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<span style="font-weight: bold"><span style="color: #CC0000"><span style="font-size: 17pt">34:15 - Hangman wanted</span></span></span>
published: Wednesday | November 26, 2008
PARLIAMENT yesterday gave warm-up instructions to the hangman, telling him through a unanimous conscience vote that he was wanted back at work soon.
However, the Senate will have a say, by way of a similar vote, whether the death penalty should be retained.
Prime Minister Bruce Golding said yesterday's decision, taken by elected members of the House of Representatives, might take precedence if the Senate votes to abolish the death penalty.
"I think a great deal of weight would have to be attached to what the 60 members of parliament said because those were the persons who were elected by the people," Golding told journalists outside Gordon House shortly after the vote.
Provided that the Senate votes in a similar manner to the House, Golding has said he would move an amendment to the Constitution to remove the stricture which requires that the process of appeals through execution takes place within five years of sentencing or a condemned inmate's sentence should be commuted.
The prime minister also said there were no international treaties or conventions that conflict with the vote of MPs to retain capital punishment on its books.
10 mps absent
Thirty-four members, including Golding, voted for the death penalty to remain on the law books, while 15 voted against. Ten MPs were absent. The House speaker did not have a vote.
On the reverse question of whether MPs were in favour of the abolition of capital punishment, 36 MPs said no, while 15 voted to remove the death penalty. The additional votes came from two MPs who had entered the House during voting on the second.
"Provided that the position that the Lower House took today holds, then we are going to stand ready to carry out that penalty whenever any person on death row has exhausted his avenues of appeal," the prime minister said.
Punishment appropriate
Unlike Opposition Leader Portia Simpson Miller, who was absent from the sitting of the House and had never made clear her stance on the death penalty, Golding said he believed the punishment was appropriate.
"... The death penalty, which I think is an appropriate penalty for someone who takes someone else's life in those cases that we define as capital murder, I believe [the judicial system] it can withstand that scrutiny," the prime minister said.
He added: "I have looked at the reviews that have been conducted by the Privy Council in England and I would venture to say that, whatever deficiencies may have impaired a trial here, it is not going to pass the Bar in the Privy Council."
Golding said that as long as the Privy Council "is an avenue of appeal open to the persons, then I am satisfied that once somebody is convicted, then the death penalty should be carried out".
Eight persons on death row
There are currently eight persons on death row and, according to Golding, none have exhausted their appeals.
The condemned man has a right of appeal to the Judicial Committee of the Privy Council and the International Commission on Human Rights.
Yesterday's conscience vote was the second such in the history of modern Jamaica on abolition of the death penalty.
Of the 44 members who voted in the first conscience vote in 1979, a majority of 24 members voted in support of the retention of hanging while 19 voted against. As occurred yesterday, Simpson Miller was also absent then, prompting government members to heckle the Opposition about its leader.
"If you are voting for, then vote for. If you are voting against, then vote against. But don't run and hide," West St Thomas MP James Robertson shouted across the aisle.
Simpson Miller said on Sunday that she had a prior engagement overseas that would prevent her from voting.
<span style="font-weight: bold"><span style="color: #CC0000"><span style="font-size: 17pt">The bungling of Pratt and Morgan</span></span></span>
published: Wednesday | November 26, 2008
Delano Franklyn, Contributor
Earl Pratt in a contemplative mood just after he was released from prison after serving 30 years for murder. - Norman Grindley/Deputy Chief Photographer
The last person to have faced the gallows in Jamaica
was in 1988. In 1993, in the case of Pratt and Morgan v The Attorney General of Jamaica, the Judicial Committee of the Privy Council (JCPC) held that a delay in excess of five years or more would constitute 'cruel and inhuman treatment' contrary to the Constitution of Jamaica.
The decision in Parliament to resume hanging, as is clearly stipulated in the Constitution, forces us to remind ourselves of what led to Pratt and Morgan being on death row for more than five years. Where the sentence of death for capital murder is imposed by the courts, the appellate process has to be exhausted within five years in order to avoid the Pratt and Morgan principle.
Lord Griffith, who delivered the judgment of the case on behalf of the other six law lords, outlined that, after the dismissal of the appeal by the Court of Appeal in Jamaica in 1980, and the notice for appeal by the appellants' counsel in 1981, "it was at this stage that Their Lordships would have expected the governor general to refer the case to the Jamaican Privy Council (JPC) to advise him whether or not the men should be executed in accordance with sections 90 and 91 of the Constitution".
SIR FLORIZEL GLASSPOLE
If Sir Florizel Glasspole, who was the governor general at the time, had acted at that point, then Pratt and Morgan's counsel would have had to move swiftly to take their case to the Judicial Committee of the Privy Council.
For the governor general to have acted, however, he would have had to be informed of the decision taken by the Court of Appeal. Information of this sort to the governor general is usually the responsibility of the registrar of the Court of Appeal.
Usually the governor general gets the information and then he would refer the matter to his Privy Council for a recommendation as to whether the convicted person should face the gallows or not.
The Pratt and Morgan case was fraught with further unexplained procedural bungling. The Court of Appeal, after agreeing that the appellants should be hanged, said on December 5, 1980, that it would hand down their reasons later. This took nearly three years.
Didn't take kindly to delay
Lord Griffith and the other law lords did not take kindly to this administrative judicial delay exhibited by the judges of the Court of Appeal who had the responsibility to put their decision in writing.
According to Lord Griffith, "This was a serious oversight by the judge and by those in the office of the Court of Appeal who should have reminded him that reasons had not been provided in accordance with the practice of the Court of Appeal, which is to provide a reserved judgment or reasons within three months of a hearing".
The law lords further argued that Section 90 (1) and (2) of the Jamaican Constitution should be construed as imposing a duty on the governor general to refer the case, after it was discussed by the Court of Appeal, to the Jamaica Privy Council (JPC) and for the JPC to give its advice as quickly as possible.
Should refer case to JPC
Lord Griffith further pointed out that "in the ordinary course of events, the governor general should refer a capital case to the JPC immediately after the appeal is dismissed by the Court of Appeal unless there exist some special circumstances."
This meant that the then governor general, upon receiving the decision of the case from the Court of Appeal, should have then referred the matter, as quickly as possible thereafter, to the JPC for a decision.
"On May 12, 1981 executions were resumed. The JPC must have considered and advised on the 12th May 1981 execution … and it is difficult to see why at about that time they should not have considered and advised upon the appellant's case," said Lord Griffith in the Pratt and Morgan judgment.
In a stinging criticism of the former governor general and the then members of the JPC, Lord Griffith, on behalf of the Judicial Committee of the Privy Council, pointed out, "If the case had been considered by the JPC at that time and an execution date had been fixed, Their Lordships have little doubt that this would have galvanised the appellants and their legal advisers into pursuing their application for leave to appeal to the Judicial Committee of the Privy Council."
MUST ACT DECISIVELY
The failure of the former governor general and the members of his Privy Council to act decisively and expeditiously on this matter, among other factors, allowed the appellants and their counsel to take a longer period of time than necessary to exhaust all the appellate possibilities.
The former governor general's inaction, coupled with other factors, dragged out the issue for 14 years, resulting in the findings of the Judicial Committee of the Privy Council's decision "that to execute Earl Pratt and Ivan Morgan, after holding them in custody for over 14 years since the date of their conviction, would be inhuman punishment and a violation of the constitutional rights guaranteed by Section 17 (1) of the Jamaica Constitution".
Delano Franklyn is an attorney-at-law and a former government senator.
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