MONDAY’S ruling by the Privy Council that Trinidad and Tobago’s mandatory death penalty is constitutional and can only be made otherwise by an act of that Parliament, is being viewed by two major human rights watchdog groups in Jamaica as a clear indication that the legislature here should remove the provision from its own law books.

Reacting to the ruling on Tuesday, Mickel Jackson, executive director of rights group Jamaicans for Justice (JFJ), said, “JFJ believes that the time has come for the Government to move ahead with the abolition of the death penalty. It is important that Government of Jamaica complies with its obligations to protect human rights and we urge the Ministry of Constitutional and Legal Affairs to place on its legislative agenda the removal of the death penalty”.

According to Jackson, “while Jamaica has settled the issue of the mandatory death penalty and we are perhaps guided by the principle of the ‘rarest of rare’ and ‘worse of the worst’, the very existence of the death penalty in law undermines human rights standards”.

“JFJ opposes the death penalty no matter the circumstances. Not only is it barbaric and inhumane, but we contend that when you have a flawed justice system that is under-resourced, mistakes will happen. The death penalty is irreversible and will disproportionately affect those from disadvantaged socio-economic backgrounds,” she told the Jamaica Observer.

Said Jackson, “We have heard the public calls for its resumption amid the high crime levels. However, the death penalty offers no deterrent to crime or its reduction. What is needed, however, is an evidence-based and intelligence-driven approach to crime that would tackle the issues at its root. What Jamaica needs is comprehensive justice reform that will ensure that effective and timely investigations are undertaken, and the court system is equipped to bring swift justice”.

The London-based Law Lords were asked to deliberate the constitutionality of the Republic of Trinidad and Tobago’s death penalty based on an appeal by murder convict Jay Chandler who was sentenced to death by hanging in August 2011.

In the case which was heard in November 2021, the main question raised was whether the mandatory death penalty for murder is contrary to the constitution adopted in 1976 when the State became a republic. This, on the ground that the 1976 Constitution required that the 1925 Act be modified to remove the mandatory death sentence for murder and to replace it with a discretionary death sentence. This discretion would allow the court to take account of the circumstances of the killing. In its judgement, the Privy Council considered whether the 1976 Constitution prohibits Parliament from enacting a mandatory punishment to be inflicted on all persons who commit a particular crime.

“The answer is that it does not,” the Privy Council ruled on Monday.

However, the Law Lords said,“It is striking that there remains on the statute book a provision which, as the Government accepts, is a cruel and unusual punishment because it mandates the death penalty without regard to the degree of culpability. Nonetheless, such a provision is not unconstitutional.”

Further, head of Stand Up For Jamaica’s Carla Gullotta noted that as powerful as the Privy Council is, it cannot overrule a country’s sovereign laws, while arguing that the judgement nevertheless made a powerful statement.

“It is not in the hands of the Privy Council, but it remains a fact that the principle of keeping the death penalty is wrong. All the examples we are looking at in the world do not show that countries have benefitted from the death penalty at all and the tendency is to abolish it. Every year there are more countries that abolish it.

“I think it would be a significant step moving forward in the defence of human rights in general, but I think there is a strong resistance towards two things in Jamaica: one, the abolition of the death penalty and two, the elimination of the buggery law and both are keeping Jamaica in a position where it is privileging discrimination,” Gullotta told the Observer.

In March this year amidst concerns from the JFJ about utterances by Prime Minister Andrew Holness indicating support for the reimposition of the death penalty, Minister of Legal and Constitutional Affairs Marlene Malahoo Forte said she was of the view that its reintroduction would not be a backward step as felt in some quarters.

“I do not share the view that implementation of the death penalty would be a retrograde step,” the newly minted minister of legal and constitutional affairs, who was formerly Jamaica’s attorney general, stated. She, however, noted that her “personal view” was not to be seen as “an indication of what the Government will or will not do”.

According to Malahoo Forte, while she harbours “concern about the use of the death penalty”, she was also of the opinion that, “more than anything else I do believe that when you have penalties if you are not going to use them, get rid of them, if you have them, use them”.

Capital punishment remains in the books in Jamaica but may only apply in certain aggravated murder convictions. However, there have been no executions since 1988.

“Though challenged however, those in leadership must always ensure the rights of citizens are protected and the principles of our democracy upheld. It is for that reason that JFJ was in fact concerned last year around the hyperbolic utterances that would have been made around proposed legislation that would see the death penalty imposed for gun offences.

“We say that any imposition of the death penalty would not only be a regressive step in a maturing democracy, but one ultimately would see no reduction in crime,” Jackson argued on Wednesday.