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REPORT Nš 41/00 I.
SUMMARY
1.
This Report concerns five capital punishment petitions brought against
the State of Jamaica (hereinafter "the State" or "Jamaica")
and pertain to alleged violations of one or more of Articles 1, 4, 5, 7, 8, 24
and 25 of the American Convention on Human Rights (hereinafter "the
Convention"). The petitions were presented to the Inter-American Commission
on Human Rights (hereinafter "the Commission") on behalf of six
condemned men on death row, at St. Catherine District Prison, Jamaica
(hereinafter "the victims"), by four firms of Solicitors in London,
United Kingdom (hereinafter "the Petitioners"). This report addresses
the issues of the admissibility of the petitions, pursuant to Articles 46 and 47
of the American Convention, as well as the merits of each case. 2.
The names of the Petitioners and victims in each of the five cases, the
dates on which the Commission opened files in respect of each complaint, and the
provisions of the American Convention alleged to have been violated in respect
of the six victims in each of the five cases, are as follows: Table
1
3.
The State's principal legislation governing the punishment for the crime
of murder is the Offences Against the Person Act, 1864, as amended by the
Offences Against the Person (Amendment) Act 1992 (hereinafter referred to as
"the Act"). The Act
distinguishes between categories of "capital" and
"non-capital" murder.[1]
In addition, sections 3(1) and 3(1A) of the Act prescribe the death
penalty as the only punishment for persons convicted of capital murder,[2] and for persons convicted on the same or a different
occasion of more than one non-capital murder, referred to in this Report as
"multiple non-capital murder".[3] 4.
The victims in these cases were tried, convicted and sentenced to death
by hanging for capital murder, pursuant to Article 3(1) of the Act, or for
multiple non-capital murder, pursuant to Article 3(1A) of the Act.
In Case 12.023 (Desmond McKenzie) the victim was convicted of capital
murder in the furtherance of burglary and terrorism. In Case 12.044 (Andrew
Downer and Alphonso Tracey), the victims were convicted of capital murder in the
course or furtherance of terrorism and robbery.[4]
In Case Nos. 12.107 (Carl Baker)[5]
and 12.126 (Dwight Fletcher),[6]
the victims were each convicted of three counts of non-capital murder. Finally,
in Case 12.146 (Anthony Rose), the victim was convicted of capital murder in the
course or furtherance of arson. Each
of the victims in these cases appealed to the Court of Appeal in Jamaica and
their appeals were dismissed. Subsequently,
each victim filed a petition for Special Leave to Appeal to the Judicial
Committee of the Privy Council, which dismissed their petitions.
5.
The petitioners in these cases allege that the State violated the
victims' rights under the American Convention on one or more of the following
grounds, particulars of which are provided in Part III.A of this Report: a. violations of Articles 4(1), 4(2), 4(3), 4(6), 5, 8, 24 and 25 of the
Convention, relating to the mandatory nature of the death penalty for the crime
of capital and multiple non-capital murder in Jamaica and the process for
granting amnesty, pardon or commutation of sentence in Jamaica; b.
violations of Articles 5, 7(4), 7(5), 7(6) and 8 of the Convention,
relating to delays in the victims' criminal proceedings; c.
violations of Articles 4 and 5 of the Convention, relating to the
victims' conditions of detention and the method of execution in Jamaica; d.
violations of Articles 4, 8(1) and 8(2) of the Convention, relating to
the adequacy of time and facilities for preparing the victims' legal defenses,
the adequacy of their legal representation, and the manner in which their
criminal proceedings were conducted; e.
violations of Articles 2, 8, 24 and 25 of the Convention, relating to the
unavailability of legal aid for Constitutional Motions in Jamaica; f.
violations of Articles 4(1), 4(6), 5(2) and 25 of the Convention,
relating to the validity of Jamaica's Governor General Instructions; h.
violations of Article 1(1) of the Convention with regard to the above
mentioned violations. 6.
As a procedural matter, the Commission decided to consolidate these five
cases for the purposes of this Report pursuant to Article 40(2) of the
Commission's Regulations, on the basis that the cases involve similar facts and
substantially the same issues under the Convention. 7.
The Commission had not previously made admissibility determinations
pursuant to Articles 46 and 47 of the Convention in respect of any of the cases
currently before it. After having
considered the matters, the Commission decided to declare admissible the claims
presented on behalf of the victims in their entirety in four cases: 12.023
(Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.126 (Dwight
Fletcher) and 12.146 (Anthony Rose). With respect to Case 12.107 (Carl Baker),
the Commission decided to declare admissible the claims presented on behalf of
the victim, with the exception of the violations of Articles 12(1) and 12(2) of
the Convention alleged on behalf of the victim, which the Commission declared
inadmissible pursuant to Article 47(b) of the Convention. 8.
In addition, upon consideration of the merits of the five cases that are
the subject of this Report, the Commission reached the following conclusions: a.
The State is responsible for violating the rights of the victims in Case
12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107
(Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) under Articles
4(1), 5(1), 5(2) and 8(1), in conjunction with violations of Article 1(1) of the
American Convention, by sentencing these victims to a mandatory death penalty. b.
The State is responsible for violating the rights of the victims in Case
12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107
(Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) under Article
4(6) of the Convention, in conjunction with violations of Article 1(1) of the
Convention, by failing to provide these victims with an effective right to apply
for amnesty, pardon or commutation of sentence. c.
The State is responsible for violating the rights of the victims in Case
12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107
(Carl Baker), and 12.126 (Dwight Fletcher) under Articles 7(5) and 8(1) of the
Convention, in conjunction with violations of Article 1(1) of the Convention, by
reason of the delays in trying the victims. d.
The State is responsible for violating the rights of the victims in Case
12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey) and
12.126 (Dwight Fletcher) under Article 7(5) of the Convention, in
conjunction with violations of Article 1(1) of the Convention, by failing to
bring the victims promptly before a judge following their arrests; e.
The State is responsible for violating the rights of the victims in Case.
12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107
(Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) under Articles
5(1) and 5(2) of the Convention, in conjunction with violations of Article 1(1)
of the Convention, by reason of these victims' conditions of detention. f.
The State is responsible for violating the rights of the victim in Case
12.126 (Dwight Fletcher) under Article 5(4) of the Convention, in conjunction
with a violation of Article 1(1) of the Convention, by detaining the victim with
convicted persons prior to his trial and conviction. g.
The State is responsible for violating the rights of the victim in Case
12.023 (Desmond McKenzie) under Article 5(6) of the Convention, in conjunction
with a violation of Article 1(1) of the Convention, by depriving the victim of
opportunities for reform and social readaptation. h.
The State is responsible for violating the rights of the victims in Case
12.023 (Desmond McKenzie) and 12.126 (Dwight Fletcher) under Articles 8(2)(d)
and 8(2)(e) in conjunction with violations of Article 1(1) of the Convention, by
denying the victims legal counsel during various stages of their criminal
proceedings. i.
The State is responsible for violating the rights of the victims in Case
12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107
(Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) under Articles
8 and 25 of the Convention, in conjunction with violations of Article 1(1) of
the Convention, by failing to make legal aid available to these victims to
pursue Constitutional Motions. II.
PROCEEDINGS BEFORE THE COMMISSION
A.
Petitions and observations
9.
The Commission opened the cases that are the subject of this Report on
various dates between June of 1998 and May 1999, as set out in the previous
Table 1, and transmitted the pertinent parts of the petitions to the State, with
responses requested within 90 days. The materials filed in support of certain of
the petitions included: transcripts from the victims’ criminal proceedings
before the Courts in Jamaica; judgments of the Jamaican Court of Appeal
dismissing the victims’ appeals from their convictions; petitions filed by the
victims for Special Leave to Appeal to the Judicial Committee of the Privy
Council; affidavits and questionnaires prepared by certain victims concerning
the conditions of their detention and the circumstances of their criminal
proceedings; and reports from various governmental and non-governmental
organizations concerning prison conditions in Jamaica. The supporting materials
pertaining to particular allegations raised by each victim are identified and
discussed in the substance of this Report. 10.
The particulars of the initial processing of each of the cases are set
out in Table 2 below: Table
2
11.
As the above Table 2 indicates, the Commission received responses to the
original petitions from the State in each of the five Cases. The pertinent parts of the State's responses were transmitted
to the Petitioners, with observations and responses requested within 30 days.
In all of the cases, the Petitioners delivered observations on the
State's responses, the pertinent parts of which the Commission subsequently
transmitted to the State, with responses requested within 30 days.
In each of the five cases, the State delivered replies to the
Petitioners' observations, the pertinent parts of which were transmitted to the
Petitioners, with a response requested within 30 days.
12.
Furthermore, in four of the five cases, Case Nos. 12.023 (Desmond
McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker) and
12.126 (Dwight Fletcher), the Petitioners delivered "supplementary"
written submissions to the Commission, which the Commission subsequently
transmitted to the State with a response requested within a period of 30 days.
In each of these cases, Case Nos. 12.023 (Desmond McKenzie), [7]
12.044 (Andrew Downer and Alphonso Tracey),[8]
12.107 (Carl Baker)[9] and 12.126 (Dwight Fletcher),[10]
the State delivered a response to each of the "supplementary" written
submissions, and those responses were transmitted to the Petitioners. The
Commission received several additional observations and responses from both
parties in the four cases mentioned above, each of which were transmitted to the
opposing party with a response requested within a specified period. This
included a communication from the State dated November 18, 1999 in Case 12.107
(Carl Baker), in which the State provided the Commission with the results of its
investigation into alleged violations of Articles 5(1) and 5(2) of the
Convention contained in the Petitioners' supplemental submission dated July 14,
1999. 13.
During its 102nd Period of Sessions at its Headquarters in
Washington, D.C., the Commission scheduled an oral hearing on March 1, 1999, in
Case 12.023 (Desmond McKenzie). The victim's representatives attended the
hearing and made submissions to the Commission.
The State did not attend the hearing, but rather informed the Commission
by letter dated February 19, 1999, that the State would not participate because
it was "of the view that there are no outstanding issues that would
necessitate the scheduling of such hearings." B.
Precautionary Measures
14.
Contemporaneously with the transmission of the pertinent parts of the
petitions in each of the five cases, Case 12.023 (Desmond McKenzie), 12.044
(Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker), 12.126 (Dwight
Fletcher) and 12.146 (Anthony Rose), the Commission requested pursuant to
Article 29(2) of its Regulations that the State stay the execution of the
victims pending investigation by the Commission of the alleged facts. C. Friendly
Settlement 15.
By communications dated September 20, 1999 to the Petitioners and to the
State, the Commission placed itself at the disposal of the parties in these five
cases, with a view to reaching friendly settlements pursuant to Article 48(1)(f)
of the Convention on the basis of respect for the human rights recognized
therein. The Commission also
requested that the parties provide the Commission with a response to the
Commission's offers within 7 days of receipt of the communication, in default of
which the Commission would continue with consideration of these matters. 16.
In a communication dated September 24, 1999, the State informed the
Commission that it had begun the process of consultation concerning the
possibility of friendly settlement regarding each of the five cases, and that
the Commission would be advised of its response within a week. 17.
In a letter dated September 24, 1999, the Petitioners in Case Nos. 12.044
(Andrew Downer and Alphonso Tracey) and 12.146 (Anthony Rose) informed the
Commission as follows: For
the reason set out in the written petition and further submissions transmitted
to the Commission, the Applicants would ask the Commission to recommend that
their sentences of death be commuted forthwith, so that they can be removed from
the death row regime in the prison. On the basis of respect for the human
rights recognized in the [Convention], and the allegation that the Applicants'
executions would now violate Articles 4, 5, 8 and 24 of the [Convention], the
commutation of Messrs. Downer, Tracey and Rose's sentences of death is the only
appropriate way of reaching a friendly settlement in this matter. Should
the State Party undertake to commute the Applicants' sentences of death, the
Applicant would consider that a friendly settlement pursuant to Article 48(1)(f)
of the Convention has been reached. 18.
Additionally, in a letter dated September 27, 1999, the Petitioners in
Case 12.126 (Dwight Fletcher) indicated that they welcomed the Commission's
offer to hold a friendly settlement meeting, and looked forward to receiving
details of the proposed meeting. 19.
By communication dated September 28, 1999, the Commission transmitted the
pertinent parts of the Petitioners' responses in these cases to the State, with
a response requested within 7 days. 20.
By letter dated October 7, 1999, the State informed the Commission that
the Petitioners' responses to the Commission's friendly settlement offers in two
of the cases "make it clear that there is no common ground for the success
of a friendly settlements [sic] procedure." Accordingly, the State
indicated that it looked forward to an "early conclusion of [the
Commission's] deliberations on these five (5) cases, in accordance with Article
50 of the Inter-American Convention on Human Rights". D. Jamaican
Governor General's instructions 21. The Commission wishes to note that in each of the cases that are the subject of this Report, the Petitioners allege violations of Articles 4, 5 and 25 of the Convention and the Commission’s Regulations in relation to the "Instructions for dealing with applications from or on behalf of prisoners under sentence of death to the United Nations Human Rights Committee or the Inter-American Commission on Human Rights", issued by Jamaica's Governor General (hereinafter referred to as the "Governor General's Instructions").[11] The Governor General's Instructions designated limits on the time period during which a prisoner was permitted to petition the Inter-American Commission on Human Rights and the United Nations Human Rights Committee.[12] The Instructions also placed time limits on when the Governor General was required to receive the prisoner's petition and a request for stay of execution.[13] Additionally, the Governor General's Instructions purported to prescribe a period of six months for the Commission and the Committee to investigate and rule on the prisoner's petition, and for the Governor General to advise the Jamaican Privy Council on the outcome of the petition.[14] 22.
On July 5, 1999, several Petitioners informed the Commission that the
Jamaican Court of Appeal had issued a decision on June 15, 1999, with respect to
the lawfulness of Jamaica's Governor General’s Instructions.[15]
In Neville Lewis v. Attorney
General for Jamaica et al. (hereinafter referred to as "Neville
Lewis"), the Jamaican Court of Appeal determined that the Governor
General’s Instructions were unlawful as a matter of Jamaica's domestic law.
On page 11 of its decision the Court of Appeal declared that: …even though the recommendations of the
[Inter-American] Commission are not binding on the Governor General in the
exercise of the Prerogative of Mercy, given the terms of the treaty which the
government ratified, the Privy Council ought to await the result of the
petition, so as to be able to give it consideration in determining whether to
exercise the Prerogative of Mercy. Subsequently,
on page 18 of its decision, the Court of Appeal found that "…to issue
Instructions calling upon the [Inter-American] Commission to complete its
process in 6 months or about 180 days, is in my view disproportionate, and
consequently unlawful." 23.
In its submission to the Commission concerning Case 12.044 (Andrew Downer
and Alfonso Tracey), the State acknowledged the Court of Appeal's decision in Neville
Lewis and indicated that: the
law in Jamaica is that the 1997 Governor General's Instructions are unlawful.
The applicants therefore, could not be executed pursuant to those Instructions,
unless the Instructions were amended or if the Privy Council were to overrule
the Lewis decision.[16]
24.
As the Instructions in their
current form do not have any legal effect in Jamaica, and as they do not affect
the cases currently under consideration by the Commission, the Commission does
not consider it necessary to address the submissions of the Petitioners or the
State concerning the validity of the Instructions under the Convention and the
Commission's Regulations. III.
POSITIONS OF THE PARTIES
A.
Positions of the petitioners
1. Background to
the cases 25.
The following Table 3 summarizes the domestic criminal proceedings of the
victims in the five cases before the Commission: Table
3
26.
The pertinent background facts of these five cases, together with the
categories of violations of the Convention raised in each case, are outlined
below. Desmond
McKenzie (Case 12.023) 27.
Desmond McKenzie was arrested and charged with the murder of the
deceased, Fitzroy Dawson, on October 19, 1993.
Mr. McKenzie was originally tried from April 22, 1995 to May 4, 1995,
however, the jury was unable to reach a majority decision.
A re-trial was held beginning March 13, 1996, and on April 2, 1996, Mr.
McKenzie was convicted of capital murder in the furtherance of burglary and
terrorism and sentenced to death. Mr.
McKenzie subsequently appealed his conviction to the Court of Appeal, and his
appeal was dismissed on October 13, 1997. He
then petitioned the Judicial Committee of the Privy Council, and the Privy
Council dismissed his petition on June 25, 1998. 28.
The prosecution alleged that Mr. McKenzie was responsible for breaking
and entering into the home of the deceased, Fitzroy Dawson, and his wife, Levina
Miller, and causing the deceased's death during the evening of October 18, 1993.
Mr. McKenzie was alleged to have visited the home of Ms. Miller and the deceased
on the day of the murder, where Mr. McKenzie and the deceased argued and the
deceased insulted Mr. McKenzie. Mr. McKenzie left, but returned to the home
later the same evening, broke into the house, and shot the deceased. He then
threw the deceased's body into the river. 29.
In his defense, Mr. McKenzie claimed that he was driving home on the
evening of the offense when a woman with a baby waved him down. When he stopped, two men ran out of a house, one with a
bottle and the other with a machete. The
victim was hit with the bottle, fired two shots in self defense, and one of the
men stumbled into the river. During his re-trial, Mr. McKenzie gave evidence
concerning his good character. He testified that he owned a supermarket and
managed a clothing business, his father's farm and a warehouse business. He also
claimed to have promoted community youth projects, assisted the elderly and
local schools, and had standing as a local politician. The victim had no
previous criminal record. A teacher, who was also a justice of the peace, was
present at the re-trial to give character evidence on the victim's behalf. 30.
The violations of the Convention alleged on behalf of Mr. McKenzie can be
categorized as follows: 1) violations of Articles 4(3), 4(6), 5(1) and 24
relating to the mandatory nature of the death penalty under the Offences
Against the Person Act and the process for granting of amnesty, pardon or
commutation of sentence in Jamaica; 2) violations of Articles 4 and 5 relating
to the victim's conditions of detention and his time in detention; 3) violations
of Articles 7(5) and 7(6) relating to delays in the victim's criminal
proceedings; 4) violations of Articles 8(1) and 8(2) relating to the trial
judge's lack of impartiality and the inadequacy of the victim's legal
representation; and 5) violation of Article 25 relating to the unavailability of
legal aid for Constitutional Motions in Jamaica. Andrew Downer and
Alphonso Tracey (Case 12.044) 31.
Mr. Downer and Mr. Tracey were charged with the March 4, 1991 murder of
Kenneth McNeil. Mr. Downer was
arrested on April 30, 1991, and Mr. Tracey was arrested May 4, 1991. Their joint
trial commenced December 14, 1994, and they were convicted of murder in the
course or furtherance of terrorism and robbery on December 21, 1994, and
sentenced to death. The victims
subsequently appealed their convictions to the Court of Appeal of Jamaica, and
their appeals were dismissed on May 27, 1996. The victims then petitioned the
Judicial Committee of the Privy Council on October 18, 1996. The victims were granted leave to appeal, however, the Privy
Council dismissed their appeals on July 20, 1998. 32.
The prosecution alleged that on March 4, 1991, the deceased, Kenneth
McNeil, was working as a security guard with his co-worker Christian Riley. Mr.
McNeil and Mr. Riley were collecting computer papers from bank safe deposit
boxes when they noticed a car with four men pull alongside their van. The men in
the car began to shoot at Mr. McNeil and Mr. Riley. Mr. McNeil and Mr. Riley
returned fire, and Mr. Riley was shot in the shoulder. Mr. Riley then ran for
cover and was shot twice in the back. Looking back from where he was lying, Mr.
Riley saw two men exiting the car, approach Mr. McNeil and "sandwich"
him on the sidewalk. Mr. Riley saw
one man point a gun at Mr. McNeil and heard shots, and then heard the car drive
off. Mr. Riley was not certain
whether one or both of the men shot Mr. McNeil. Three months after the incident,
Mr. Riley identified the victims in an identification parade as the two men he
saw exiting the car. Mr. Riley was the prosecution's principal witness at the
victims' trial. 33.
In their defense, the victims made unsworn statements from the dock. Mr.
Tracey alleged that he was at a hotel on the night of the murder. He also
alleged that his identification at the identification parade in June 1991 was
unfair and that he was innocent. Mr. Downer alleged he was held up by a gunman
and shot during an attempted robbery on the night of the murder. He denied any
involvement in the crime. 34.
The violations of the Convention alleged on behalf of Mr. Downer and Mr.
Tracey can be categorized as follows: 1) violations of Articles 4(2) and 4(6)
relating to the mandatory nature of the death penalty under the Offences Against the Person Act and the process for granting
amnesty, pardon or commutation of sentence in Jamaica; 2) violations of Article
5 relating to the victims' conditions of detention; 3) violations of Articles
7(5) and 8(1) relating to the failure to bring the victims promptly before a
judge and to try the victims within a reasonable time; 4) violations of Articles
4(1) and 8 relating to the fairness of the victims' trial; and 5) violations of
Articles 2 and 25 relating to the unavailability of legal aid for Constitutional
Motions in Jamaica. Carl Baker (Case
12.107) 35.
Mr. Baker was charged with the August 1995 murder of his wife, Ena, their
2 1/2-year-old daughter Lacy, and their 1-year-old daughter Renee. Mr. Baker was
arrested on August 11, 1995. Mr.
Baker's trial commenced on November 25, 1996, and he was convicted of three
counts of non-capital murder on
November 27, 1996 and sentenced to death. Mr.
Baker subsequently appealed his conviction to the Jamaican Court of Appeal, and
his appeal was dismissed on February 26, 1998.
Mr. Baker then petitioned for Special Leave to Appeal to the Judicial
Committee of the Privy Council, and the Privy Council dismissed his petition on
January 20, 1999. 36.
On the morning of August 10, 1995, Mr. Baker's home was discovered burned
to the ground with the deceased members of his family inside.
The prosecution alleged that Mr. Baker hit his wife with an axe and left
her unconscious. They also alleged that a fire started in the house, and that
the victim left his home without trying to save his family from the fire. An axe
traced with blood was found between the house and the family's chicken coop, and
the victim's belongings, including a television and gas burner, were found
inside of the chicken coop. The prosecution claimed that Mr. Baker could have
attempted to save his family, for example by shouting to neighbors for help or
by using water from containers close to their house to extinguish the fire.
Instead, according to the prosecution the victim ran to the home of his friend,
Edward Morgan, who lived a mile from Mr. Baker's home. Mr. Baker also gave Mr.
Morgan an attaché containing some of his belongings. The prosecution argued
that this evidence was consistent with the victim having deliberately set fire
to his house with the intent to kill all inside. 37.
In a cautioned statement and at trial, Mr. Baker maintained that he had
several quarrels with his wife on the night of the fire, which culminated in his
wife stabbing him in the hand twice with a screwdriver. The victim claims to
have then grabbed an axe from under the table and hit his wife on the head in
self defense. He also claimed that as he brought the axe down he knocked the
kerosene lamp off the table, which set the house on fire. He became frightened,
climbed out of the window, and ran to Edward Morgan's home, after which he
reported the incident to the police. He
also stated that he had removed his belongings from the house because he
intended to leave his family, and that he had left his attaché with Mr. Morgan
on his way home from church the previous Sunday. He maintained that the fire was
not deliberate, and that he loved his family. 38.
The violations of the Convention alleged on behalf of Mr. Baker can be
categorized as follows: 1) violations of Articles 4(1), 4(3), 4(6), 5, and 24
relating to the mandatory nature of the death penalty under the Offences Against the Person Act and the process for granting
amnesty, pardon or commutation of sentence in Jamaica;
2) violations of Articles 4 and 5 relating to the victim's conditions of
detention; 3) violations of Articles 5, 8(1) and 8(2) relating to the fairness
of the victim's trial and the inadequate time and means for preparing the
victim's defense; 4) a violation of Article 12 with regard to freedom of
conscience and religion; 5) violations of Articles 8 and 25(1) relating to the absence of legal
aid for Constitutional Motions in Jamaica; and 6) a violation of Article 1(1)
relating to the above violations of the American Convention.
Dwight Fletcher (Case
12.126) 39.
Mr. Fletcher was charged together with his co-defendants Whyett Gordon
and Edwy Watson (now deceased) with the October 23, 1993 murders of Rajhni
Williams, Georgia Shaw and Racquel Fearon.
He was arrested on November 21, 1993 and was tried in August of 1996. On
August 21, 1996 he was convicted on three counts of capital murder and sentenced
to death. Mr. Fletcher subsequently
appealed his conviction to the Jamaican Court of Appeal on May 8, 1998, where he
was found guilty on three counts of non-capital murder, and his death sentence
was maintained in accordance with 3(1A) and 3B(3) of the Offences Against the Person Act.
Mr. Fletcher then petitioned the Judicial Committee of the Privy Council
on October 9, 1998, and the Privy Council dismissed his petition on January 21,
1999. 40.
The prosecution alleged that Mr. Fletcher and his co-defendants abducted
the deceased Rajhni Williams, Georgia Shaw and Racquel Fearon from an open air
dance on October 23, 1993. Mr. Fletcher drove the car that was used to commit
the crimes. Following the abduction, Mr. Watson shot and killed Mr. Williams.
Mr. Gordon then sexually assaulted Miss Fearon, and both women were then shot
and killed. In a statement under caution Mr. Gordon said the shooting was
carried out by Mr. Watson. The prosecution contended that Mr. Fletcher was part
of a common criminal enterprise leading to the deaths of three people. 41.
The violations of the Convention alleged on behalf of Mr. Fletcher can be
categorized as follows: 1) violations of Articles 4(1), 4(6), 5(2) and 24
relating to the mandatory nature of the death penalty under the Offences Against
the Person Act; 2) violations of
Articles 4, 5(1), 5(2) and 5(4) relating to the victim's conditions of
detention; 3) violations of
Articles 7(4), 7(5), and 8(1) relating to the failure to bring the victim
promptly before a judge and to try him within a reasonable time;
4) violations of Articles 8(1) and 8(2) relating to inadequate legal
representation and inadequate time and facilities for preparing the victim's
defense; and 5) a violation of Article 25 relating to the unavailability of
legal aid for Constitutional Motions in Jamaica. Anthony
Rose (Case 12.146) 42.
Mr. Rose was charged with the murder of Danisha Williams in the course or
furtherance of arson of a dwelling house in June of 1996. The arson occurred on
June 5, 1996 and Ms. Williams died on June 8, 1996.
Mr. Rose was arrested on January 20, 1997. His trial commenced on July 21, 1997, and on July 25, 1997 he
was convicted of murder in the course or furtherance of arson and sentenced to
death. Mr. Rose subsequently appealed his conviction to the Jamaican Court of
Appeal, and his appeal was dismissed on July 31, 1998.
Mr. Rose then petitioned the Judicial Committee of the Privy Council for
Special Leave to Appeal on February 15, 1999, and the Privy Council dismissed
his petition on April 14, 1999. 43. The deceased Danisha Williams was the daughter of Mr. Rose's maternal step-brother. The prosecution alleged that on June 5, 1996, Mr. Rose and his step-brother argued while trying to defend their mother from her husband. During the dispute, Mr. Rose drew a knife and his step-brother drew a machete, following which they went their respective ways. Later the same evening, the victim set his step-brother's home on fire. Two witnesses claimed to have seen Mr. Rose running away from his step-brother's home at the time of the fire. The deceased was asleep in the home prior to the fire, and she could not be rescued in time to save her from the fire. 44.
The victim's defense at trial was alibi. He claimed that he was at home
on the evening of the fire. He also relied upon the evidence of one witness,
Livina James, who was present at the scene and claimed that she did not see any
one running from the house at the time of the fire. In addition, the victim maintained that he did not own the
clothes that the witnesses claim were worn by the person seen running from the
scene. 45.
The violations of the Convention alleged on behalf of Mr. Rose can be
categorized as follows: 1) violations
of Articles 4(1), 4(2), 4(6) and 5(2) relating to the mandatory nature of the
death penalty under the Offences Against
the Person Act and the process for granting amnesty, pardon or commutation
of sentence in Jamaica; 2)
violations of Articles 5(1) and 5(2) relating to the victim's treatment and
conditions during detention and the method of execution in Jamaica;
3) violations of Articles 4(2), 8(2)(c) and 8(2)(e) relating to the
inadequacy of the victim's legal representation and of the time and facilities
for preparing the victim's defense; and 4) violations of Articles 24 and 25
relating to the unavailability of legal aid for Constitutional Motions in
Jamaica. 2. Positions of
the petitioners on admissibility 46.
In each of the five cases before the Commission, the Petitioners have
submitted that their petitions are admissible in accordance with Articles 46 and
47 of the American Convention, based upon several grounds. 47.
The petitioners in all five cases have submitted that the victims have
exhausted all available and effective domestic remedies, because the victims
have unsuccessfully appealed their convictions to the Jamaican Court of Appeal,
and to the Judicial Committee of the Privy Council, the highest appellate body
in Jamaica. The particular dates
and decisions of the appeals sought by each victim are set out in Part III.A.1
of this Report. 48.
In addition, the Petitioners in all five cases have indicated that the
victims in those cases have not pursued Constitutional Motions in the domestic
courts of Jamaica, because such a motion does not constitute an available and
effective remedy within the meaning of Article 46(1)(a) of the American
Convention.[20]
The petitioners claim that a Constitutional Motion provided for by
section 25(1) of the Constitution of Jamaica has effectively been denied to
these victims because of the high cost and procedural complexity of instituting
such a motion. Furthermore, the Petitioners indicate that no legal aid is
available for such a motion and that the legal costs involved are well beyond
the victims' means. They also claim it is extremely difficult to find a Jamaican
lawyer to take Constitutional Motions pro bono. Moreover, the
Petitioners indicate that even if some attorneys were willing to take a case pro
bono, it is not sufficient reason for and does not justify the State's
failure to provide prisoners with legal aid to present a Constitutional Motion.[21]
The petitioners rely upon decisions of the United Nations Human Rights
Committee, in which the Committee has rejected the State's argument that
Constitutional Motions must be pursued in order to exhaust domestic remedies.[22] 49.
Furthermore, the Petitioners in Case 12.146 (Anthony Rose) claim that,
even if victims had the funds to pursue Constitutional Motions in the domestic
courts of Jamaica, the issue of the mandatory nature of the death penalty in
Jamaica could not in any event be raised by way of a Constitutional Motion, as
such challenges are barred under the Constitution of Jamaica. The petitioners
claim in this regard that Articles 17(2) and 26(8) of the Constitution of
Jamaica[23]
prohibit challenges to forms of punishment that pre-dated independence, which
include the mandatory death penalty.[24] 50.
In each of the five cases in this Report, the Petitioners have also
indicated that the victims' cases have not been submitted for examination by any
other procedure of international investigation or settlement. 3. Positions of
the petitioners on the merits a. Articles 4, 5, 8, 24 and 25 - mandatory nature of the death penalty and the prerogative of mercy i.
Mandatory nature of the death penalty 51.
All five of the petitions that are the subject of this Report allege that
the State acted contrary to one or more of Articles 4(1), 4(2), 4(3), 4(6),
5(1), 5(2), 5(4), 8(1), 8(2), 24 and 25 of the American Convention by sentencing
the victims to a mandatory death penalty, for the crime of capital murder or for
committing more than one non-capital murder. In particular, the Petitioners
argue that although the death penalty is only imposed in capital murder and
multiple non-capital murder cases, the distinction between these categories of
murder fail to allow for considerations of the particular circumstances of each
offense and offender, including relevant aspects of the character and record of
each convicted defendant. The petitioners therefore argue that the mandatory
death penalty is cruel, inhumane and degrading, is an arbitrary and
disproportionate punishment and violates the right to a fair trial. Certain
petitioners have also argued that the process for granting amnesty, pardon or
commutation of the sentence in Jamaica does not remedy these violations, and in
itself violates Article 4(6) of the Convention. 52.
In support of their position that the mandatory death penalty for capital
and multiple non-capital murder contravenes the American Convention, the
Petitioners refer to decisions of the highest courts of several common law
countries, including the United States of America,[25]
the Republic of South Africa[26]
and India,[27] where the death penalty has, at least until recently,
been retained. According to the
Petitioners, these authorities support the proposition that States that wish to
retain the death penalty must distinguish between capital and non-capital
murder. States must also provide for some form of "individualized
sentencing", where victims are permitted to present mitigating factors
concerning the particular circumstances of the case and the personal
characteristics of the offender in determining whether the death penalty is an
appropriate punishment. 53.
The petitioners therefore argue that the mandatory death penalty for
capital and multiple non-capital murder in Jamaica interferes with the victims'
right to life by imposing a sentence of death automatically and irrespective of
the circumstances, and therefore violates Articles 4(1) and 4(6) of the
Convention. 54.
Also in relation to Article 4, the Petitioners in Case 12.146 (Anthony
Rose) argue that the requirement under Article 4(2) of the Convention that the
death penalty be imposed only for the most "serious offenses" should
be interpreted so as to encompass more than the elements of a criminal offense,
and in particular should be interpreted to require consideration of all factors
of a criminal offense, including those referable to an individual applicant.
55.
Each of the Petitioners who takes issue with the mandatory death penalty
also claims that the mandatory death penalty violates the right to humane
treatment under Article 5 of the Convention. They argue that, because of the
wide variety of circumstances in which capital or multiple non-capital murder
may be committed, the mandatory death penalty fails to retain a proportionate
relationship between the circumstances of the actual crime, the offender and the
punishment. In this regard, they
submit that the manner in which the death penalty is carried out can be
determined to be cruel, inhuman or degrading on the basis that it is arbitrary
and disproportionate, even if the death penalty itself is not unlawful. They
also contend that it is cruel to impose the death penalty where there is no
mechanism to take into account the particular circumstances and characteristics
of the offender. 56.
The petitioners in several cases, including Case Nos. 12.023 (Desmond
McKenzie), 12.044 (Andrew Downer and Alphonso Tracey) and 12.146 (Anthony Rose),
argue further, that the absence of an opportunity for the victims to present
mitigating evidence and make representations to the trial judges concerning the
appropriateness of the death penalty in the circumstances of their cases
contravened their rights to due process of law under Article 8 of the American
Convention. They submit that, to the extent that the consideration of individual
factors is a necessary component of the proper application of the death penalty,
it follows that the right of the victims to make submissions is also a necessary
component of the process, as there is no other proper way for the court to
obtain the relevant information. The
victims therefore contend that individualized sentencing forms part of the due
process required in adjudicating offenses that may result in the death penalty. 57.
In each of the five cases before the Commission, the Petitioners also
argue that the mandatory nature of the death penalty violates Article 24 of the
Convention. They claim that the mandatory death penalty deprives offenders of
equality before the law, as offenders are not permitted to bring mitigating
circumstances into consideration in order to differentiate their cases from
those of others likely to face the death penalty. In this respect, the
Petitioners claim that there is no accommodation for consistency in like and
unlike cases, and therefore that the death penalty is applied in an arbitrary,
and therefore inequitable, manner. In addition, the Petitioners maintain that
although the mandatory nature of the death penalty presents a form of equality
by treating all capital murders the same, it has the effect of imposing a
uniform sentence for unequal offenses, and thereby creates substantive
inequality between offenders. 58.
In connection with the alleged violations of Articles 4, 5, 8 and 24 of
the Convention relating to the mandatory death penalty, certain of the
Petitioners have also identified specific mitigating factors in the
circumstances of those victims' cases, which they claim should have been taken
into account in determining whether the death penalty was an appropriate
punishment in the circumstances of their cases. For example, in Case 12.023
(Desmond McKenzie), the Petitioners refer to evidence on the record relating to
the victim's good character, namely that he was the owner of a supermarket, and
managed a clothing business, as well as his father's farm and a warehouse. He
had no previous convictions, promoted community youth projects and assisted at
local schools and with the elderly. The victim also had standing as a local
politician, and had the support of a character witness who was a teacher and a
justice of the peace. Moreover, the Petitioners claim that the victim committed
his crime as revenge for earlier insults from the deceased. While the jury may
not have been satisfied that this fulfilled the requirements of the legal
defense of provocation, the Petitioners argue that it was a relevant
circumstance that should have been taken into account in the context of
sentencing. 59.
Finally, the Petitioners in Case Nos. 12.023 (Desmond McKenzie) and
12.107 (Carl Baker) argue that the victims' executions would violate Article
4(3) of the Convention, on the basis that there has been a moratorium on
executions in Jamaica since 1988. The petitioners claim that this circumstance
has given rise to an expectation on the part of death row prisoners that they
will not in fact be executed. Moreover, the Petitioners claim that if the
victims' executions were carried out after a moratorium of over 10 years, this
in effect constitutes a reestablishment of the death penalty after if has been
abolished, contrary to Article 4(3) of the Convention.
ii.
Prerogative of mercy 60.
The petitioners submit that, insofar as the rigors of the death penalty
are mitigated by the power of pardon and commutation by the Jamaican Privy
Council under Articles 90 and 91 of the Constitution of Jamaica, there are no
criteria governing the exercise of the executive's discretion.[28]
They also claim that there is no information as to whether the power is
exercised on an accurate account of admissible evidence as to facts relating to
the circumstances of an offense, and that there is no opportunity for a
defendant to make oral or written representations as to whether the death
sentence should be carried out. The petitioners also cite the decision of the
Judicial Committee of the Privy Council in the case Reckley v. Minister of Public Safety (Nš 2) [1996] 2 W.L.R. 281,
for the proposition that the exercise of the power of pardon involves an act of
mercy that is not the subject of legal rights and therefore is not subject to
judicial review. Consequently, the Petitioners claim that the exercise of the
Prerogative of Mercy does not provide an adequate mechanism for individualized
sentencing. 61.
Moreover, the Petitioners allege that the State has violated the victims'
rights under Article 4(6) of the
Convention, because no procedural protections are provided by the Jamaican Privy
Council when considering whether to exercise the Prerogative of Mercy in a
particular case. Cumulatively, the Petitioners contend that the process of mercy
lacks criteria governing the State's discretion with regard to the Prerogative
of Mercy since the Jamaican Privy Council meets in private, fails to provide or
publish reasons for its decisions, and does not permit prisoners to appear and
make representations. Therefore, the Petitioners argue that the State fails to
properly consider petitions for amnesty, pardon or commutation in accordance
with Article 4(6) of the Convention because there is no criteria governing the
exercise of the Governor-General's discretion, no possibility to draw attention
to particular facts of a victim's case, and no way of knowing on what basis the
discretion is ultimately exercised. The
petitioners also argue that much of the information that the Privy Council
requires to make a proper decision concerning amnesty, pardon or commutation is
in the knowledge of the offender and his or her family, but that no mechanism
exists for this information to be presented to the Privy Council. 62.
Consequently, the Petitioners submit that, in order to be fair and
effective, the process for granting amnesty, pardon or commutation of sentence
should provide the victims with the right to be notified of the period during
which the Jamaican Privy Council considers his or her case, the right to be
supplied with the materials before the Privy Council and the right to submit
materials and representations prior to the hearing. The petitioners also claim
that condemned prisoners should be afforded the right to an oral hearing before
the Privy Council, and to place before the Privy Council and to have it consider
the decisions and recommendations of international human rights bodies. 63.
The petitioners in Case Nos. 12.044 (Andrew Downer and Alphonso Tracey)
and 12.126 (Anthony Rose) also suggest that the State's process for granting the
Prerogative of Mercy violates Article 4(2) of the Convention, because it
provides no guarantee that the death penalty will be imposed only for the
"most serious crimes." In
order for there to be a reliable determination of which crimes constitute the
most serious crimes, the decision making body, in the present cases the Jamaican
Privy Council, must have before it all relevant mitigating evidence in relation
to the prisoner. Only then can the body charged with the duty of exercising
mercy make a reliable determination, and so comply with the requirements of
Article 4(2). This in turn requires full participation on the part of the
prisoner. According to the Petitioners, however, the "invariable
practice" in Jamaica is that prisoners are not informed of the date on
which their case is to be considered, and often they have no knowledge that the
Jamaican Privy Council has met until they are told that the Prerogative of Mercy
is not to be exercised in their favor. 64.
Certain of the Petitioners also argue that there are no objective
criteria to establish whether the death penalty should be imposed or carried
out, and therefore the exercise of the Prerogative of Mercy can operate in an
unequal and discriminatory fashion, contrary to Article 24 of the Convention. In
this regard, the Petitioners in Case 12.107 (Carl Baker) argue that the
Prerogative of Mercy is consistently exercised in favor of women on death row,
and therefore there is no equal protection before the law in the application of
the Prerogative of Mercy.[29] 65.
In response to the State's argument that the Jamaican Constitution
prescribes a procedure for exercising the Prerogative of Mercy, and that there
is nothing that prohibits an offender from applying for mercy, the Petitioners
contend that the process in fact does not provide for effective participation in
the process. The petitioners indicate that Jamaican procedures do not permit an
offender to present a case for mercy or to respond to adverse materials before
the Jamaican Privy Council. Consequently, the right to apply for amnesty, pardon
or commutation of sentence is theoretical and illusory. In this regard, the
Petitioners in Case 12.146 (Anthony Rose) distinguish the right to apply for
pardon in law from the right to apply
for pardon in fact, and argue that the
process in Jamaica violates Article 4(6) of the Convention because it does not
provide for an effective opportunity in fact for petitioners to present a case
for mercy. continued...
[1] Section 2(1) of the Act defines "capital murder" as including murder committed against certain persons by virtue of their employment, position or status, for example law enforcement officials and judicial officers. It also includes murder committed in the course or furtherance of certain other crimes, including robbery, burglary, housebreaking, and arson in relation to a dwelling house. Section 2(3) defines non-capital murder as murder not falling within section 2(1) of the Act. The text of these provisions is set out in Part IV.C.1.a of this Report. [2] Section 3(1) of the Act provides that "[e]very person who is convicted of capital murder shall be sentenced to death and upon every such conviction the court shall pronounce sentence of death, and the same may be carried into execution as heretofore has been the practice; and every person so convicted or sentenced pursuant to subsection (1A), shall, after sentence, be confined in some safe place within the prison, apart from all other prisoners. Where by virtue of this section a person is sentenced to death, the form of the sentence shall be to the effect only that he is to 'suffer death in the manner authorized by law.'" [3] Section 3(1A) of the Act provides that, "a person who is convicted of non-capital murder shall be sentenced to death if before that conviction he has (a) whether before or after the 14th October, 1992, been convicted in Jamaica of another murder done on a different occasion; or (b) been convicted of another murder done on the same occasion." [4] In Case 12.044 (Andrew Downer and Alphonso Tracey), the victims were originally charged with murder in the course or furtherance of an act of terrorism. The charge was amended during trial to add the charge of murder in the course or furtherance of robbery. [5] In Case 12.107 (Carl Baker), the jury originally found the victim guilty on three counts of non-capital murder and he was sentenced to life in prison. The judge subsequently re-sentenced him on the same day to the death penalty, in accordance with the provisions of the Offences Against the Person Act. [6] In Case 12.126 (Dwight Fletcher), the victim was originally convicted on three counts of capital murder and sentenced to death. On appeal, however, he was found guilty on three counts of non-capital murder. His death sentence was nevertheless sustained, in accordance with sections 3B3 and 3(1A) of the Offences Against the Person Act. Section 3(1A) of the Act provides that a conviction of non-capital murder with another murder results in a sentence of death. Section 3B3 of the Act provides that in the case of an appeal of capital murder which results in a conviction of more than one non-capital murder the court will determine whether the death sentence is warranted. [7] In Case 12.023 (Desmond McKenzie), the Commission received a response from the State on November 2, 1998, the pertinent parts of which were transmitted to the Petitioners on November 24, 1998, for a response within 30 days. The petitioners submitted a response on December 14, 1998, the pertinent parts of which were transmitted to the State on January 5, 1999, for a response within 30 days. The Commission received observations from the State on December 22, 1998, the pertinent parts of which were transmitted to the Petitioners on January 5, 1999, for a response within 30 days. The Commission continued to receive subsequent correspondence from both parties, the pertinent parts of which were transmitted for a response within a specified period. [8] In Case 12.044 (Andrew Downer and Alphonso Tracey), the Commission received a response from the State on May 3, 1999, the pertinent parts of which were transmitted to the Petitioners on May 7, 1999, for a response within 30 days. The State submitted additional information to the Commission on June 14, 1999, the pertinent parts of which were transmitted to the Petitioners on July 1, 1999, for a response within 30 days. The petitioners submitted a response to the Commission on July 5, 1999, concerning the State's June communication, the pertinent parts of which were transmitted to the State on July 21, 1999, for a response within 30 days. The petitioners also submitted a response to the Commission on August 5, 1999, concerning the State's July communication, the pertinent parts of which were transmitted to the State on August 18, 1999, for a response within 30 days. The Commission received a response from the State on August 27, 1999, the pertinent parts of which were transmitted to the Petitioner for their information on September 3, 1999. [9] In Case 12.107 (Carl Baker), the Commission received a response from the State on September 15, 1999, the pertinent parts of which were transmitted to the Petitioners on September 24, 1999. [10] In Case Dwight Fletcher (12.126), the Commission received a response from the State on September 15, 1999, the pertinent parts of which were transmitted to the Petitioners on September 24, 1999. [11] Instructions for dealing with applications from or on behalf of prisoners under sentence of death to the United Nations Human Rights Committee or the Inter-American Commission on Human Rights where the Judicial Committee of the Privy Council has refused a petition or dismissed an appeal from or on behalf of such prisoner or a petition or an appeal from or on behalf of such a prisoner to the Judicial Committee of the Privy Council has been abandoned or withdrawn, Jamaican Gazette (Extraordinary), Vol. CXX, Nš 84 (7 August 1997) (hereinafter the "Governor General's Instructions"). [12] Governor General's Instructions, Section 1 (defining "International Human Rights bodies" for the purposes of the Instructions as the United Nations Human Rights Committee and the Inter-American Commission on Human Rights). [13] Governor General's Instructions, Sections 2, 3. [14] Under Sections 4 to 10 of the Governor General's Instructions, prisoners were permitted to petition both International Human Rights Bodies, and each body was limited to six months during which it was required to advise the Governor General of the outcome of the prisoner's petition. [15] This information was provided for in the Petitioner's communication to the Commission concerning Case 12.044 (Andrew Downer and Alphonso Tracey) dated July 5, 1999. Subsequently, the Commission received a similar communication from petitioners in Case 12.146 (Anthony Rose), dated August 3, 1999, and from petitioners in Case 12.126 (Dwight Fletcher), dated August 13, 1999. [16] The Government's submission to the Commission dated August 27, 1999 in Case 12.044 (Andrew Downer and Alphonso Tracey). In its most recent submissions to the Commission dated September 15, 1999 in Case 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose), the State indicated that steps were being taken to amend the Instructions so as to bring then in conformity with the Neville Lewis’ decision. The Commission has not, however, been informed as to when any such amendments may be adopted or what effect, if any, such amended Instructions might be purported to have on the cases currently before the Commission. [17] In Case 12.023, Mr. McKenzie was tried from April 22, 1995 to May 4, 1995, however, the jury was unable to reach a majority decision. A retrial was held beginning March 13, 1996, in which Mr. McKenzie was convicted and sentenced to death on April 2, 1996. [18] In Case 12.126, Mr. Fletcher was convicted at his second trial, as the jury was unable to reach a verdict during his first trial in May of 1995. [19] In Case 12.126, Mr. Fletcher was convicted of three counts of capital murder and sentenced to death. On appeal, Mr. Fletcher was found guilty on three counts of non-capital murder, but his death sentence was maintained in accordance with Article 3B(3) of the Act. [20] In Case 12.146 (Anthony Rose), the Petitioners also rely upon Article 46(2)(b) of the Convention as an exception to the requirement of exhaustion. The petitioners allege that the State has prevented the victim from exhausting domestic remedies as a result of not providing legal aid for such motions, and has thereby denied the victim access to judicial redress. [21] In support of their position, the Petitioners cite decisions of other international human rights tribunals, including the decision of the European Court of Human Rights in Airey v. Ireland 2 EHRR 305 (1979), and the Human Rights Committee decision in the case of Currie v. Jamaica, Communication Nš 377/1989, U.N. Doc. Nš CCPR/C/50/D/377/1989 (1994). [22] In support of their position, the Petitioners cite the decisions of the U.N. Human Rights Committee in Little v. Jamaica, Communication Nš 283/1988, U.N. Doc. Nš CCPR/C/43/D/283/1988, Reid v. Jamaica, Communication Nš 725/1987, U.N. Doc. Nš CCPR/PR/C/39/D/725/1987; Collins v. Jamaica, Communication Nš 356/1989, U.N. Doc. Nš CCPR/C/47/D/356/1989, Smith v. Jamaica, Communication Nš 282/1988, U.N. Doc. CCPR/C/47/D/282/1988, Campbell v. Jamaica, Communication Nš 248/1987, U.N. Doc. Nš CCPR/C/44/D/248/1987, and Kelly v. Jamaica, Communication Nš 253/1987, U.N. Doc. Nš CCPR/C/41/D/253/1987. [23] The Constitution of Jamaica, 23 July 1962, Enacted as the Jamaica (Constitution) Order in Council, Second Schedule, Ch. III , Article 17(2) (providing in respect of protection from inhuman treatment that "[n]othing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorizes the infliction of any description of punishment which was lawful in Jamaica immediately before the appointed day"); Article 26(8) (providing that "[n]othing contained in any law in force immediately before the appointed day shall be held to be inconsistent with any of the provisions of this Chapter [including the right to life and protection from inhuman treatment]; and nothing done under the authority of any such law shall be held to be done in contravention of any of these provisions."). [24] In this regard, Articles 14 and 17 of the Jamaican Constitution provide for the recognition and protection of fundamental human rights and freedoms in Jamaica, including the right not to be subjected to cruel and unusual treatment or punishment. Also, as noted above, Articles 17(2) and 26(8) of the Constitution qualify the rights and freedoms under the Constitution, including and in particular the right not to be subjected to cruel and unusual treatment or punishment, by exempting laws that had effect as part of the law of Jamaica immediately before the commencement of the Constitution in 1962 from challenge under Articles 14 to 17 of the Constitution. As capital punishment, and the mandatory death penalty, were a part of the law of Jamaica before the enactment of its Constitution, the Petitioners allege that it is not open to individuals in Jamaica to effectively challenge the mandatory nature of the death penalty itself as contrary to their rights and freedoms under domestic law. [25] Woodson V. North Carolina, 428 U.S. 280 (1976) (U.S. Supreme Court). [26] The State v. Makwanyane and McHunu, Judgement, Case CCT/3/94 (6 June 1995) (Constitutional Court of the Republic of South Africa). [27] Bachan Singh V. State of Punjab, (1980) S.C.C. 475 (Supreme Court of India). [28]
Articles 90 and 91 of the Constitution of Jamaica provide as follows:
90.(1) The Governor General may, in Her Majesty's name and on Her
Majesty's behalf- (a) grant to any person convicted of any offence against the law of Jamaica a pardon, either free or subject to lawful conditions; (b)
grant to any person a respite, either indefinite or for a specified
period, from the execution of any punishment imposed on that person for such
an offence; (c)
substitute a less severe form of punishment for that imposed on any
person for such an offence; or (d)
remit the whole or part of any punishment imposed on any person for
such an offence or any penalty or forfeiture otherwise due to the Crown on
account of such an offence. (2)
In the exercise of the powers conferred on him by this section the
Governor-General shall act on the recommendation of the Privy Council. 91.(1)
Where any person has been sentenced to death for an offence against the law
of Jamaica, the Governor-General shall cause a written report of the case
from the trial judge, together with such other information derived from the
record of the case or elsewhere as the Governor-General may require, to be
forwarded to the Privy Council so that the Privy Council may advise him in
accordance with the provisions of section 90 of this Constitution. (2) The power of requiring information conferred on the Governor-General by subsection (1) of this section shall be exercised by him on the recommendation of the Privy Council or, in any case in which in his judgement the matter is too urgent to admit of such recommendation being obtained by the time within which it may be necessary for him to act, in his discretion. [29] In their petition, the Petitioners in Case 12.107 (Carl Baker) claim that "it is understood that the Governor General always exercises the Prerogative of Mercy for women in Jamaica convicted of capital murder.").
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