Crime & Justice, Headlines, Human Rights, Latin America & the Caribbean

DEATH PENALTY-CARIBBEAN: When Is It Appropriate to Execute?

Peter Richards

PORT OF SPAIN, Nov 9 2006 (IPS) - It took just 15 minutes on Wednesday to shed the image of being a “hangman’s court”, but the ruling by the Trinidad-based Caribbean Court of Justice (CCJ) has also thrown up another issue: When, if ever, is it appropriate to execute convicted killers?

Barbados Attorney-General Dale Marshall said that a judgment handed down Wednesday gave some guidance on the extension of the prerogative of mercy to convicted killers. It remained silent, however, on the time frame for executing convicted killers who have petitions pending before international human right bodies.

The two killers, Jeffrey Joseph, 28, and Lennox Boyce, 25, had argued that the state was wrong to execute them for the murder of 22-year-old Marquelle Hippolyte on the grounds that they had a pending appeal lodged before the Inter-American Commission on Human Rights (IACHR), in which they had argued that the death penalty was inhumane.

The Barbados authorities had read death warrants to the men on two occasions after the island’s Prerogative of Mercy Committee refused to recommend commutation of their sentences.

Their lawyers had argued that the Constitutional Amendment Act 2000 provided convicted persons with a right to petition international bodies or courts regarding their death sentences.

In Wednesday’s announcement, the court held that the exercise of the prerogative of mercy could be reviewed by the courts on the ground of procedural fairness. According to Barbados Attorney-General Dale Marshall, it also crystallised the status of the rights of convicted persons to petition international human right bodies.

“The court held that convicted persons may have a legitimate expectation that the state should wait for a reasonable time for reports from international bodies. It is, however, worthy to note that the court did not determine what length of time was reasonable,” Marshall said in a press statement.

In June, the CCJ was asked to rule on an appeal by the Barbados government against a decision of that island’s court of appeal to commute the death sentence of the two convicted murderers to life imprisonment.

The CCJ was established last year to replace the London-based Privy Council as the region’s final court of appeal. Its establishment came amid heightened fears in the Caribbean that it was being formed to counter the rulings by the Privy Council against the death penalty in the region.

Caribbean leaders and technocrats were forced to go on the offensive to counteract arguments that the CCJ would be nothing more than a “hangman’s court” allowing for regional states to carry out the death penalty.

But so far, only Barbados and Guyana of the 15-member Caribbean Community (Caricom) grouping have made the CCJ their final court in its appellate jurisdiction. All of the countries have, however, signed on to the court’s original jurisdiction.

Last week, Caricom Secretary General Edwin Carrington said more regional states needed to join the court, which he described as being at a “very important stage in its development”.

In filing grounds of appeal for this key case, the Barbados government, through its lead lawyer Roger Forde, told the CCJ that there is no provision in the Barbados constitution that provides a basis for its citizens to petition international bodies such as the IACHR. Therefore, he said, the case should be dismissed.

However in six separate judgments on the issue handed down Wednesday, the seven-member CCJ panel of judges said “the majority of us hold that in this case the respondents had a legitimate expectation that they would be allowed a reasonable time to complete the process before the commission, and that to frustrate that expectation was to deny them the protection of the law.”

Michael De La Bastide, the president of the CCJ, went on to say in a statement that “the judgments are unanimous in holding that the go-ahead given by the Barbados Privy Council (Prerogative of Mercy Committee) for the execution of the respondents shortly after they had initiated proceedings before the IACHR was a contravention of the right to the protection of the law.”

The Barbados Court of Appeal was “bound in this connection” to follow the decisions of the London-based Privy Council in two cases, including one involving the Jamaican government, which established that the “State is under a duty to await the outcome of the process before human right bodies, at least for a reasonable period”.

But in his statement after the ruling, Marshall noted that under the Barbados constitution, the governor general must convene the local Privy Council whenever a mandatory death sentence is passed down on a convicted killer to determine if the prerogative of mercy should be exercised and a pardon granted, or whether a less severe form of punishment should be substituted.

“In this way, the death penalty is only applied in the cases of serious atrocious crimes. This has always been a safety net of the law to ensure that justice did in fact prevail,” Marshall said.

In his separate judgment, Justice Rolston Nelson emphasised the “paradox” which the courts faced in death penalty cases.

A judge was duty-bound to impose the death sentence on a person convicted of murder, but the “Constitution mandates that the convicted murderer must not be hanged unless there is a clemency hearing before a tribunal appointed by the executive,” Nelson wrote.

He added the executive has signed and ratified treaties which confer on the citizen “a right after exhausting his or her domestic appeals to challenge his or her conviction and sentence before an international human rights body that tends not to favour the death penalty.” This he said created a paradox.

The other element of the paradox was “that the death sentence declared by the trial judge to be mandatory really has an expiry date. It is not clear that recent amendments to the constitution have eliminated the paradox,” he said.

Another judge warned that international acts by the executive must be accompanied by treaty-compliant conduct at the local level “in order to engender a legitimate expectation to which municipal courts may accord curial protection in accordance with applicable law”.