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Jamaica—death penalty—definition of torture and inhuman or degrading treatment or punishment

Published online by Cambridge University Press:  27 February 2017

Barry Phillips
Affiliation:
Barrister-at-Law, Gray’s Inn, London

Abstract

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Type
International Decisions
Copyright
Copyright © American Society of International Law 1994

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References

1 Peter A. Howell, The Judicial Committee of the Privy Council 1833–1876, at 2 (1979).

2 Supreme Court of Canada Act 1949, 13 Geo. 6, ch. 37.

3 Abolition of Privy Council Jurisdiction Act 1949, 1 India A.I.R. Manual 1 (1969).

4 Federal Court (Enlargement of Jurisdiction) Act 1950 (Act I), 11 Pak. Code 46 (1967).

5 The principle of appeal to Her Majesty in Council applies to the following territories: Antigua and Barbuda, the Bahamas, Barbados, Belize, Brunei, Dominica, The Gambia, Grenada, Jamaica, Kiribati, Mauritius, New Zealand, Singapore, St. Christopher and Nevis, St. Lucia, St. Vincent and the Grenadines, Trinidad and Tobago, Tuvala, and the Sovereign Base Area of Akrotiri (in Cyprus); and the Dependent Territories, which include Anguilla, Bermuda, the British Antarctic Territory, the British Indian Ocean Territory, the British Virgin Islands, the Cayman Islands, the Falkland (Malvinas) Islands, Gibraltar, Hong Kong, Montserrat, St. Helena, and Turks and Caicos Islands. See UK Privy Council, Judicial Committee of the Privy Council: Jurisdiction as at August 1992 (1992).

6 Philip Joseph, Towards Abolition of Privy Council Appeals: The Judicial Committee and the Bill of Rights, 2 Canterbury L. Rev. 273, 273 (1985).

7 Case 90540, Inter-Am. C.H.R., reported in OEA/SER.L/V/II.66, doc. 10, rev.1, at 111 (1984).

8 Pratt and Morgan v. Jamaica, Report of the Human Rights Committee, UN GAOR, 44th Sess., Supp. No. 40, at 222, UN Doc. A/44/40 (1989). See generally William A. Schabas, The Abolition of the Death Penalty in International Law (1993).

9 [1993] 4 All E.R. 769, 777.

10 Id. at 778.

11 Dec. 16, 1966, 999 UNTS 171.

12 On Article 7 jurisprudence, see generally P. R. Ghandhi, The Human Rights Committee and Articles 7 and 10(1) of the International Covenant on Civil and Political Rights, 1966, 13 Dalhousie L.J. 758 (1990).

13 Section 25(2) of the Constitution provides:

The Supreme Court shall have original jurisdiction to hear and determine any application made by any person in pursuance of subsection (1) of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purposes of enforcing, or securing the enforcement of, any of the provisions of the said sections 14 to 24 (inclusive) to the protection of which the person concerned is entitled.

Const, sec. 25(2), 9 Constitutions of the Countries of the World (Albert P. Blaustein & Gisbert H. Flanz eds., 1983). See generally Lloyd G. Barnet, The Constitutional Law of Jamaica (1977).

14 Const, sec. 17(1).

15 GA Res. 217A (III), UN Doc. A/810, at 71 (1948).

16 Robertson states of the Universal Declaration: “It has inspired more than forty State constitutions, together with the regional human rights treaties of Europe, Africa and the Americas, and examples of legislation quoting or reproducing provisions of the Declaration can be found in all continents.” Arthur H. Robertson, Human Rights in the World 27 (3d ed. 1989).

17 See generally Steven Ackerman, Torture and Other Forms of Cruel and Unusual Punishment in International Law, 11 Vand. J. Transnat’l L. 653 (1978).

18 26 Eur. Ct. H.R. (ser. A) (1978).

19 Id. at 20.

20 1969 Y.B. Eur. Conv. On H.R. 186.

21 Id.

22 Id.

23 Id. See Barry Klayman, The Definition of Torture in International Law, 51 Temple L.Q. 468, 492–93 (1978).

24 On Article 3, see generally Nigel Rodley, The Treatment of Prisoners in International Law 71–91 (1987); Peter Duffy, Article 3 of the European Convention on Human Rights, 32 Int’l & Comp. L.Q. 316 (1983); Louise Doswald-Beck, What Does the Prohibition of “Torture or Inhuman or Degrading Treatment or Punishment” Mean? The Interpretation of the European Commission and Court of Human Rights, 25 Neth. Int’l L. Rev. 24 (1978).

25 1 Council of Europe, Collected Edition of the Travaux Préparatoires of the European Convention on Human Rights 254 (1975). At the drafting stage of the European Convention, delegate Cocks proposed the following amendment to the article intended to prohibit torture and ill treatment:

The Consultative Assembly takes this opportunity of declaring that all forms of physical torture, whether inflicted by the police, military authorities, members of private organisations or any other persons are inconsistent with civilised society, are offences against heaven and humanity and must be prohibited.

They declare that this prohibition must be absolute and that torture cannot be permitted by any purpose whatsoever, neither by extracting evidence for saving life nor even for the safety of the State.

Id. The Drafting Committee opposed the suggested amendments for fear that specificity might restrict application of the article. The delegates, however, accepted the substance of the remarks. Klayman, supra note 23, at 472.

26 Klayman, supra note 23, at 492–93.

27 23–1 Eur. Ct. H.R. (ser. B) (1976–78).

28 Id. at 390.

29 25 Eur. Ct. H.R. (ser. A) at 65 (1978).

30 For example, the history of capital punishment in the United Kingdom during the twentieth century until abolition demonstrates the will to find and perfect the least painful form of execution. See Royal Commission on Capital Punishment, Report, 1949–53, Cmd 8932, para. 700.

31 25 Eur. Ct. H.R. (ser. A) at 129–30 n.19.

32 161 Eur. Ct. H.R. (ser. A) (1989).

33 Andrew Clapham, Human Rights in the Private Sphere 200 (1993).

34 1975 Y.B. Eur. Conv. on H.R. 82; and 1979 id. 440. See Zaim M. Necatigil, The Cyprus Question and the Turkish Position in International Law 94–100 (1989).

35 “It is suggested that the better approach is consistently to take a ‘victim’s perspective’, to decide if the act complained of comes within the aim of the Article in question, and then decide whether ‘but for’ the omission of the State the act would probably not have occurred.” Clapham, supra note 33, at 201.

36 [1993] 4 All E.R. at 772.

37 25 Eur. Ct. H.R. (ser. A) at 122. The five techniques were: wall standing, hooding, deprivation of sleep, deprivation of food and drink, and subjection to noise. See generally Tim Shallice, The Ulster Depth Interrogation Techniques and Their Relation to Sensory Deprivation Research, 1 Cognition: Int’l J. Cognitive Psychol. 385 (1972).

38 [1993] 4 All E.R. at 787.

39 On the effects of prolonged detention on death row in the United States, see Note, Mental Suffering under Sentence of Death: A Cruel and Unusual Punishment, 57 Iowa L. Rev. 814 (1972); see also Philip Hicks, The Psychiatrist and the Death Penalty, Am. J. Forensic Psychol., No. 2, 1993, at 29.

40 [1993] 4 All E.R. at 783.

41 Pownall v. Mascall, [1833] 2 Knapp 161, 179–80, 12 Eng. Rep. 441.

42 25 Hansard’s Parliamentary Debates (2d ser.) 1191 (1830). This passage is said to have had a profound influence on the American judiciary’s development of the concept of a higher law. Howell, supra note 1, at 232.

43 According to Howell, supra note 1, at 233, “The early members of the Judicial Committee were heirs to the legacy of Coke, Holt, Mansfield and Blackstone, who had kept alive several aspects of that natural law tradition which the medieval English lawyers had derived from the Stoics, through the schoolmen.”

44 [1993] 4 All E.R. at 788–89.

45 Id. at 786.

46 Id.

47 Catholic Comm’n for Justice and Peace in Zimbabwe v. Attorney Gen. (No. 73/93, Sup. Ct. Zimb., June 24, 1993) (Gubby, C.J.); Vatheeswaran v. Tamil Nadu, [1983] 2 S.C.R. 348, 353 (Chinnappa Reddy, J.); Treveniben v. Gujarat, [1989] 1 S.C.J. 383 (Oza, J.) (approving Sher Singh v. Punjab, [1983] 2 S.C.R. 582).

48 Abbott v. Attorney Gen. of Trinidad & Tobago, [1979] 1 W.L.R. 1342.

49 Riley v. Attorney Gen. for Jamaica, [1983] 1 A.C. 719.

50 Richmond v. Lewis, 948 F.2d 1473 (9th Cir. 1990) (O’Scannlain, J.).

51 Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 (La Forest, J.).

52 Martin v. Jamaica, Report of the Human Rights Committee (Part II), Ann. VII, J, para. 12.2, UN Doc. A/48/40 (pt. II) (1993).

53 408 U.S. 238 (1972).

54 428 U.S. 153 (1976).

55 See the Ashby case (Ct. App. Trin. & Tobago 1994), The Times (London), July 16, 1994, at 1 (appellant hanged despite authorities’ undertaking to permit “all possibility of obtaining a stay of execution including an appeal to the [Privy Council]”).

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