Cruel, inhuman and degrading punishment; a re-reading of Pratt and Morgan

• Author: Simeon C.R. McIntosh
• Position: Emeritus Professor of Law, Howard University, Washington, D.C., Professor of Jurisprudence
• Pages: 1-36

CRUEL, INHUMAN AND DEGRADING

PUNISHMENT; A RE-READING OF

PRATT AND MORGAN

SIMEON C.R. MCINTOSH*

Introduction

Every so often, in the life of any society, cases may arise that put in

issue in some seminal way the character of the constitution and of the

social and political order. Such cases have profound political and social

consequences that go to a significant aspect of the political order The

most telling evidence of this is the extent to which the government and

citizenry alike are willing to order the social and political life in

accordance with the opinions set forth in these judicial decisions. The

recent decision of the Judicial Committee of the Privy Council, the

highest appellate body for virtually the entire Commonwealth

Caribbean, in the Pratt and Morgan case1, seems rather of this kind.

The more immediate consequence of the Committees ultimate ruling,

that a delay of approximately Five (5) years in the execution by hanging

of a condemned prisoner constitutes inhuman and degrading

punishment or other treatment, has been the commutation of the death

sentence to life imprisonment in several cases throughout the

Commonwealth Caribbean.

Emeritus Professor of Law, Howard University, Washington, D.C., Professor of

Jurisprudence. Faculty of

Law,

University of the West Indies, Cave Hill Campus,

Barbados,

This Paper was presented as the subject-matter of the Second Sir Archibald

Nedd Memorial Lecture which was delivered at the St. Joseph's Convent, St.

Georges,

Grenada, on February 5,1998, under the distinguished sponsorship of the

Grenada Bar Association.

The author wishes to express his deep gratitude to his colleague, Gilbert

Kodilinye,

for his invaluable editorial assistance in the preparation of this Paper.

Portions of this Paper were previously published as part of

a

larger work tilled:

"Fundamental Rights and Democratic Governance in the Commonwealth

Caribbean."

1 Pratt and Another

v.

Attorney-General for Jamaica [1993] 4 All E.R. 769 PC.

The far deeper and more profound consequences, however, have been

evidenced by subsequent judicial rulings, in the Bahamas2 and in

Barbados3, for example, in cases that do not obviously bear the

imprimatur of the special circumstances of Pratt and Morgan, that a

mere delay of approximately 4½ years in the hanging of the condemned

constitutes inhuman and degrading punishment or other

treatment.

In

addition, there is evidence that Trinidad and Tobago is moving to

expedite the appeals process in death penalty cases, in order to bring

them within the Pratt and Morgan five-year rule. A possible

consequence of this particular change is that, depending on the number

of prisoners condemned to be hanged, we could, in the space of one

year, conceivably have two or three executions per month. This would

undoubtedly have a wrenching impact on the collective psyche.

Also, the ruling in Pratt and Morgan has occasioned urgent pleas

from many quarters throughout the region for the abolition of appeals

to the English Privy Council and for the establishment of a Caribbean

court of final appeal. The opposition to the Privy Council's decisions

in Pratt and Morgan and its progeny seems virtually to be the sole

predicate on which the advocates for a Caribbean Court of Appeal

would rest their case. As a former Attorney General of Barbados, Mr.

Maurice King, Q.C., puts it, the argument for the establishment of a

Caribbean Supreme Court as our final Court of Appeal in place of the

Privy Council is advanced in the context of a widely-held perception

that a very high percentage of Barbadians and of other Caribbean people

strongly support capital punishment for persons convicted of murder,

and severe corporal punishment for persons convicted of perpetrating

other forms of violent crime.4 "The argument is premised," he writes,

2 Henfield and Partington

v.

Attorney-General of the Bahamas and Others [1996]

3W.L.R. 1079.

The Board has in fact concluded that a period of 3½a years in prison awaiting

execution, with all the agony of mind which that entails, would in all the

circumstances be so prolonged a time as to render execution cruel or inhuman

punishment,

3 Harewood et al

v.

Attorney-General of Barbados and Others (Nos 1529 & 1530,

1995;

decided November 13, 1996).

4 Maurice

King,

"Human Rights and Wrongs Worldwide", The Barbados Advocate,

Wednesday, December 25, 1996.

"on the assumption that a Caribbean Supreme Court would inevitably

and of necessity reject and reverse the jurisprudence of the Privy

Council in determining issues of what amounts to cruel and inhuman

and degrading punishment and treatment It is premised, also, on the

assumption that the judges of a Caribbean Supreme Court would

determine such issues by reference only to local views and without

reference to international human rights norms and standards as agreed

on by the international community."5 Unfortunately, the urgent pleas

for a Caribbean court of final appeal coming as they have in the wake

of these Privy Council rulings to which there is strong opposition, have

in fact furnished the grounds for the critics' telling riposte that we

simply wish to fashion a court to do our bidding.

But perhaps the most important consequence of political,

psychological and symbolic import to date, of the Pratt and Morgan

decision, has been the Jamaican Government's decision to withdraw

Jamaica from the Optional Protocol to the International Covenant on

Civil and Political Rights; a treaty which Jamaica had ratified in

October, 1975. In an attempt to bring Jamaica within the strict letter of

the Pratt and Morgan five-year rule, that is, in order to reduce the time

for hearing appeals in death penalty cases, the Jamaican Government

has decided to denounce the Optional Protocol, thereby effectively

denying to Jamaicans the right of appeal to the United Nations Human

Rights Committee, now that the denunciation has taken effect as of

January, 1998.6

The International Covenant on Civil and Political Rights is an

international treaty which guarantees to the citizens of member

countries a wide range of fundamental human rights. These rights, as

set out in the Covenant, include the right to liberty and security of

person, the right not to be subject to arbitrary arrest and detention, the

right to a fair trial, the right to privacy, freedom of thought, conscience

and religion, freedom of movement, freedom of association, the right of

5 Ibid.

6 See Stephen Vasciannie, "Civil Rights and Civilisation", The

Gleaner,

October 27,

1997,

and "Human Rights; Explaining the Optional Protocol" (on file with the

author).