolitionist in law or practice: 139


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Retentionist: 58

(Countries and territories that retain thedeath penalty for ordinary crimes)


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FOR AGAINSTThe offender is deserving of his punishment (eye for an eye, let

the punishment fit the crime.)

It is the premeditated killing of a human being by the state.

It removes the offender from becoming a further threat to society. It a violation of the right to life as set out in the Universal

Declaration of Human Rights.It is a cruel, inhumane and

degrading form of punishment. It violates the fundamental right

to life and the right not to be subjected to torture or other cruel,

inhuman or degrading treatment or punishment as set out in the

Universal Declaration of Human Rights.

It provides retribution for victims There is the risk of executing the innocent

It is swift It is applied unfairly and should not be used.

Minimal burden on taxpayers There is no empirical evidence to suggest that it is a deterrent to

crime.The death penalty is not a viable form of crime control.

Irreversible. It is irrevocable, and where criminal justice systems

are open to error or discrimination, the death penalty will

inevitably be inflicted on the innocent.

Capital punishment denies due process of law. Its imposition is

often arbitrary, and always irrevocableforever depriving an

individual of the opportunity to benefit from new evidence or new


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Caribbean Constitutions allow the deathpenalty to be undertaken even though it may

appear to violate the right to life.


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Jamaica has committed itself to some of themain obligations connected to human rights

law. It is party to 2 main treaties, the International

Covenant on Civil and Political Rights (ICCPR)and the International Covenant on Economic,Social and Cultural Rights (ICESCR) thatenshrine the right to life , humane treatment,education, health and employment.


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Of all the human rights questions facing

Jamaica, the death penalty raises the mostdifficult and controversial issues in practice. Strong public support for the death penalty

to remain part of Jamaican law (65% in 2000). The death penalty is retained for capital

murder.


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The Charter of Fundamental Rights andFreedoms:

Section 13 (2)a: speaks to the right to life,liberty and security of the person and theright not to be deprived thereof except in theexecution of the sentence of a court inrespect of a criminal offence of which theperson has been convicted;

See also Section 13(7)


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The Offences Against the Person Act(OAPA). Sections 2 & 3 of Jamaicas Offences Against

the Person Act offers a listing of thecircumstances in which:1. charges of capital murder (giving rise to the

death sentence upon conviction) &2. non-capital murder, may be brought against

the accused.


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The Offences Against the Persons Act,Section 2 contd.:

Capital Murder includesMurder of a member of the:1. security forces,2. a correctional officer,

3. a judicial officer, or4. a person vested with constabularyfunctions, acting in the course of his/ herduties.


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Capital murder also occurs upon the murder of :5. a witness/ a party in a civil cause/ criminal matter,6. a juror or a JP acting in the execution of judicial

functions,Capital murder also includes the following cases:7. a murder committed in the course/furtherance of

robbery, burglary/ house-breaking, arson in relationto a dwelling house/ any sexual offence,

8. murder for hire/in the case of murder in the course /furtherance of an act of terroism.


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Non-Capital murder= all cases of murder outsidethose classified as capital murder (see previouslist)

Conviction for non-capital murder shall give riseto a sentence of life imprisonment. Where a person has been convicted of more

than one act of non-capital murder, the deathpenalty shall be imposed (OAPA Section 3 (1A)).

Where a woman convicted of an offencepunishable with death is found to be pregnant,the death penalty should be replaced by lifeimprisonment (OAPA Section 3 (2))


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Both local and international opponents of thedeath penalty sometimes argue that the

retention of the death penalty in Jamaica isinconsistentwith International Law. Various European governments and NGOs,

such as Amnesty International and theIndependent Jamaica Council for HumanRights take the aforementioned position.


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For Jamaica, the death penalty is notprohibited in International Law.

The governing rule of International Law is setout in Article 6 of the International Covenanton Civil and Political Rights (the ICCPR).


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Article 6 of the ICCPR states that the death penalty may be imposed IN SOMECIRCUMSTANCES, if it for the most serious crimes(although this categoryremain undefined by the ICCPR).

Article 6(1)- Every human being has the inherent right to life. This right shall beprotected by law. No one shall be arbitrarily deprived of his life.

Article 6 (2)- In countries which have not abolished the death penalty, sentenceof death may be imposed only for the most serious crimes in accordance with thelaw in force at the time of the commission of the crime and not contrary to theprovisions of the present Covenant and to the Convention on the Prevention andPunishment of the Crime of Genocide. This penalty can only be carried outpursuant to a final judgment rendered by a competent court.

Article 6 (3)- When deprivation of life constitutes the crime of genocide, it isunderstood that nothing in this article shall authorize any State Party to thepresent Covenant to derogate in any way from any obligation assumed under theprovisions of the Convention on the Prevention and Punishment of the Crime ofGenocide.


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4. . Anyone sentenced to death shall have the right toseek pardon or commutation of the sentence.Amnesty, pardon or commutation of the sentence of

death may be granted in all cases.

5. Sentence of death shall not be imposed for crimescommitted by persons below eighteen years of ageand shall not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or toprevent the abolition of capital punishment by anyState Party to the present Covenant.


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Neville Lewis et al v. The Attorney General ofJamaica(1996).

Pratt and Morgan v. The Attorney General etal,(1993) Lambert Watson v. The Attorney General of

Jamaica (2004).


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The JCPC has recently ruled that the deathpenalty for murder is unconstitutional

because it offends the guarantee contained insection 17 of the Jamaican Constitution thatno person shall be subjected to torture totorture/inhuman/degrading punishment/other treatment.


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Throughout the region, independent Caribbean States have retained the deathpenalty for murder.

As a result of the decision of the Judicial Committee of the Privy Council inLambert Watson v The Attorney General of Jamaica (2004), mandatorysentences of death are no longer allowed in Jamaica. In essence, this means that

in each death penalty case, the sentencing judges will be obliged to considerwhether or not the person found guilty of murder should be executed.

Under the pre-existing system in Jamaica, as long as the accused was foundguilty for certain types of murder (such as murder in the course of a robbery),then the sentence of death was automatic.

In the Lambert Watson case, the Privy Council took the viewthat this approachamounted to inhuman or degrading punishment or treatment inasmuch as itrequired the sentencing judge to impose a sentence without regard to theindividuality and individual circumstances of the guilty person. The Privy Councilhad earlier indicated its stance against mandatory death sentences in three casesfrom St.Kitts-Nevis, Belize and St. Lucia, namely, Fox v R, Reyes v R, and R vHughes, alldecided in March 2002.


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In 1993, Pratt and Morgan case, the Privy Council held that where thetime period between the imposition of a sentence of death andexecution exceeds five years, it shall be presumed that execution wouldamount to inhuman or degrading punishment or treatment, contrary tothe Jamaican Constitution. This presumption has naturally been

extended to all Commonwealth Caribbean States, as the language of theJamaican Constitution on this point is the same as that of all formerBritish colonies in the region.

In short, if the State does not ensure that execution takes place withinfive years of sentencing, the person found guilty of murder is apt to havehis or her sentence commuted to life imprisonment. But we may now

take the statement further: in Pratt and Morgan, the Privy Councilreferred to the presumption that the passage of five years would lead tocommutation. Since then, however, in Neville Lewis v AG of Jamaica,the Privy Council has actually treated the presumption as a rule, so thatonce five years have passed, the Privy Council is likely to regardexecution as inhuman treatment.


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The Neville Lewis case has also had an important bearing ondeath penalty adjudication in Jamaica.

In this case the Privy Council appears to have converted the five-year presumption in Pratt and Morgan into an enforceable rule tothe effect that once five years have elapsed between sentencingand execution, the death penalty is automatically to be commutedto life imprisonment.

Also, in the Neville Lewis their Lordships indicated that the Statecould not effectively place an upper limit on the time within whichinternational human rights bodies could hear petitions in deathpenalty cases. Thus, if the Inter-American Commission were totake two years to respond to an individual petition, according tothe Neville Lewis decision, this would simply mean that theconvicted person would stand a greater chance of having hissentence commuted than if the Commission were to take ninemonths to respond


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Discussion

2012fd13a deathpenalty2

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