NICHOLSON... the government will be giving serious consideration to the question of whether the law should be amended

Human rights activists welcomed yesterday's decision that abolishes automatic death penalty in Jamaica, and government conceded that the ruling by the law lords will re-open debate on the future of the death penalty, for which the Patterson administration has been firmly in favour.

"We're quite pleased with the decision," said Dr Lloyd Barnett, the constitutional lawyer who is chairman of the Independent Jamaican Council for Human Rights (ICHR).

Zacca. retired Jamaican chief justice who was part of the nine-member panel

"It establishes a principle which is consistent with our concept of human rights and fairness in the judicial system and the administration of justice," Barnett said.

In their ruling yesterday, a nine-member panel that included a retired Jamaican chief justice, Edward Zacca, did not prohibit the death penalty, but said that where people are convicted of capital murder, they must have the opportunity to attempt to persuade the court that they should not hang.

BARNETT... we're quite pleased with the decision

".It has to be recognised that section 3 (1A) of the amended (Offences Against the Person) Act remains valid to the extent that it authorises the imposition of that (death) sentence," the Privy Council said in its ruling. "It will therefore be open to the court in these cases either to impose the death sentence or to impose a lesser punishment, depending on the view it takes of the crime which the defendant committed and all the relevant circumstances.

"The judge may be asked to hear submissions, and if appropriate, evidence about these matters before he takes his decision as to what sentence should be."

The decision arose from an appeal filed by Lambert Watson who was convicted for the 1997 murder in Hanover of his common-law wife, Eugenie Samuels, and their daughter, Georgina.

But the ruling will have implications for scores of death row inmates who will now likely have an opportunity to now apply to the court for a review of their sentences.

There, however, was no immediate signal from the government on how it would proceed on this issue, although the attorney-general's department raised the prospect of legislative changes.

"The attorney-general (A J Nicholson) has indicated that the government of Jamaica naturally accepts that the Privy Council decision has binding force, and that as a result the government will be giving serious consideration to the question of whether the law should be amended..." the attorney-general's office said in a statement.

Ironically, it was Jamaica's move a dozen years ago to differentiate between capital and non-capital murder that opened the door for the Privy Council to rule that the automatic death penalty for certain categories of murder was constitutional, while, in related cases from Barbados and Trinidad & Tobago held it to be legal.

In fact, the apparent anomaly triggered minority rulings in the cases by three of the judges - Lord Nicholas of Birkenhead, Lord Bingham of Cornhill and Lord Walker of Gestingthorpe.

While they agreed with the majority that automatic death penalty was cruel and inhumane and ultra vires of the constitution, in the case of Jamaica, they arrived at that position by a different route.

The majority held that the 1992 amendment to establish capital and non-capital murder had removed from it the 'saving' section provided by section 26(8) of the constitution that laws which were in force before Jamaica's independence remained in place. The automatic death penalty was in force.

Government lawyers had argued that the amendment had not essentially changed the law for it did not create a new offence.

The majority disagreed saying that "the law which was in force immediately before the appointed day (August 6, 1962) was no longer the law. The appellant was sentenced to death under the law which was set out in the amendment contained in the 1992 Act".

The dissenters argued that the more relevant application should have been Section 4 (1) of the Jamaican (Constitution) Order in Council which required that at the time of independence existing laws "be construed with such adaptations and modifications as may be necessary to bring them in conformity with the constitution".

"One strange, and to our mind regrettable, implication of the majority decision in Matthew, Boyce and Joseph (the cases from Barbados and Trinidad & Tobago) and the present appeal is that Jamaica could have succeeded in maintaining an objectionable nineteenth century law if it had not attempted to mitigate its harshness," the dissenters said.

Yesterday's ruling was the latest in a series of rulings by the Privy Council which Caribbean governments have viewed to be ideological attacks on the death penalty, starting with the mid-1990s Pratt and Morgan ruling from Jamaica when the UK-based judges held that an inmate could not be held on death row for more than five years.

They have more recently angered governments with other cases, such as those two years ago when they upheld the claim by Patrick Reyes from Belize and Peter Hughes and Newton Spence, from St Lucia and St Vincent, respectively, that their automatic death sentences were unconstitutional. Belize has the equivalent to capital and non-capital murders but not the Eastern Caribbean states.

In another ruling, the Privy Council held that people sentenced to death and who apply for mercy must be allowed to argue their cases and have access to the information presented about them, prompting the Jamaican government to promise constitutional amendment to prevent what the government said would amount to another trial.

Barbados has amended its constitution to limit such manoeuvrings by death row inmates, and received backhanded applause for its approach from yesterday's dissenters, who felt that the majority had provided Bridgetown with a loop-hole.

"If departure from fundamental human rights is desired, that is the way it should be done," they said. "The constitution should be amended explicitly. Departure from fundamental rights entrenched in the constitution should not be carried through by misapplication of transitional saving clauses."

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