THE ISSUE OF THE DEATH PENALTY.

A controversial human rights issue

Only 44 states have ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), aiming at the abolition of the death penalty (Caribbean countries have rejected this). In 2010, 23 countries carried out executions and 67 imposed death sentences in 2010. Methods of execution in 2010 included beheading, electrocution, hanging, lethal injection and shooting (Amnesty International, 2010).

Amnesty International points out that more than two-thirds of the countries in the world have now abolished the death penalty in law or practice. The numbers are as follows:
ABOLITIONISTS Abolitionist for all crimes (Countries whose laws do not provide for the death penalty for any crime): 96

Abolitionist for ordinary crimes only (Countries whose laws provide for the death penalty only for exceptional crimes such as crimes under military law or crimes committed in exceptional 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 executed anyone during the past 10 years and are believed to have a policy or established practice of not carrying out executions. The list also includes countries which have made an international commitment not to use the death penalty): 34 Total abolitionist in law or practice: 139

Retentionist: 58
(Countries and territories that retain the death penalty for ordinary crimes)

FOR
The offender is deserving of his punishment (eye for an eye, let the punishment fit the crime.) It removes the offender from becoming a further threat to society.

AGAINST
It is the premeditated killing of a human being by the state. 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. There is the risk of executing the innocent It is applied unfairly and should not be used. 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.

It provides retribution for victims It is swift Minimal burden on taxpayers

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 irrevocable forever depriving an individual of the opportunity to benefit from new evidence or new

Caribbean Constitutions allow the death penalty to be undertaken even though it may appear to violate the right to life.

Jamaica has committed itself to some of the main 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) that enshrine the right to life , humane treatment, education, health and employment.

Of all the human rights questions facing Jamaica, the death penalty raises the most difficult 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.

The Charter of Fundamental Rights and Freedoms: Section 13 (2)a: speaks to the right to life, liberty and security of the person and the right not to be deprived thereof except in the execution of the sentence of a court in respect of a criminal offence of which the person has been convicted; See also Section 13(7)

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

The Offences Against the Persons Act, Section 2 contd.: Capital Murder includes Murder of a member of the: 1. security forces, 2. a correctional officer, 3. a judicial officer, or 4. a person vested with constabulary functions, acting in the course of his/ her duties.

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 relation to a dwelling house/ any sexual offence,
8. murder for hire/in the case of murder in the course / furtherance of an act of terroism.

Non-Capital murder= all cases of murder outside those classified as capital murder (see previous list) Conviction for non-capital murder shall give rise to a sentence of life imprisonment. Where a person has been convicted of more than one act of non-capital murder, the death penalty shall be imposed (OAPA Section 3 (1A)). Where a woman convicted of an offence punishable with death is found to be pregnant, the death penalty should be replaced by life imprisonment (OAPA Section 3 (2))

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 and NGOs, such as Amnesty International and the Independent Jamaica Council for Human Rights take the aforementioned position.

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).

Article 6 of the ICCPR states that the death penalty may be imposed IN SOME CIRCUMSTANCES, if it for the most serious crimes(although this category remain undefined by the ICCPR). Article 6(1)- Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
Article 6 (2)- 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 provisions of 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.

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

4. . Anyone sentenced to death shall have the right to seek 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 crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. 6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.

Neville Lewis et al v. The Attorney General of Jamaica(1996). Pratt and Morgan v. The Attorney General et al,(1993) Lambert Watson v. The Attorney General of Jamaica (2004).

The JCPC has recently ruled that the death penalty for murder is unconstitutional because it offends the guarantee contained in section 17 of the Jamaican Constitution that no person shall be subjected to torture to torture/inhuman/degrading punishment /other treatment.

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

As a result of the decision of the Judicial Committee of the Privy Council in Lambert Watson v The Attorney General of Jamaica (2004), mandatory sentences 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 consider whether or not the person found guilty of murder should be executed. Under the pre-existing system in Jamaica, as long as the accused was found guilty 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 view that this approach amounted to inhuman or degrading punishment or treatment inasmuch as it required the sentencing judge to impose a sentence without regard to the individuality and individual circumstances of the guilty person. The Privy Council had earlier indicated its stance against mandatory death sentences in three cases from St.Kitts-Nevis, Belize and St. Lucia, namely, Fox v R, Reyes v R, and R v Hughes, all decided in March 2002.

In 1993, Pratt and Morgan case, the Privy Council held that where the time period between the imposition of a sentence of death and execution exceeds five years, it shall be presumed that execution would amount to inhuman or degrading punishment or treatment, contrary to the Jamaican Constitution. This presumption has naturally been extended to all Commonwealth Caribbean States, as the language of the Jamaican Constitution on this point is the same as that of all former British colonies in the region.
In short, if the State does not ensure that execution takes place within five years of sentencing, the person found guilty of murder is apt to have his or her sentence commuted to life imprisonment. But we may now take the statement further: in Pratt and Morgan, the Privy Council referred to the presumption that the passage of five years would lead to commutation. Since then, however, in Neville Lewis v AG of Jamaica, the Privy Council has actually treated the presumption as a rule, so that once five years have passed, the Privy Council is likely to regard execution as inhuman treatment.

The Neville Lewis case has also had an important bearing on death penalty adjudication in Jamaica. In this case the Privy Council appears to have converted the fiveyear 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 the 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

Discussion