Post by CCADP on Aug 23, 2005 7:06:10 GMT -5
Think again about consequencesG
Web Posted - Mon Aug 22 2005
By Cecil Ince
For some two weeks I have been reflecting on the Barbados Court of Appeal Case of Joseph and Boyce versus the Attorney-General which was heard in March and May this year and which related to a legal issue that has been troubling Barbadians continually for years- the question of execution for murder. Barbadians have been deeply divided on the matter. It is generally accepted that were there a referendum or plebiscite, it would favour those who believe that execution by hanging is a deterrent to violent crime. Last week I concluded that a Governments decision to appeal to the recently established Caribbean Court of Justice, against a decision of the local Court of Appeal that was favourable to Joseph and Boyce, would be at least questionable in law and morality.
Joyce and Joseph were convicted for violently bashing Marquelle Hippolyte to death on February 2, 2001. They received a mandatory death sentence. The Court of Appeal dismissed their appeals against conviction and sentence on March 27, 2002. Death warrants were read to them on June 26, 2002 for their execution on July 2. They then appealed to the London-based Judicial Committee of the Privy Council (JCPC) on the basis that the mandatory death penalty was unconstitutional. That appeal was dismissed two years later on July 7, 2004 and executions were again fixed for September 21, 2004. With all their national appeals having been rejected, Boyce and Joseph turned to the Inter-American Commission on Human Rights on the basis of a treaty that Barbados had entered into, but the Government stood in the way of their appeals and so they turned again to the national Court of Appeal. The Court of Appeal decision of May this year that was referred to in the first paragraph above, upheld the appeal of the condemned men. As I understand it, the Government of Barbados is now challenging their success.
The Court of Appeals first sentence in its decision of May this year reads: This appeal raises two main issues; first, whether it is a breach of the appellants constitutional rights to carry out the death sentence for murder prior to receiving final reports from human rights bodies&. It seems to me quite beyond question that once the right of recourse to the international human rights Courts has been properly conferred, the State cannot intervene just so, to deny its nationals the right. Denial of that right, plus the failure of the Government to reply to relevant correspondence from the Inter-American Court of Hunan Rights when given two months to respond as is recorded at pages 16 and 17 of the Court of Appeal Report can hardly be regarded as acting in the best faith. I can hardly believe that Barbados failed to comply, as stated at page 17 of the Court of Appeal Report, given the Attorney -Generals summary at page 15 which outlines the procedure by which a petition has to be processed through the Commission before the Court can decide whether the case is admissible. This follows a statement of the Court of Appeal, which seems to make clear Barbados awareness of its responsibility to its nationals under the protection of international law. I cite it verbatim for clarity and authority. The (American) Convention, which was signed on 22 November 1969 and entered into force on 18 July 1978, provides for a Commission and a Court. Barbados is one of the few member states of the Organization of American States that has ratified the Convention and accepted the jurisdiction of the Court. Barbados became a State Party to the American Convention on Human Rights in November 27, 1982 and then recognized the contentious jurisdiction of the Inter-American Court on June 4, 2000, only months before the conviction of Joseph and Boyce. Can Barbados be seen to be taking away in 2005 what it conferred in 1982 and 2000?
It would also appear to me that were the Attorney-General to take the case of Joseph and Boyce to the Caribbean Court of Justice and, in the unlikely event that that Court upheld the appeal of the Government, there would appear to be no impediment to the accused seeking international remedies even now. Were international remedies to be denied, many Barbadians would find another round of notices of execution distressing. Additionally, many in the general and legal community outside the national boundaries would hold the view that our eagerness to find a victim had driven us to fall short of our usual fair and generous standard. It would also be an extremely sad and inauspicious moment for the Caribbean Court of Justice, were it to start its life as a Court that fosters hanging.
As far as the Government of Barbados is concerned it would appear more just and wiser if on the question of capital punishment the Attorney-General appeared before the Caribbean Court in a case where the convicted persons had experienced a less tortuous path than Joseph and Boyce, and could call upon a prompt and fair course of international humanitarian rights.
The question of execution and capital punishment is primarily a political issue, and it is up to a State under its sovereignty to determine whether it will adopt a policy of capital punishment or not. If the Government of the day in Barbados therefore wishes to restore hanging as a policy of punishment, it should withdraw from the relevant and appropriate treaties or, where possible in law, enter reservations formally to the offending Articles. The Government should then advise its nationals of the change in law and policy, avoiding retrospective denial of the international remedies, and accept the challenge of explaining to Barbadians the change towards a less humanitarian international regime. Six months might be enough.
The Barbados Advocate
Web Posted - Mon Aug 22 2005
By Cecil Ince
For some two weeks I have been reflecting on the Barbados Court of Appeal Case of Joseph and Boyce versus the Attorney-General which was heard in March and May this year and which related to a legal issue that has been troubling Barbadians continually for years- the question of execution for murder. Barbadians have been deeply divided on the matter. It is generally accepted that were there a referendum or plebiscite, it would favour those who believe that execution by hanging is a deterrent to violent crime. Last week I concluded that a Governments decision to appeal to the recently established Caribbean Court of Justice, against a decision of the local Court of Appeal that was favourable to Joseph and Boyce, would be at least questionable in law and morality.
Joyce and Joseph were convicted for violently bashing Marquelle Hippolyte to death on February 2, 2001. They received a mandatory death sentence. The Court of Appeal dismissed their appeals against conviction and sentence on March 27, 2002. Death warrants were read to them on June 26, 2002 for their execution on July 2. They then appealed to the London-based Judicial Committee of the Privy Council (JCPC) on the basis that the mandatory death penalty was unconstitutional. That appeal was dismissed two years later on July 7, 2004 and executions were again fixed for September 21, 2004. With all their national appeals having been rejected, Boyce and Joseph turned to the Inter-American Commission on Human Rights on the basis of a treaty that Barbados had entered into, but the Government stood in the way of their appeals and so they turned again to the national Court of Appeal. The Court of Appeal decision of May this year that was referred to in the first paragraph above, upheld the appeal of the condemned men. As I understand it, the Government of Barbados is now challenging their success.
The Court of Appeals first sentence in its decision of May this year reads: This appeal raises two main issues; first, whether it is a breach of the appellants constitutional rights to carry out the death sentence for murder prior to receiving final reports from human rights bodies&. It seems to me quite beyond question that once the right of recourse to the international human rights Courts has been properly conferred, the State cannot intervene just so, to deny its nationals the right. Denial of that right, plus the failure of the Government to reply to relevant correspondence from the Inter-American Court of Hunan Rights when given two months to respond as is recorded at pages 16 and 17 of the Court of Appeal Report can hardly be regarded as acting in the best faith. I can hardly believe that Barbados failed to comply, as stated at page 17 of the Court of Appeal Report, given the Attorney -Generals summary at page 15 which outlines the procedure by which a petition has to be processed through the Commission before the Court can decide whether the case is admissible. This follows a statement of the Court of Appeal, which seems to make clear Barbados awareness of its responsibility to its nationals under the protection of international law. I cite it verbatim for clarity and authority. The (American) Convention, which was signed on 22 November 1969 and entered into force on 18 July 1978, provides for a Commission and a Court. Barbados is one of the few member states of the Organization of American States that has ratified the Convention and accepted the jurisdiction of the Court. Barbados became a State Party to the American Convention on Human Rights in November 27, 1982 and then recognized the contentious jurisdiction of the Inter-American Court on June 4, 2000, only months before the conviction of Joseph and Boyce. Can Barbados be seen to be taking away in 2005 what it conferred in 1982 and 2000?
It would also appear to me that were the Attorney-General to take the case of Joseph and Boyce to the Caribbean Court of Justice and, in the unlikely event that that Court upheld the appeal of the Government, there would appear to be no impediment to the accused seeking international remedies even now. Were international remedies to be denied, many Barbadians would find another round of notices of execution distressing. Additionally, many in the general and legal community outside the national boundaries would hold the view that our eagerness to find a victim had driven us to fall short of our usual fair and generous standard. It would also be an extremely sad and inauspicious moment for the Caribbean Court of Justice, were it to start its life as a Court that fosters hanging.
As far as the Government of Barbados is concerned it would appear more just and wiser if on the question of capital punishment the Attorney-General appeared before the Caribbean Court in a case where the convicted persons had experienced a less tortuous path than Joseph and Boyce, and could call upon a prompt and fair course of international humanitarian rights.
The question of execution and capital punishment is primarily a political issue, and it is up to a State under its sovereignty to determine whether it will adopt a policy of capital punishment or not. If the Government of the day in Barbados therefore wishes to restore hanging as a policy of punishment, it should withdraw from the relevant and appropriate treaties or, where possible in law, enter reservations formally to the offending Articles. The Government should then advise its nationals of the change in law and policy, avoiding retrospective denial of the international remedies, and accept the challenge of explaining to Barbadians the change towards a less humanitarian international regime. Six months might be enough.
The Barbados Advocate