OCHO RIOS, St Ann - The rulings of the United Kingdom-based Privy Council with respect to the administration of the death penalty in Jamaica constitutes an issue that begs for clarity, according to Dr Stephen Vasciannie of the University of the West Indies, Mona.

"Some members of the Privy Council are against the death penalty. It has reached the point where you might get the result depending on the panel before which you go...," Professor Vasciannie declared in a speech to the conference of the American/Caribbean Law Initiative in Ocho Rios on Friday.

"If you read these judgments, you will see that there are four judges, I think, who will always find something is wrong with the local law and there are five or six who might go the other way depending on the wording," he said.
"I don't think this is the way to administer a justice system. I think it might ultimately lead to unfairness to some of the people. So, I think we need to clarify this death penalty business once and for all in Jamaica."

Vasciannie indicated that the need for clarity on the issue was made even more stark by the latest ruling of the final court with respect to the Lambert Watson case.
Watson was convicted of the 1997 murders in Hanover of his common-law wife, Eugenie Samuels and their daughter, Georgina. The July 7 ruling of the court, consisting of a nine-member panel, arose from the appeal he filed and indicated that while the death penalty was not prohibited in Jamaica, it was nonetheless unconstitutional for individuals convicted of capital murder to be automatically sentenced to death.

"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."

Vasciannie is arguing that leaving the award of the death penalty to the discretion of individual judges is potentially problematic since the practice could lead to some amount of imbalance within the justice system.
"Under the mandatory sentencing procedure, you know once you fall in the category (of capital murder) you shall be executed regardless of whether you come before judge A, B or C," he said. "Under the discretionary system, you have some judges who will never have somebody executed because they are philosophically opposed to the death penalty."

He added: "And then you have some (judges) you used to call them hanging judges and as we say at home, 'yuh corner dark'... And then judges might be influenced by the social circumstances. A judge in Hanover might very well say, 'we don't have that many murders, we don't have to have that many executions', versus a judge in Kingston and St Andrew where when you look outside every night, you wonder how many people get killed. You might have a certain variability, which might result in arbitrariness under the optional system. So the judgment is valuable but it has that problem..."

Vasciannie also pointed to the irony that it was Jamaica's move, in 1992, to differentiate between capital and non-capital murder that had provided the Privy Council with leverage to rule that the automatic death penalty for certain categories of murder were unconstitutional, while in similar cases from Barbados and Trinidad & Tobago it was held to be legal.
"Think about the irony of the results. The country (Jamaica) that goes halfway down the road to liberalise their death penalty law gets 'you lose', whereas the ones (Barbados and Trinidad) that stand with their hands in their pocket and do nothing, get 'you win'," Vasciannie remarked.

"It means that if you commit murder in Barbados and Trinidad, mandatory death penalty awaits you. If you do it in Jamaica or the Eastern Caribbean, other than Barbados, discretionary sentencing awaits you. So if one is inclined to pick and choose one's venue for murder, one should know the facts," he added, eliciting laughter from conference participants.
Vasciannie also raised concerns about the prudence of having UK-based Privy Council judges rule in such matters, in view of their ignorance of the cultural make-up of the island.

"A man commits murder in Jamaica in 1997, why is this matter being heard by judges in England - the vast majority of whom have never been to the Caribbean, much less Hanover. By what line of reasoning can we say this is the right way to conduct an appellate system?" Vasciannie asked.
"What is it they know about life, about the human condition, about social and cultural circumstances? What is it they know that our judges don't know? Because that is what it boils down to... There is one Jamaican judge who was invited to sit in the case, so I suppose he may have told them about the conditions in Hanover. We don't know. But, you see the distance and you wonder what is going on," he added, triggering more laughter.

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