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Caribbean jurisprudence at riskANTHONY GOMES

Wednesday, May 04, 2011

WITH a general election in the offing, the somewhat confused situation of CaribbeanJurisprudence is once more in question. Will the historic integrity of Caribbean Jurisprudence bemaintained within the Caribbean Court of Justice, or will the present mishmash continue withsome states engaging the CCJ in its Appellate Jurisdiction while others rely only on the OriginalJurisdiction dealing with trade issues involving the Revised Treaty of Chaguaramas?

It is time for Jamaica to stop "sitting on the fence" and join the CCJ as Jamaica's Final Court ofAppeal in concert with the greater number of people who have exhibited their preference for theCCJ in which Jamaica has invested US$27 million. The long-standing relationship with theJudicial Committee of the Privy Council that continues to hand down controversial decisionsshould be terminated as the last vestige of the colonial era. A July 2000 report says: "It is not tobe wondered at therefore, that colonial suitors and lawyers are beginning to question theexpediency of the continuation of the Committee and this feeling is exaggerated by thecumbersome procedure in connection with the Court, the delays occasioned, the expenseincurred, and the manner of delivering judgments."

The Caribbean Court of Justice based in Trinidad and

Tobago

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Some of the Committee's controversial decisions have had the apparent effect of neutralisingjudgements delivered by Jamaican judges, who are considerably more au fait with the prevailingconditions of life in Jamaica, and applying constraints on future judgements. C Roy Reynolds

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had this to say in July 2000: "The legal members of the Committee are the highest legalauthorities in the land, yet it is impossible for them to transport themselves completely to thecircumstances and systems which rule in some of the colonies and dependencies. And it hasbeen frequently remarked that the decisions have been characterised by poverty of appreciationof the points raised and they have not given the satisfaction which judgements of such a tribunalought to impart."

On October 18, 1992, Neville Lewis was convicted and sentenced to death for the heinouskilling of Vic Higgs. After numerous rejections by the Jamaican legal authorities of petitions toappeal to the International Covenant on Civil and Political Rights, and after three warrants wereissued for his execution, but because the period of his appeals exceeded five years, accordingto the precedent expressed in the case of Pratt, the Lords were satisfied that "the sentence ofdeath should be set aside in all cases and commuted to ones of life imprisonment". Thisdevelopment has become well known as the Pratt & Morgan precedent. The extent to which theInternational Rights Associations have established as five years for the process of appeals to beconcluded makes it virtually impossible for executions to be carried out. After all the complexlegal wrangling in the case of Lewis whose appeal time was five years and 10 months, it isevident that the Jamaican justice system was stymied by the Privy Council's judgement thatexists today. In effect, it appears the Privy Council is seeking to influence the exclusion ofcapital punishment in Jamaica due to unenforceability.

Recently there has again been a move by the Privy Council in the case of Peter Dougal whowas responsible for brutally killing a man in St Vincent and the Grenadines. The Privy Councilhas introduced two more restrictions on any sentencing by execution which is even moredifficult to fulfil. The death penalty therefore remains only a remote possibility, due to thesubjective indefinable meaning of the new restrictions. The Privy Council's dictum is reportedthus: "the death penalty should be imposed only in cases which on the facts of the offence are'the most extreme and exceptional', the 'worst of the worst' or the 'rarest of the rare'".Additionally, there must be no reasonable prospect of reform of the offender and no alternative

means of punishment available other than the death penalty.

It would seem the only case which would satisfy the new conditions laid down by the PrivyCouncil would be the crucifixion of our Lord Jesus Christ! With the descriptive phrases "worst ofworst" and "rarest of rare" being so open to interpretation, each sitting member of the Bench islikely to offer a fundamentally different meaning, thereby defeating the possibility of consensusand unanimity. The traditional teaching of the Roman Catholic Church does not excluderecourse to the death penalty, if this is the only possible way of effectively defending humanlives against the unjust aggressor. However, it is very much a remedy of last resort.

This development will not be viewed favourably by Jamaicans who believe in the justifiableadministration of capital punishment. When the time comes MPs and the Senate may have to

vote on the retention of the death penalty in the constitution. Such a voting exercise would haveto reflect the will of the constituents whom they represent, and override any conscientiousobjection they may harbour. It is expected that the death penalty would remain in theConstitution, with the expectation that an alteration to the wording would circumscribe therestrictions placed upon the abandonment of the death penalty by the Privy Council as contrivedby Barbados. The nature and motivation of perpetrators responsible for such unspeakablehomicides that a terrorised society must bear should equitably pay their debt to the families andvictims who have been denied their right to life.

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