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Barbados Hanging proposals
Posted: Sunday, August 4, 2002

"A serious breach of the rule of law?"

by Shelagh Simmons

If the Government of Barbados goes ahead with its recently announced plan to amend the Constitution in order to circumvent death penalty rulings from its highest court, the Judicial Committee of the Privy Council (JCPC), it will breach international law and set a dangerous precedent.

In 1999, the then Attorney General of Trinidad and Tobago, Ramesh Lawrence Maharaj, told the 12th Commonwealth Law Conference that even if governments disagreed with JCPC rulings regarding the death penalty, "they have an obligation whilst it remains the Final Court of Appeal from their countries to obey and carry out its orders. It would be a serious breach of the Rule of Law for any government to disobey the order of its Final Court of Appeal".

The JCPC rulings the Government plans to defy have not been perverse, but in line with international law for the application of capital punishment.

And in a wider context, if the Government is prepared to respond to judgements it does not like by changing the law, what guarantees can the people of Barbados have that it will stop at the death penalty?

Moreover, in moving to pre-empt any attempts to challenge the mandatory death sentence, the Barbados Government will be out of step with regional trends and in breach of international law.

The mandatory death penalty has already been outlawed in the Eastern Caribbean - initially by the Eastern Caribbean Court of Appeal and confirmed by the JCPC - because it is imposed arbitrarily, making it cruel and inhuman punishment and therefore unconstitutional.

The (United Nations) Human Rights Committee has ruled the mandatory death sentence in St Vincent and the Grenadines and Trinidad and Tobago violates the right to life guaranteed under the International Covenant on Civil and Political Rights.

And the Inter-American Commission on Human Rights has ruled it violates both the American Declaration and American Convention on Human Rights in Jamaica, Trinidad and Tobago, the Bahamas and Grenada. This was recently confirmed by the Inter-American Court of Human Rights in the case of Hilaire, Constantine and Benjamin et al v Trinidad and Tobago.

Prior to this, the Government of Trinidad and Tobago was planning to introduce categories of murder, not all of which will carry the death penalty. While this will not actually end the mandatory death sentence, it will be a welcome restriction on capital punishment and illustrates how out of step Barbados is with contemporary legal thinking and attitudes on the issue.

Further, having ratified the American Convention on Human Rights and accepted the Court’s jurisdiction, Barbados would be in flagrant breach of its treaty obligations should any attempts be made to preserve the mandatory death sentence.

Should it proceed with these proposals, Barbados could find itself isolated, in breach of international law and human rights conventions to which it is a party, and at odds with practice that is widely accepted in the minority of countries that still use judicial killing. The mandatory death penalty has, for example, been outlawed in the United States, India, the Eastern Caribbean and Belize. Indeed, within the Commonwealth, the decreasing number of Caribbean countries where it remains law are the last bastions of the mandatory death sentence in the democratic, civilised world.

And it must be remembered that JCPC decisions have not abolished capital punishment, but have set important, internationally recognised minimum standards for its application where none previously existed. The executions carried out in recent years in St Kitts and Nevis, Trinidad and Tobago and the Bahamas are proof that it is possible to comply with Privy Council rulings and retain the death penalty.

Similarly, ending the mandatory death sentence does not mean the end of capital punishment. It means individual sentencing, allowing for proper mitigation and reserving the death sentence for the most heinous crimes.

The proposed moves are therefore both unnecessary to the retention of the death penalty and contrary to international law. They would seriously damage the country’s international reputation as an upholder of human rights and we strongly urge the Government of Barbados not to take these retrograde steps.

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