The Jefferson Cumberbatch Column – Crime, Punishment and the Rule of Law II
It was no surprise, for at least two main reasons, that popular reaction to last week’s column was largely negative. In the first place, it treated arguments against the implementation of the death penalty, a veritable no-no at this time when most citizens feel under siege at the wanton displays of recklessness effected through the indiscriminate discharge of firearms in crowded public places by lawless men hell-bent on ensuring the death of a foe, no matter the nature of the collateral damage that might be caused. For the average Jack Barbados, such misconduct is deserving of nothing but the ultimate punishment should the death of anyone be the result.
Surprisingly, for a jurisdiction steeped in selectively following Biblical instruction to the letter, my prayer in aid last week of the words of Jesus, according to Matthew, in response to the Old Testament diktat of an eye for an eye availed nothing; one reader assured me that Jesus’s exhortation rather to turn the other cheek was meant for those of higher moral fibre only, leading to the inescapable conclusion that those of us not so endowed should adhere to the spirit and letter of the Judaic injunction and take a life for a life.
Second, as with other issues in the local public domain, my stance differs fundamentally from the seeming majority local view and legislation in a number of instances; among them, corporal punishment in schools; capital punishment; and the right of an adult man or woman to practise his or her sexual orientation in private with a similarly consenting adult.
As it is with most debates in this jurisdiction, excluding of course those dealing with partisan politics or rather partisan political personalities, the effluxion of a period of nine days or fewer has served to remove the allure of a discussion of the merits of capital punishment or, rather, the demerits of its non-implementation, from the public domain. However, there are still one or two aspects of the discourse that merit commentary and I propose to do so briefly in today’s column.
There is, first, the proposition that I have heard repeatedly that we should seek to withdraw from any international treaty that currently constrains our implementation of the death penalty. A few readers may recall that a similar sentiment was an early catalyst for urging the adoption of the Caribbean Court of Justice [CCJ] as the final appellate tribunal for the region. Since the Judicial Committee of Her Majesty’s Privy Council [JCPC], some loosely reasoned, had effectively stymied the carrying out of the death penalty by its jurisprudence, the region needed a final court that would truly reflect the aspirations of the people of the region in that regard.
That reasoning however, failed to take into account that the reality that law is not a slave to populist concepts of justice but, rather, a principled divination of what is fair and just in the circumstances. Moreover, the averral that the CCJ should follow the precedents established by the JCPC unless these were incorrect in its view dimmed the hopes of many in the region for the soonest “popping of the necks” of those convicted of murder.
There has been some legislative effort towards this desideratum. Barbados had amended its Constitution, in a reference I made last week, so as to foreclose any argument by a convicted murderer that the sentence of death imposed on him was mandatory and thus unconstitutional or that too lengthy a period has elapsed between the imposition of the sentence and the proposed date of his execution as had been successfully argued in Pratt and Morgan v R.
However, in a later volte-face, the alteration of that provision was proposed in a Constitution Amendment Bill of 2014 that, while it preserved the constitutionality of the death penalty, nevertheless removed the thitherto existing constitutional legitimacy of the mandatory sentence of death, and itself foreclosed a claim of unconstitutionality based on the conditions under which the convicted man was held pending his execution.
Interestingly enough, that 2014 Bill, following the ruling of the Inter American Court of Human Rights, also substantially amended the notorious saving law clause in section 26 by having all existing law construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with sections 12 to 23 (the fundamental rights provisions) of the Constitution.
It will be recalled that among the orders of the IAHCR in Boyce et al v Barbados (2007) were that
(i) “The State shall adopt, within a reasonable time from the date of notification of the present Judgment, such legislative or other measures as may be necessary to ensure that the imposition of the death penalty does not contravene the rights and freedoms guaranteed under the Convention, and in particular, that it is not imposed through mandatory sentencing, in the terms of paragraphs 127(b) and 128 hereof…” and
(ii) “The State shall adopt, within a reasonable time from the date of notification of the present Judgment, such legislative or other measures necessary to ensure that the Constitution and laws of Barbados are brought into compliance with the American Convention, and, specifically, remove the immunizing effect of section 26 of the Constitution of Barbados in respect of “existing laws”, in the terms of paragraphs 127(c) and 128 hereof ”.
The proposed Bill (I am unsure of its current legislative status) would seek now to give effect to these orders of the human rights body.
So far as denunciation of the American Convention on Human Rights is concerned, the Treaty itself makes eminently clear provision for this in Article 78. 1.
“The States Parties may denounce this Convention at the expiration of a five-year period from the date of its entry into force and by means of notice given one year in advance… Such a denunciation shall not have the effect of releasing the State Party concerned from the obligations contained in this Convention with respect to any act that may constitute a violation of those obligations and that has been taken by that state prior to the effective date of denunciation…”
The critical issue is whether any local governing administration has the geopolitical or other fortitude to withdraw from a human rights treaty solemnly entered into a mere few decades ago simply so as to enable the hanging of individuals. After all, what will the other States parties think of us?
A side issue of the debate has been the deterrent effect of hanging and the true sequelae of the 1999 multiple hangings in Trinidad & Tobago. There have been assertions that there was an immediate decline in the murder rate thereafter, but the statistics do not bear out this. While there were 98 murders in 1998, the year preceding the executions, and a declined to 93 in 1999, by the year 2000, there were 118 murders; a figure that would rise to 151 in 2001, (a mere two years after the hangings) and the most ever recorded in a single year since 1984. It may be argued that these figures clearly do not corroborate any assertion of a deterrent effect because of execution.
The usual retort to this is that hanging is not to deter but rather to punish for the taking of a life. Is it too much to ask then that such an ultimate step for which we are all responsible should be subject to the most stringent safeguards if the rule of law is to prevail?