ABOLITION OF THE DEATH PENALTY
Professor William A. Schabas
University of Quebec
Montreal, Canada

The Judicial Committee of the Privy Council, which remains the final court of appeal for many members states of the Commonwealth, has declared that detention on death row for five years or more constitutes inhuman treatment. The court's ruling, in Pratt and Morgan v. Attorney General of Jamaica (November 2, 1993 - not yet reported) means that hundreds of prisoners in Jamaica, Trinidad, Mauritius and elsewhere will have their death sentences commuted.

This decision is the latest contribution to case law on a subject that has drawn the attention of international human rights bodies, including the European Court of Human Rights, the Inter-American Commission of Human Rights, the Human Rights Committee, and several domestic courts. Although the Privy Council decision is based on Article 17 of the Jamaican Constitution, this provision was drawn from Article 3 of the European Convention of Human Rights. It finds equivalents in virtually all international human rights instruments and domestic constitutions.

Limitation and abolition of the death penalty promise to be important themes in human rights law during the UN Decade of International Law. In 1991, at the beginning of this special Decade, the Second Optional Protocol to the International Covenant on Civil and Political Rights came into force. That particular Protocol is the first universal instrument to abolish the death penalty. There are also similar norms in the European and Inter-American human rights systems - and at least thirty-seven States are expressly bound and thus committed to multilateral abolition of the death penalty.

According to Amnesty International, not quite half of the UN's members have abolished the death penalty on either a de jure or a de facto basis. The clear trend towards abolition means that by the end of the UN Decade, the majority of the UN's membership should be in this sense "abolitionist."

The Privy Council decision establishes several important points, and distinguishes this ancient court as a tribunal that is in the avant garde of international human rights jurisprudence. The Privy Council sets the threshold for death row detention at a lower point than the European Court in Soering v. U.K. (five years instead of seven).

The Privy Council does not attribute any great weight to individual factors. In Soering, the European Court considered the accused's youth, his mental instability, and his secondary role in the crime as mitigating factors - prompting critics to suggest that it's analysis was easily distinguishable. But the Privy Council's Pratt and Morgan case indicates that even "hard cases" benefit from the strict limits imposed by the Privy Council.

Delay attributable to exhaustion of legal remedies is the responsibility of the State, not the convicted person. On this point, the Privy Council parts paths with the Human Rights Committee and several domestic courts, including those of the United States and Canada.

The importance of decisions by international human rights tribunals is also greatly enhanced by the Privy Council decision. Although considerable reliance is placed on the reasoning of the Inter-American Commission of Human Rights and the Human Rights Committee, the Privy Council indicates that domestic authorities should await examination of matters by such international bodies before taking irrevocable steps. In the past, several States including the United States and Canada have failed to respect orders from interim or provisional measures issued by these bodies. The prestige of the Privy Council decision will perhaps induce governments to give these international bodies greater respect and possibly incite courts to grant injunctive relief in order to ensure the effectiveness of such remedies.

Other important decisions dealing with human rights and the death penalty have been rendered by high courts in Zimbabwe and France in recent months. The Human Rights Committee has at least three such cases before it, and final views are expected in the near future. There will no doubt be occasions for returning to this subject as the UN Decade progresses.