Barbados' Death Penalty. Will there be an Amendment, or Abolition?

Bridgetown, Barbados - Today during Parliamentary debate in Barbados, The Deputy Prime Minister, Attorney General and Minister of Home Affairs Mr. Freundel Stuart said that the Barbados Government in 2000, signed onto the Inter-American Court of Human Rights.

Mr. Stuart said that the time had come when Barbados would have to decide how it was going to handle the death penalty as stated in Section (2) of the Offences Against the Person Act and Section 26 of the Barbados Constitution, which makes the death penalty mandatory.

This is in conflict with the Inter-American Court which believes the death penalty should not be mandatory.

In response to the comment by Mr. Stuart, former Attorney General Dale Marshall informed the Parliament that although his Government was responsible for signing onto the Inter-American Court of Human Rights, he believes if there is going to be any editing of the Barbados Constitution in order to prevent the death penalty from being mandatory on any individual, then the Barbadian public should have some say in this matter, as Barbadians are generally in favour of the death penalty as it is.

It will be shown, however, that the Inter-American Court seeks the gradual abolition of the death penalty, whereas Mr. Stuart said Government will not be abolishing the death penalty, but will have to amend the Constitution to prevent the death penalty being mandatory.

The following is an excerpt from a document entitled THE ABOLITION OF THE DEATH PENALTY AND THE INTER-AMERICAN SYSTEM of the European Parliament- Authored by Christina M. Cerna. It was completed in January 2007.

Background to the Inter-American System:

In 1948 the Pan American Union was renamed the Organization of American States (OAS), a "regional arrangement" within the new United Nations world architecture.

Today, the Organization is comprised of 35 member States, having increased its size by one-third, primarily as a result of the inclusion of many small English-speaking island nations of the Caribbean that achieved independence during the 1960s.

The Inter-American Commission on Human Rights, established in 1959, applies two human rights instruments to the member States of the OAS. The first, the American Declaration on the Rights and Duties of Man was adopted in 1948, the American Convention in 1969, a legally binding treaty for the inter- American system. The American Convention then created the Inter-American Court of Human Rights, which has its seat in San Jose, Costa Rica.

Most of the English-speaking member States, have not yet become State parties to the American Convention, including, notably, the US and Canada.

The death penalty as set forth in the OAS human rights instruments:

Neither the American Convention nor the American Declaration protects the right to life absolutely, by categorically prohibiting the death penalty, as does the most modern of international human rights instruments, the European Union's Charter of Fundamental Rights for example.

The American Declaration provides a general protection for the right to life and does not mention the death penalty.

The American Convention, on the other hand, also provides a general protection for the right to life and then refers in 5 of its 6 paragraphs to the death penalty.

The second paragraph of article 4 introduces the death penalty by noting that it is to be abolished: "In countries that have not abolished the death penalty," and restricts its application "to the most serious crimes."

Paragraph 3 furthers the abolitionist tendency, stating that once the death penalty is abolished "it shall not be re-established".

In this regard, the Inter-American Court has stated: "The Convention adopts an approach that is clearly incremental in character. That is, without going so far as to abolish the death penalty, the Convention imposes restrictions designed to delimit strictly its application and scope, in order to reduce the application of the death penalty to bring about its gradual disappearance."

In June 1990, the OAS General Assembly adopted a similar document known as the Protocol to the American Convention on Human Rights to abolish the death penalty.

Trinidad and Tobago:

Of the 13 Caribbean States that are members of the British Commonwealth and also members of the OAS, only two have accepted the compulsory jurisdiction of the Inter-American Court: Trinidad and Tobago, which accepted the Court's jurisdiction in 1991 and then denounced it in 1998, and Barbados in 2000.

British advocates began to play an influential role in seeking to prevent executions in the English-speaking Caribbean and in the US and began to litigate death penalty cases before the Judicial Committee of the Privy Council and before the inter-American system.

The Privy Council's landmark decision in the 1994 Pratt & Morgan v. Jamaica case accepted the European Court of Human Rights' doctrine of the "death row phenomenon" which held that the imposition of the death penalty after an excessive delay would violate the defendant's right to humane treatment or punishment.

The Privy Council held that capital punishment could only continue to be imposed if it was carried out promptly, and ordered commutation if a prisoner had been held on death row for more than five years.

In cases where defendants sought redress before international human rights bodies, such as the UN Human Rights Committee and the Inter-American Commission, the five-year time period included an 18-month period within which these international claims were to be determined.

The international human rights bodies were unable to complete their examination of the increasing number of death penalty cases from the Caribbean within the allotted time. In 1996, the British advocates began presenting cases that challenged the mandatory nature of the death penalty in many of the English-speaking Caribbean States. The Commission received approximately 97 petitions concerning the death penalty in the Caribbean during the five-year period 1996-2001; most were filed against Trinidad and Tobago (51 petitions) and Jamaica (26 petitions).

In reaction to the growing flood of litigation, on May 26, 1998, Trinidad and Tobago announced that it was denouncing the American Convention due to the Commission's failure to guarantee compliance with the 18-month time frames.

Despite these significant advances in the elaboration of standards regarding the imposition of the death penalty in the Commonwealth Caribbean, Trinidad and Tobago continues to remain outside the inter-American system and has failed either to change its law or to comply with the judgments of the Inter-American Court.