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Jamaica Withdraws the Right of Individual Petition under the International Covenant on Civil and Political Rights

Published online by Cambridge University Press:  27 February 2017

Natalia Schiffrin
Natalia Schiffrin*
Affiliation:
Interights (The International Centre for the Legal Protection of Human Rights), London
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Extract

In October 1997, a little-noticed event took place at the United Nations that may roll back the international legal protection of human rights. Jamaica became the first country to denounce the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), and thus withdrew the right of individual petition to the UN Human Rights Committee (Committee). Although it is provided for under the Protocol’s Article 12, no state has previously made such a denunciation.

Type
Current Developments
Information
American Journal of International Law , Volume 92 , Issue 3 , July 1998 , pp. 563 - 568
Copyright
Copyright © American Society of International Law 1998

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References

* The author is currently a Human Rights Officer in the Office of the UN High Commissioner for Human Rights, but the views expressed here are his own.

1 International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 UNTS 171.

2 Optional Protocol to the International Covenant on Civil and Political Rights, Dec. 19, 1966, Art. 12, 999 UNTS 302.

3 North Korea withdrew from the Covenant itself in August 1997. Shortly after its withdrawal, the UN Human Rights Committee adopted General Comment No. 26 on issues relating to the continuity of obligations to the International Covenant on Civil and Political Rights, UN Doc. CCPR/C/21/Rev.1/Add.9 (1997). The comment states that withdrawals and denunciations are not permitted under the Covenant, and thus throws into question the status of North Korea’s withdrawal.

4 J.M. V. Jamaica, Communication No. 165/1984, UN Doc. CCPR/C/OP/2, at 17. J.M. concerned the denial of a passport and was declared inadmissible on March 26, 1986.

5 No case has ever successfully challenged the legality of the death penalty itself, which is not prohibited by the Covenant. The death penalty is, however, prohibited by the Second Optional Protocol to the International Covenant on Civil and Political Rights Aimed at the Abolition of the Death Penalty, Dec. 15, 1989, GA Res. 44/128 (1990), 29 ILM 1464 (1990). None of the countries of the Commonwealth Caribbean are party to the Second Optional Protocol.

6 See, e.g., Bradshaw v. Jamaica, Communication No. 489/1992 (views adopted July 19, 1994), UN Doc. CCPR/C/51/D/489/1992; Kelly v. Jamaica, Communication No. 537/1993 (views adopted July 17, 1996), UN Doc. CCPR/C/57/D/537/1993; Richards v. Jamaica, Communication No. 535/1993 (views adopted Mar. 31, 1997), UN Doc. CCPR/C/59/D/535/1993.

7 Robinson, Communication No. 223/1987 (views adopted Mar. 30, 1989), UN Doc. CCPR/C/35/D/ 223/1987.

8 Little v. Jamaica, Communication No. 283/1988 (views adopted Jan. 19, 1988), UN Doc. CCPR/C/43/D/ 283/1988.

9 Henry v. Jamaica, Communication No. 230/1987 (views adopted May 29, 1987), UN Doc. CCPR/C/43/ D/230/1987.

10 For example, Cyprus, Mali, Jamaica and Vietnam have all been half a dozen years late or more in the submission of their state reports to the Human Rights Committee.

11 For example, Equatorial Guinea, Gabon and Somalia.

12 See Recommendation for Enhancing Effectiveness of the United Nations Activities and Mechanisms, UN Doc. A/CONF.157/TBB/3 (1993).

13 Unfortunately, this cannot be said of two of Jamaica’s Commonwealth Caribbean neighbors. Trinidad and Tobago executed Glen Ashby in 1994 despite a request by the Committee under Rule 86 of its Rules of Procedure for an interim stay of execution pending consideration of Mr. Ashby’s application to the Committee. Shortly after acceding to the Optional Protocol, Guyana executed Rockliffe Ross in 1996 under similar circumstances.

14 As of 1993, 23 prisoners had been awaiting execution for more than 10 years and 82 prisoners had been waiting more than 5 years. Pratt v. Attorney General of Jamaica, [1994] 2 App. Cas. 1.

15 For a rejection of the death row phenomenon, see the Committee’s decision in Kindler v. Canada, Communication No. 470/1991 (views adopted July 30, 1993), UN Doc. CCPR/C/48/D/470/1991, para. 15.2; and Johnson v. Jamaica, Communication No. 588/1994 (views adopted Aug. 5, 1996), UN Doc. CCPR/C/56/ D/588/1994. In Johnson the Committee articulated several reasons for rejecting the death row phenomenon argument, including that it did not wish to adopt a decision that would encourage states to carry out the death penalty expeditiously. However, a strong minority within the Committee broadly accepts the “death row phenomenon” argument. See especially id., para. 8.1. Most recently, see Bickaroo v. Trinidad and Tobago, Communication No. 155/1993 (views adopted Oct. 29, 1997), UN Doc. CCPR/C/61/D/555/1993, at 8; and LaVende v. Trinidad and Tobago, Communication No. 554/1993 (views adopted Oct. 29, 1997), UN Doc. CCPR/C/61/D/554/1993, at 9.

16 Communication Nos. 270/1988 & 271/1988 (views adopted Apr. 6, 1992), UN Doc. CCPR/C/44/D/ 270/1988 & 271/1988, para. 8.4.

17 The Jamaican decision is one of a growing number of cases around the world to accept arguments based upon the “death row phenomenon.” See, e.g., before the European Court of Human Rights, Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989); before the Supreme Court of Zimbabwe, Catholic Commission for Justice and Peace in Zimbabwe v. Attorney General, 1993 (4) SALR 239; before the Supreme Court of India, Vatheeswaran v. State of Tamil Nadu, [1983] 2 S.C.R. 348; and before the Court of Appeal in Lagos, Nigeria, Nemi v. Attorney General, [1996] 6 Nig. W.L.R. 42.

18 The Judicial Committee of the Privy Council is the ultimate appellate court of several Commonwealth countries, including most of the countries in the Commonwealth Caribbean. It is an advisory body to the British sovereign, but by constitutional convention the sovereign is bound to give effect to its advice.

19 Case 9054 (Pratt v. Jamaica), OEA/ser.L/V/II.66, doc. 10, rev. 1, at 111–13, 276–77 (1984).

20 Pratt and Morgan v. Jamaica, Communication Nos. 210/1986, 225/1987 (views adopted Apr. 7, 1987), UN Doc. CCPR/C/35/D/210/1986 and 225/1987.

21 Pratt v. Attorney General for Jamaica, [1994] 2 App. Cas. 1, 22.

22 In response to this ruling, the Jamaican Government commuted the death sentences of 105 prisoners to life imprisonment and Trinidad and Tobago took the same action in relation to 50 prisoners.

23 Pratt, [1994] 2 App. Cas. at 33.

24 In a later case, Guerra v. Trinidad and Tobago, [1995] 4 All E.R. 583, the Privy Council elaborated on this point by holding that five years was not a strict time limit. In that case, the Court accepted that a delay of 4 years and 10 months was unconstitutional.

25 Even before the official date (January 23, 1998) on which the denunciation of the Optional Protocol became effective, the Jamaican Government announced that executions would resume this year. Guardian (London), Jan. 15, 1998, at 14.

26 Of course, delay caused by petition to international bodies is not the only barrier to lawful execution. Delay in the domestic legal process is a long-standing and serious problem in several countries in the Commonwealth Caribbean. It is caused by a number of factors. In a recent report to Parliament by Trinidad and Tobago’s Attorney General, Ramesh Maharaj, several reasons for delay previously cited by the media and in debate in the Senate were raised, including “inconsistency in sentencing by judges, the lack of judicial accountability and the selection process for making judicial appointments,” as well as “judicial slip ups” injury summations, which have become “a serious cause for concern both for their frequency and what they may reveal about the quality of officers appointed to dispense justice in our courts.” Moreover, the report states that of the 70 cases decided by the Court of Appeal and currently pending before the Privy Council, 23 are still awaiting written reasons for the decision. AG Calls for Less Errors From Judges, Guardian (Trinidad and Tobago), Jan. 25, 1998. Furthermore, should the domestic appeals process be speeded up indiscriminately, serious error might occur, which would in turn give rise to further litigation.

27 Before the Commission, petitions have to be filed within six months from the date on which the party alleging violations of his rights was notified of the final judgment. American Convention on Human Rights, Nov. 22, 1969, Art. 46, 1144 UNTS 123. However, no statute of limitations applies to the Optional Protocol to the ICCPR. A litigant may therefore approach both bodies by approaching the Human Rights Committee after the Commission.

28 Henfield v. Attorney General of the Bahamas, [1996] 3 W.L.R. 1079 (P.C.).

29 Privy Council Appeal No. 53 of 1997 (Dec. 16, 1997).

30 See Governor General’s Instructions, Jamaica Gazette, Aug. 7, 1997 (extra.), at 1.

31 Trinidad and Tobago is in a similar situation to Jamaica regarding the implementation of the death penalty, and has taken a number of steps that mirror Jamaica’s. It has issued similar time limits, see Instructions Relating to Applications from Persons under Sentence of Death, Trinidad and Tobago Gazette, Oct. 13, 1997 (extra.), at 1, and, in May 1998, became the second state ever to withdraw from the Optional Protocol to the ICCPR. At the time of this writing, it is said to be intending to rejoin that agreement with a restriction limiting the Committee’s jurisdiction to cases that do not concern the death penalty. As noted above, Trinidad and Tobago has also withdrawn from the American Convention. Until it withdrew from that Convention, Trinidad and Tobago, unlike Jamaica, accepted the jurisdiction of the Inter-American Court of Human Rights. For Trinidad and Tobago, then, litigation before the Inter-American Court posed an additional potential barrier to the implementation of the death penalty. At the time of writing, it appears that, as in relation to its action on the Optional Protocol, Trinidad and Tobago may rejoin the American Convention with a restriction relating to death penalty cases.

32 Heard on October 10, 1997, during the 97th session of the Inter-American Commission on Human Rights (unreported).

33 Jamaica also appears to be considering trying to solve the Pratt and Morgan problem by redoubling efforts to end the appellate jurisdiction of the Privy Council in favor of a regional court of last resort. The longstanding movement in this regard is gaining force in Jamaica, as well as throughout the Commonwealth Caribbean.

34 See UN Doc. CCPR/C/SR.1623/Add.1 (1997).