Assessing the implications of capital punishment

Having been arrested and convicted of murder in Jamaica two defendants were sentenced to death. But for Pratt and Morgan death would elude them as they began a long wait of many years on death row.

This delay prompted an appeal to be filed with the Judicial Committee of the Privy Council (JCPC). Upon looking into the matter they concluded that in any case where an execution is to take place more than five years after sentencing there will be strong grounds for believing that the delay is such as to constitute “inhuman or degrading punishment or other treatment”.

The JCPC consequently advised that their sentences be changed to life imprisonment. Their Lordships in the JCPC noted that they were “very conscious that the Jamaican government faces great difficulties with a disturbing murder rate and limited financial resources at their disposal to administer the legal system. Nevertheless, if capital punishment is to be retained it must be carried out with all possible expedition.”

A subsequent case dealing with the death penalty that was also examined by the JCPC was Thomas v. Baptiste. This involved a man arrested and convicted of murder in Trinidad and Tobago who was consequently sentenced to death.

One of the main issues for the Law Lords was whether a condemned man had a constitutional right to have his application considered by the Inter-American Commission on Human Rights before the sentence was carried out. The JCPC advised that the execution of the appellants should be suspended, pending a determination of their petitions by the Inter-American Commission on Human Rights.

In assessing this case, Justice Duke E E Pollard, a judge on the Caribbean Court of Justice, states that it is “deficient in an extremely important particular”. This ruling, according to Justice Pollard, seems to erode the separation of powers doctrine by implying that the executive branch of government has the power not only to ratify treaties, but also to incorporate them into the domestic sphere, a power which, in dualist states, is normally reserved to the legislature.

Justice Pollard addresses these and other issues concerning capital punishment in his article – ‘Juridical and Constitutional Implications of CARICOM Treaty Practice’ – which is available in the latest Commonwealth Law Bulletin, Vol. 35, No. 1 (March 2009).

For more information on the Commonwealth Law Bulletin, including subscriptions and submissions of articles, please visit www.informaworld.com/rclb or contact the Legal Editor, Dr Aldo Zammit Borda, at legaleditor@commonwealth.int.

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