The Jefferson Cumberbatch Column – Crime, Punishment and the Rule of Law
The caller was insistent in his suggestion that day, the moderator equally so. It was a couple weeks ago when a caller to “Brass Tacks” tried to convince the moderator, Mr. David Ellis, and the rest of the audience that since it had seemingly become impossible to execute convicted murderers by hanging them, the state might consider amputation of the very hand that had committed the dastardly deed as a suitably dissuasive punishment.
He would not be deterred from this opinion and Mr. Ellis’s various ripostes that it sounded too much like Sharia law; that it was not cultural and that it simply would not fly locally were all to no avail. For my part, I would have remarked that such a punishment would be inhuman and degrading and thus prima facie unconstitutional [see section 15 of the Barbados Constitution] but I am certain that the caller would have sought to argue in response that it would be no less so than execution by hanging itself.
It might have been then too much to explain that execution by hanging is whether mandatorily ordered or carried out after “any” delay is an express exception to this protection under section 15(2) and (3).
The caller’s suggestion is consistent with the view of many Barbadians that any misconduct should be met with the harshest possible penalty if it is to deter others of like intention from behaving similarly or, as Voltaire once so elegantly put it in a different context, “pour encourager les autres”. And given the incidents of reckless gunplay on Kadooment night on Spring Garden and on Friday in the Fairchild Street Bus Terminal, where gunmen in both instances fired into a crowd in order to kill or wound others (successfully in the former instance), and the recent spate of shooting deaths, public discourse has once again turned to the application of the death penalty as a punishment for murder.
This reaction is understandable. The instinct for revenge is inherent in most of us and in light of our cultural penchant for adhering to the Old Testament injunctions, such as Exodus 21:23-25 –“And if any mischief follow, then thou shalt give life for life, Eye for eye, tooth for tooth, hand for hand, foot for foot, Burning for burning, wound for wound, stripe for stripe…” the notion of the State murdering murderers for their offence is entirely apposite.
Hence, at least the first element of this edict is taken literally in these parts. Never mind that other condign punishments are prescribed therein to which we do not adhere, or that the later Christian teaching in Matthew 5: 38-41significantly recants this – “Ye have heard that it hath been said, An eye for an eye, and a tooth for a tooth: But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also. And if any man will sue thee at the law, and take away thy coat, let him have thy cloke also. And whosoever shall compel thee to go a mile, go with him twain”, or that Mahatma Gandhi offers the sage advice that following this advice to the letter means that everyone will eventually be blind. The local attitude, when faced with this dissonance is to revert to type and argue that “hanging” is still on the statute books and thus eminently lawful.
This might partly explain why one prominent local cleric is quoted in another section of the press during last week as calling for the resumption of the death penalty on one page and for prayer on a subsequent one as the answer to our present pass -“May God forgive you, I won’t”?
That hanging is still on the books is true to some extent. As I demonstrated above, the Constitution permits the mandatory execution of convicted murderers by hanging as provided in the Offences against the Person Act at any time after their conviction as a qualification to the individual fundamental right not to be subjected to inhuman and degrading punishment. This is further fortified by the notorious section 26 of the Constitution, re-enacted in section 15(2), that immunizes any statutory provision that existed as law prior to 1966 and that has not been since altered from allegations of incompatibility with the fundamental rights provisions.
This is part only of the actuality however. Barbados has also voluntarily ratified, in an exercise of its sovereign status, a number of conventions and treaties that rigidly proscribe and, in some cases, negative the execution of convicted murders. This ratification, while it binds the State only to conduct its affairs in accordance with the provisions of the treaties and does not thereby create local obligations, also creates a legitimate expectation in the convicted individual that he should be entitled to pray these obligations in aid of his attempt to have his right to life recognized.
As Justice Wit of the CCJ said in AG et al. v Joseph v Boyce (2006):
“On close scrutiny, it is clear that the right to petition the Inter-American Commission exists whether or not it is authorised or implemented by national legislation. Any person in Barbados, or elsewhere, who wants to lodge a petition, can do so. The State cannot prevent anyone from initiating these proceedings…
Accordingly, the absence of domestic legislation normally does not pose a problem. However, if the State were to act in such a manner as to render the international procedure illusory, as for example where the petitioner is a death row prisoner whom the State decides to hang without allowing a reasonable time for his petition before the Inter-American bodies to be concluded, problems do arise. It would seem rather obvious that the State should not act in this way. States are bound to perform the treaties which they have ratified in good faith. This obligation, it would seem to me, prohibits the State from pre-empting the outcome of pending legal processes by executive action, a general legal principle that also exists in the common law: see Thomas v Baptiste.”
Not that I am fooling myself to believe that Barbadians are even prepared to be convinced by these dicta. Only this week I overheard the moderator on another call in programme suggesting that the State should ignore international treaty obligations, human rights bodies and, presumably, the rule of law and simply execute convicted murderers since, in effect, dead men tell no tales and therefore cannot lay claim to any fundamental rights.
The nub of similar twaddle pervades the entire local public discourse. I am not certain how many of my readers have read the recent CCJ decision on the admissibility of uncorroborated oral confessions as proof of commission of an offence, but the two accused in that case were sentenced to death in the High Court and had their appeals dismissed by the Court of Appeal.
There are a few wags who carp at the practices of criminal defence and human rights attorneys in Barbados, some going so far as to accuse them of complicity in the current state of crime in the island. How many of them, I wonder, would have rued the deaths by mandatory order for the hanging of these two youngsters on the sole basis of the subsequently impugned and unlawful confessions?
It is said that most lawyers and legally trained individuals are against the execution of the death penalty. This in itself may be an overstatement, but I think most of us know that our system of justice is not perfect and that it is far better for ten guilty men to go free than it is for one innocent man to be wrongfully put to death.
No one seeks to condone murder, but is this any more likely to be foreclosed by the hanging of the perpetrators rather than seeking the prevention of the event in the first place, however difficult such a task may be?
To be continued…