Caribbean jurisprudence at risk

ANTHONY GOMES Wednesday, May 04, 2011

WITH a general election in the offing, the somewhat confused situation of Caribbean Jurisprudence is once more in question. Will the historic integrity of Caribbean Jurisprudence be maintained within the Caribbean Court of Justice, or will the present mishmash continue with some states engaging the CCJ in its Appellate Jurisdiction while others rely only on the Original Jurisdiction 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 of Appeal in concert with the greater number of people who have exhibited their preference for the CCJ in which Jamaica has invested US$27 million. The long-standing relationship with the Judicial Committee of the Privy Council that continues to hand down controversial decisions should be terminated as the last vestige of the colonial era. A July 2000 report says: "It is not to be wondered at therefore, that colonial suitors and lawyers are beginning to question the expediency of the continuation of the Committee and this feeling is exaggerated by the cumbersome procedure in connection with the Court, the delays occasioned, the expense incurred, and the manner of delivering judgments."

The Caribbean Court of Justice based in Trinidad and Tobago 1/1

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

had this to say in July 2000: "The legal members of the Committee are the highest legal authorities in the land, yet it is impossible for them to transport themselves completely to the circumstances and systems which rule in some of the colonies and dependencies. And it has been frequently remarked that the decisions have been characterised by poverty of appreciation of the points raised and they have not given the satisfaction which judgements of such a tribunal ought to impart." On October 18, 1992, Neville Lewis was convicted and sentenced to death for the heinous killing of Vic Higgs. After numerous rejections by the Jamaican legal authorities of petitions to appeal to the International Covenant on Civil and Political Rights, and after three warrants were issued for his execution, but because the period of his appeals exceeded five years, according to the precedent expressed in the case of Pratt, the Lords were satisfied that "the sentence of death should be set aside in all cases and commuted to ones of life imprisonment". This development has become well known as the Pratt & Morgan precedent. The extent to which the International Rights Associations have established as five years for the process of appeals to be concluded makes it virtually impossible for executions to be carried out. After all the complex legal wrangling in the case of Lewis whose appeal time was five years and 10 months, it is evident that the Jamaican justice system was stymied by the Privy Council's judgement that exists today. In effect, it appears the Privy Council is seeking to influence the exclusion of capital punishment in Jamaica due to unenforceability. Recently there has again been a move by the Privy Council in the case of Peter Dougal who was responsible for brutally killing a man in St Vincent and the Grenadines. The Privy Council has introduced two more restrictions on any sentencing by execution which is even more difficult to fulfil. The death penalty therefore remains only a remote possibility, due to the subjective indefinable meaning of the new restrictions. The Privy Council's dictum is reported thus: "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 Privy Council would be the crucifixion of our Lord Jesus Christ! With the descriptive phrases "worst of worst" and "rarest of rare" being so open to interpretation, each sitting member of the Bench is likely to offer a fundamentally different meaning, thereby defeating the possibility of consensus and unanimity. The traditional teaching of the Roman Catholic Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives 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 justifiable administration 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 have to reflect the will of the constituents whom they represent, and override any conscientious objection they may harbour. It is expected that the death penalty would remain in the Constitution, with the expectation that an alteration to the wording would circumscribe the restrictions placed upon the abandonment of the death penalty by the Privy Council as contrived by Barbados. The nature and motivation of perpetrators responsible for such unspeakable homicides that a terrorised society must bear should equitably pay their debt to the families and victims who have been denied their right to life.

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