Identifier
Created
Classification
Origin
08KINGSTON1053
2008-12-12 16:33:00
CONFIDENTIAL
Embassy Kingston
Cable title:  

JAMAICAN PARLIAMENT RETAINS DEATH PENALTY, NO

Tags:  PGOV SOCI PINR SNAR ASEC KCOR CPAS PBTS JM XL 
pdf how-to read a cable
VZCZCXYZ0013
PP RUEHWEB

DE RUEHKG #1053/01 3471633
ZNY CCCCC ZZH
P 121633Z DEC 08
FM AMEMBASSY KINGSTON
TO RUEHC/SECSTATE WASHDC PRIORITY 7080
INFO RUCNCOM/EC CARICOM COLLECTIVE
RUEHLO/AMEMBASSY LONDON 0537
C O N F I D E N T I A L KINGSTON 001053 

SIPDIS

E.O. 12958: DECL: 12/11/2018
TAGS: PGOV SOCI PINR SNAR ASEC KCOR CPAS PBTS JM XL
SUBJECT: JAMAICAN PARLIAMENT RETAINS DEATH PENALTY, NO
MOVEMENT ON BROADER CRIME BILLS

REF: KINGSTON 837

Classified By: DCM JAMES T. HEG FOR REASONS 1.4(b) and (d)

C O N F I D E N T I A L KINGSTON 001053

SIPDIS

E.O. 12958: DECL: 12/11/2018
TAGS: PGOV SOCI PINR SNAR ASEC KCOR CPAS PBTS JM XL
SUBJECT: JAMAICAN PARLIAMENT RETAINS DEATH PENALTY, NO
MOVEMENT ON BROADER CRIME BILLS

REF: KINGSTON 837

Classified By: DCM JAMES T. HEG FOR REASONS 1.4(b) and (d)


1. (C) Summary: In the lead up to a November 24
parliamentary vote in which legislators decided to retain the
death penalty in Jamaica, there was strong public debate on
the issue. Most Jamaicans, frustrated by the high crime
level, support maintaining the death penalty. The discussion
also raised questions about the United Kingdom (UK) Privy
Council, which remains Jamaica,s highest appellate court.
Since the death penalty is outlawed in the UK while
permissible in Jamaica, the Privy Council has ruled to limit
its use. An opposition Senator believes the death penalty
may be the wedge issue that allows Jamaica to permanently
break with the Privy Council. While the issue has garnered a
great deal of publicity, it is only peripheral to Jamaica,s
serious crime problem, which politicians have yet to address.
End summary.

Jamaican Parliament Upholds
Death Penalty
--------------


2. (U) In a November 24 vote, 34 out of 60 members of
parliament (MPs) supported retention of the death penalty.
Fifteen MPs opposed it, while 10, including opposition leader
(and former Prime Minister) Portia Simpson-Miller, were
absent from the proceedings. In the lead-up to the
parliamentary vote, the media carried daily editorials and
readers, responses on the topic. The vast majority of
Jamaicans support the death penalty, and in the 2007 general
election, the Jamaica Labor Party (JLP) campaigned as &tough
on crime8 by pledging to uphold it.


3. (U) Many Jamaicans, frustrated by the level of crime,
felt the death penalty should remain on the books, and
perhaps be implemented with greater frequency. The state has
not conducted an execution in the last two decades. Jamaica,
with a population of just under three million, saw over 1,200
murders in 2008; by contrast, Chicago, with a similar-sized

population, had around 440 murders in the same period.
Despite general public support, human rights groups such as
Amnesty International and the local NGO Jamaicans for Justice
published calls to abolish the death penalty, citing studies
that it does not act as a deterrent to crimes.

Nuances of UK Privy Council,s Role
in Jamaican Legal System
--------------


4. (C) People,s National Party (PNP) senator Basil Waite
(please protect) gave poloff copies of briefing documents
that legislators reviewed to prepare for the vote. Under
current practice, the Judicial Committee of the United
Kingdom (UK) Privy Council can make rulings on Jamaican
constitutional law, and it remains the highest appellate
court. This has given rise to some controversy on death
penalty issues. In a 1993 case, the Privy Council ruled that
a delay of more than five years between a death penalty
sentencing and the pursuant execution would constitute cruel
and inhumane punishment. The ruling was predicated on the
time necessary to lodge local appeals (two years) and also
any appeals to the United Nations Human Rights Committee and
the Inter-American Commission on Human Rights (3 years).
With poor prison conditions, the Privy Council determined,
holding a condemned person for longer than five years would
be an &indefinite detention,8 violating the Jamaican law
against inhumane punishment.


5. (C) That mandate is the primary reason there have been no
executions in Jamaica since 1988. The justice system in
Jamaica proceeds very slowly, and those convicted can make
the appeals process last longer than five years, thereby
having the original sentence commuted. Another Privy Council
ruling in 2004 found unconstitutional a 1992 Jamaican law
requiring mandatory death penalty sentencing in capital
murder cases. As a result, prosecutors were able to exercise
discretion in whether to seek the death penalty, and the
accused were permitted to make a case for a lesser sentence.


6. (C) Many Jamaicans, including Waite and fellow PNP
senator (and former Attorney General) AJ Nicholson, believe
the Privy Council rulings are based on moral objections to
the death penalty and statutes in the European Human Rights
Act. In separate private conversations with poloff, Waite,
who supports the death penalty, and Nicholson, who opposes
it, both asserted that the Privy Council has sought to limit
the death penalty in Jamaica through rulings that reduce
Jamaican autonomy. The Council has not been able to
overturn the death penalty outright based on the &Savings

Law Clause,8 which protects any law that remains the same in
substance from prior to independence from the UK. In other
words, pre-independence laws take precedence over the current
Jamaican constitution; any laws changed after independence
are subject to the Privy Council,s review of whether it
meets the current constitutional standard. Based on the
Savings Law Clause, hanging remains the method of execution
in death penalty cases in Jamaica because it was in place
prior to independence.

PNP Opposition to Privy Council
--------------


7. (C) Nicholson told poloff that his party opposes the
Privy Council,s role in principle. He cited instances where
other Caribbean countries had broken with the Council,
including a 2002 decision by Barbados to reclaim its own
courts as the highest appellate bodies. Belize currently has
a bill before its parliament to authorize the transfer of all
capital murder cases from the Privy Council to its own local
high court. Regarding the death penalty, Nicholson added,
the Privy Council has no case precedents since the punishment
is outlawed in the UK. While Nicholson agrees with the
morality behind the UK legal position, he strongly feels that
Jamaicans should be able to determine their own laws without
foreign interference.


8. (C) Waite believes the death penalty has such broad
support in Jamaica that it may just be the wedge issue that
enables the country to oust the Privy Council for good. &If
we,re going to see hanging returned to Jamaica, we,re going
to see a move away from the Privy Council as the highest
court toward the Caribbean Court of Justice (instead,)8 he
told poloff. According to Waite, 80 percent of Jamaicans
favor the death penalty. This could garner the necessary
two-thirds majority in both the House and Senate, as well as
a majority in the national referendum, that would be required
to make the Caribbean Court of Justice the highest appeals
court.

Death Penalty Debate a Distraction?
--------------


9. (C) In June 2008, the governing JLP held talks with
opposition PNP on how best to combat crime. As a result, MPs
introduced six crime bills in parliament, all of which have
remained mired in committee. The PNP,s Peter Phillips, who
lost the September contest for presidency of the party (ref),
was the lead negotiator at the discussions, held at Vale
Royal. According to Waite, many in the party resented
Phillips,s making commitments without consulting with key
PNP players. This is one reason he was not offered a
position following Portia Simpson-Miller,s election as party
president, Waite posited. In Waite,s view, now that
Phillips no longer has &full standing,8 he is less
influential in parliament.


10. (C) AJ Nicholson noted that most of the crime bills have
a one year sunset clause attached, and he is willing to vote
with the JLP to implement the measures. &The government
should have the time and support it needs to get the crime
situation under control,8 he said. He also stated that
regardless of who made the commitments at Vale Royal, the
party has an obligation to fulfill the terms of the deal.
When asked whether the debate over the death penalty is
diverting attention from the greater crime problem, Nicholson
said, &The death penalty discussion is not a distraction.
The question of whether it is carried out or not reflects the
confidence the electorate has in the authorities to carry out
the rule of law. The discussion speaks directly to public
confidence.8

Comment and Analysis
--------------


11. (C) Support for the death penalty reflects public
frustration with rampant crime and the perception of
impunity, not faith in the State,s ability to maintain the
rule of law, Nicholson,s assertion notwithstanding. Most
observers believe the Jamaican populace would be best served
if MPs acted to strengthen crime legislation and held
prosecutors and police to account. Yet the crime bills that
initially had bipartisan support continue to flounder in
committee, where they have been largely defanged of real
substance. NGO contacts report that they are testifying at
committee hearings, but they have little hope of an imminent
vote or implementation of recommended measures. In the
meantime, the public continues to discuss the death penalty
and the role of the Privy Council in Jamaica. The lack of
any executions over the last twenty years and &foreign
interference8 make for convenient scapegoats in the public

eye, but addressing those tangential issues does little to
alleviate the crime situation.
Johnson