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

CARIBBEAN: Regional Court Tested by Death Penalty Case

Peter Richards

PORT OF SPAIN, Jun 22 2006 (IPS) - Whatever the outcome of their case, Boyce and Joseph are likely to become household names in legal circles in the Caribbean.

They may be just as well-known as those of Pratt and Morgan, the two Jamaican killers whose appeal to the London-based Privy Council gave a reprieve to any inmate who has spent more than five years on death row.

In November 1993, the Privy Council ruled that “in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute inhuman or degrading punishment or other treatment” and recommended “commutation to life imprisonment”.

The ruling incensed Caribbean government officials who regarded it as stifling attempts to carry out the death penalty, since the appeals process can easily eat up the five-year window.

Now the government of Barbados wants the Caribbean Court of Justice (CCJ) to reverse the ruling so that it may execute Lennox Ricardo Boyce, 28, and Jeffrey Joseph, 29, for the murder of 22-year-old Marquelle Hippolyte in 1999. The CCJ has replaced the Privy Council as Barbados’ final court of appeal.

Because Boyce and Joseph have spent nearly five years in jail, the Barbados appeals court commuted their death sentences to life imprisonment last May.

Boyce and Joseph had successfully argued that it was a breach of their constitutional rights to be executed while they were awaiting a final report from the Inter-American Commission on Human Rights (IACHR), an organ of the Organisation of American States.. Their appeal had been filed in 2004.

The Barbadian government notes that the five-year limit has not yet expired, and that in any case, the condemned men do not have an automatic right to appeal to any international human rights body to review their sentence.

The case adds new fuel to the death penalty debate raging in Caribbean newspaper columns and radio and television talk shows. With the appeals hearings now over, the Caribbean Court of Justice’s president, Michael de la Bastide, said this week that a ruling would be announced at an unspecified later date.

“How the Caribbean Court of Justice rules will carry significant repercussions which will take us into what is called the politics of the judiciary,” said noted Caribbean criminologist Ramesh Deosaran.

“Will it be an activist judgment or what you might call an obstructionist judgment, following the letter of the law, or trying to pave the way forward in terms of the incremental abolishment of the death penalty by humanitarian views?” he told reporters on Wednesday at the end of the CCJ hearing.

The Barbados government had filed eight grounds of appeal challenging the decision of the island’s appeals court to commute the death sentences of Boyce and Joseph, to whom death warrants had been read on two occasions last year. The last execution in Barbados took place in 1984.

The government contends that although the island signed and ratified the IACHR convention, neither that convention nor any other human rights convention was part of the domestic law of the island when Barbados attained its independence in November 1966 or when it ratified the treaty in July 1978.

“Accordingly, there can be no constitutional right to petition the Inter-American Commission for Human Rights and not be executed before it has reported unless that right exists in law at independence on 30th November 1966 when the constitution came into being,” said Roger Forde, the government’s lawyer.

But the lawyers for the convicted men have asked the CCJ to reject the arguments of the government, contending that the Privy Council rulings of 1999 and 2000 gave convicted killers the right to be heard before the Mercy Committee as well as preventing their execution before the determination of their human rights petitions.

Trinidad-based human rights lawyer Douglas Mendes said while he accepted that the CCJ was an entirely new body that had become the highest court for Barbados and was not bound by the rulings of the Privy Council, to do otherwise would “undermine the harmony and put the entire law in the region in a state of flux”.

“You could have a situation where the highest court in Barbados adopts one position and the other courts in the region follow the Privy Council,” he said.

Last year, the London-based human rights group Amnesty International urged the Barbados authorities not “to flout international law by executing people on whose cases appeals are still to be heard”.

“This would violate Barbados’s obligations under international law,” said Amnesty, which has also expressed concern over moves in recent years by Trinidad and Tobago, Jamaica and Guyana “to limit human rights protection for individuals” and that “other countries may follow their example”.

Barbados is just one of two Caribbean states, the other being Guyana, that has made the CCJ its final court of appeal, replacing the Privy Council.

Since its establishment, the CCJ has been caught up in the ongoing debate in the Caribbean as it relates to the death penalty, with opponents saying the court is an answer to regional governments’ determination to bypass the rulings of the Privy Council that have made carrying out the death penalty a difficult undertaking.

In fact, the Privy Council has ruled the mandatory death sentence unconstitutional in all English-speaking Caribbean countries expect Barbados and Trinidad and Tobago.

Amnesty has also said that while executions have become increasingly rare in the English speaking Caribbean, support for the death penalty remains high.

“The region suffers from a high, and often increasing, crime rate and executions are seen as a method of crime control,” it added.

Deosaran said the ruling could have far-reaching implications since it could mean that “the judiciary has more power as it expressed itself in the Barbados Court of Appeal by commuting the death sentence to life imprisonment, or would it take the argument of the Barbados government and say well no, the judiciary cannot exceed the power of the executive having made a rule through the governor general.”

CCJ President de la Bastide told IPS that while he was aware that the newly inaugurated court was being referred to as a “hangman’s court” in certain sections of the regional community, he was not concerned that the appeal from Barbados would provide added pressures on the seven-member judges hearing the matter.

“Part of the judges’ responsibilities is to resist pressures and when you take the oath of a judge you accept that obligation to decide cases without fear or favour,” de la Bastide said, adding that judges had to “maintain a certain distance from what may be regarded as popular opinion”.

“If you take the Privy Council itself, some of its decisions have had the effect of ruling the death penalty unconstitutional in certain situations, in other cases it has ruled the death penalty constitutional and in the case of Trinidad and Tobago and Barbados it has held that because of the savings clause, the death penalty although it is cruel and unusual, it is nonetheless constitutional.”