LECTURE 5 - THE PROTECTION OF FUNDAMENTAL RIGHTS

The fundamental rights are:

o the right to life,
o liberty,
o personal safety,
o enjoyment of property,
o protection of law,
o freedom of conscience,
o expression,
o peaceful assembly and association,
o respect for private and family life.

Limits are placed on the enjoyment of these rights so as to protect the rights
of others and in the interest of public order, public safety, public morality and
good government. Any individual who claims that any of these rights has been
breached has the right to seek regress from the courts.

THE RIGHT TO LIFE:

It will not be a breach of a persons right to life if death occurs in any of the
following circumstances:
o The carrying out of the sentence of a competent court after conviction
for a crime.
o In defense of person or property (self-defense)
o Death as a result of resisting lawful arrest or escaping from lawful
custody.
o Death occurring in situations where proper personnel attempt to quell a
riot or mutiny
o Death as a result of a lawful act of war.

The constitution seeks to protect the right to life by putting in place certain
safeguards, such as the right of an accused person to have legal
representation in criminal cases.
The constitution provides that persons should be treated humanely in prisons
and penal institutions. The right to life however is breached in many instances
by organs of the state. The number of extrajudicial killings speaks that fact.

DEATH PENALTY:

Even thought constitution speaks to a right to life it also makes provision for
the death penalty. The constitution does this by providing that no person may
be killed on purpose except in the carrying out of a sentence of the court after
conviction for a crime. (Section 14 of the Jamaican Constitution.).

The main statute/ legislation which deals with the death penalty is the
Offences Against the Person Act. Until 2004, the act provided that the death
penalty was the automatic or mandatory sentence for capital murder and life
imprisonment the sentence for non-capital murder.

The act provides that capital murder occurs in any one of the following
circumstances:
o where a police officer, justice of the peace, judge, or any judicial officer
is killed in the line of duty
o where a juror is killed
o where a party to a case is killed
o where a witness to a case is killed,
o where murder occurs in furtherance of burglary, house breaking, arson,
sexual offence, terrorism,
o where murder is committed for hire,
o where murder is part of a joint enterprise,
o where a person commits 2 or more acts of non-capital murder in terms
of time or proximity.
There are certain categories of persons exempt from the death penalty even if
they commit capital murder:
a pregnant woman
an insane person (where they cannot plead that they are not competent
enough for the preceding).
A juvenile.
Women in general do not get the death penalty - this is a matter of general
practice rather than law.
ARGUMENTS IN SUPPORT OF THE DEATH PENALTY:

Capital punishment will serve as a deterrent to crime.

If the criminal is dead, he is no longer a threat to society.
It brings closure to the case for the family of the victim.
Offender shall get the same fate.
If persons are given the death penalty, then it removes the strain on the
countrys resources.
Serves as a way for society to express its indignation at the brutal acts
committed by the offender.
The death penalty has popular support.

ARGUMENTS AGAINST THE DEATH PENALTY;

There is no evidence that it serves as a deterrent to crime

The death penalty is barbaric and has no place in civilized society.

Most if not all the first world countries have abolished the death penalty.
The death penalty seems to discriminate against the poor.
Goes against human rights principles.
Goes against principles of love and mercy and rehabilitation and
forgiveness.
Death penalty makes the state as much a killer as the killer himself.
Innocent persons have died unjustly.

The death penalty has not been enforced in Jamaica since 1988. This is because
of the decisions handed down by the Privy Council in 4 landmark cases and
these cases are:
1.
2.
3.
4.

Pratt and Morgan vs. the Attorney General

Neville Lewis vs. the Attorney General.
Lambert Watson vs. the Attorney General
Smith vs. the Queen

Pratt and Morgan

In the Pratt and Morgan case, the Privy Council ruled that in any execution
taking place more than 5 years after sentencing, there would be a strong
presumption that the delay amounts to inhuman and degrading punishment or
inhumane treatment contrary to the Constitution, in which case, the sentence of
death must be commuted to life imprisonment.
Neville Lewis
In the Neville Lewis case, the Privy Council ruled that the accused/ prisoner must
be given the opportunity to exhaust all channels of appeal open to him both
locally and outside of the jurisdiction before the death sentence can be carried
out.
Lambert Watson
In the case of Lambert Watson, it served to further deter the enforcement of the
death penalty. The Privy Council ruled that the mandatory death penalty for
capital murder was unconstitutional because it deprives the acute of the right to
present his case, showing cause or reason why this sentence should not be
pronounced on him. It also removes the discretion given to judges to determine
what the sentence should be in any particular case. The court also said that in
every case of capital murder, there should be two hearings before the trial court
(Supreme Court).
The first hearing must be to determine guilt or culpability. The second hearing,
which is called a mitigation hearing, is to determine sentence. In this hearing, the
accused must be allowed if he so chooses to call character witnesses and also to
have the court reviews his antecedents (criminal record). At the end of this
hearing, the judge must decide whether the sentence should be the death
sentence or life imprisonment. As a result of this case, the offences against the

persons act was amended to remove the mandatory death sentence for cases or
capital murder and replace it with the sentence of death or life imprisonment.
Smith
In this case the accused broke into a dwelling house for the sole purpose of
killing his former girlfriend and was charged and convicted of capital murder on
the basis of house-breaking and burglary. The Privy Council found however that it
was not murder in furtherance of house-breaking or burglary because there was
no intention on the part of the accused to commit any criminal act apart from the
one which he committed and for which he was convicted. The court said that the
statue contemplated that murder in furtherance of house-breaking or burglary is
only committed where the accused had the intention to steal or commit some
other felony in the dwelling house and death occurs during that act or for the
purpose of escaping after the act is committed.
ABORTION

In the context of the right to life

Offences against the person act Sections 72 & 73 speak to the issue of
abortion
Section 72 - if a woman who is pregnant uses any poison, noxious substance,
any instrument or any other means for the purpose of procuring her own
miscarriage, she is guilty of a felony for which the sentence is lifeimprisonment, with or without hard labour.
Section 73 - any person who supplies a woman with any poison, noxious
substance, any instrument or any other means, knowing that she intends to
use them to procure her own miscarriage is guilty of a misdemeanor to which
the penalty is up to 3 years imprisonment, with or without hard labour.