:: by Sheba Augustine ::
“Until we stop harming all other living beings, we are still savages.” -Thomas Edison
On October 9th 2013, Paul Chetram from Florida, St. John, told CC6 News Grenada that he was found guilty of disorderly conduct and assaulting a Police officer and was flogged as punishment. My initial response was extremely emotional, I felt angry and outraged but most of all I felt disappointed. How at this time of widespread awareness of the importance of human rights can we still hold on to the idea that physical violence is an appropriate response by our judicial system to the perpetration of crimes? I wanted to understand how this archaic form of punishment survived slavery and our eventual ‘break’ from colonialism.
I asked myself the following questions:
1. What is the origin of Judicial Corporal Punishment (JCP), in particular whipping and flogging, in the Caribbean?
2. What are the exact rules in our present legislation relating to flogging and whipping?
3. Does Judicial Corporal Punishment amount to a violation of our fundamental rights and freedoms entrenched in the Grenada Constitution?
4. What do International Human Rights bodies have to say about the matter?
5. How do our regional neighbours feel about the retention of JCP?
6. What is the way forward?
Origin of Judicial Corporal Punishment in the Caribbean
Legally sanctioned violence as a response to crime stems back to the days of slavery. The Code Noir, the French system of laws enacted in their Caribbean colonies that applied exclusively to enslaved people prescribed punishments such as branding, beating, hamstringing, cutting off body parts such as ears and death.
Article XXXVIII. The fugitive slave who has been on the run for one month from the day his master reported him to the police, shall have his ears cut off and shall be branded with a fleur de lys on one shoulder. If he commits the same infraction for another month, again counting from the day he is reported, he shall have his hamstring cut and be branded with a fleur de lys on the other shoulder. The third time, he shall be put to death.
Present day laws relating to flogging and whipping
The Criminal Code at section 75 states that the rules relating to flogging and whipping are as follows:
(1) A juvenile offender shall not be sentenced to flogging, but in lieu thereof he may be sentenced to be whipped.
(2) No sentence of flogging or whipping shall be passed upon a female of any age*; but, in lieu of any such sentence, the Court may sentence a female to solitary confinement or any other such additional punishment as the law for the time being permits to be inflicted on a female for an offence against the rules of the prison.
(3) Flogging shall be with a cat of a pattern approved by the Governor-General and a sentence of flogging shall specify the number of strokes, which shall not exceed twelve.
(4) Whipping shall be with a light rod or cane or birch of tamarind or other twigs, and a sentence of whipping shall specify the number of strokes, which shall not exceed twelve.
*It should be noted that the punishment of flogging and whipping can only be inflicted on male persons. This flies in the face of the constitutional guarantee of non discriminatory treatment of the basis of sex under section 13 of the Grenadian Constitution.
The Question of Fundamental Rights and Freedoms
The Constitution is the source of the Fundamental Rights and Freedoms of all Grenadian people. Section 5(1) of the Grenadian Constitution states:
“No person shall be subject to torture or to inhumane or degrading punishment or other treatment.”
The Constitution as states at section 106 that:
“This constitution is the supreme law of Grenada and, subject to the provisions of this constitution, if any other law is inconsistent with the Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.
In the case of Pinder v The Queen, a 2002 Privy Council decision out of the jurisdiction of the Bahamas, five out of the five judges that heard the case agreed that JCP in the form of flogging amounted to cruel, inhumane and degrading treatment or punishment. They acknowledged that the constitution guards against this type of punishment, however, three of the five judges went on to hold, and thereby decide the matter, that it was not unconstitutional despite its violation of the right to not be subject to torture or cruel, inhumane or degrading punishment or treatment. This begs the question, why is a punishment that is violation of a constitutional right not declared as void to the extent of its inconsistency?
Section 5 (2) of the constitutions says this:
“Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorizes the infliction of any description of punishment that was lawful in Grenada immediately before the coming into operation of this Constitution”
Section 75 of the Criminal Code, the section that governs flogging and whipping, was in fact in force immediately before the Grenada constitution came into force and it was a section that described a particular punishment. Therefore it is saved from being held inconsistent with or in contravention of the Constitution and thus is not void based on that ground. The majority in the Privy Council decision in the case of Pinder went on to say that: “Entrenched constitutional rights only prevent the legislature from passing laws in the future which are inconsistent with the rights and freedoms in question.”
The Privy Council is also the final court of appeal for Grenada. This means that the High Court, the Court of Appeal and the Magistrates court are bound by its decisions. Further, if a case challenging the constitutionality of flogging and whipping were to be brought to the Privy Council it is likely that a similar decision would be made, although, the court is not bound by its previous decisions.
Section 5 is an example of specific savings law clause as it directs its focus specifically to punishment. In other jurisdictions the constitution enacts something called a “general savings law clause” which protects all laws in force immediately before the coming into force of the constitution from being challenged on the ground of their inconsistency with the constitution. Saving law clauses were intended to facilitate the transition from pre constitutional to post constitutional laws so as to ensure that laws were not declared void leaving gaps within the legal system from one day to the next. However, in a modern context this reasoning holds little water. In the case of Grenada 39 years have since passed and our legislators have had ample opportunity to re evaluate our laws within the context of the constitution and more specifically our guaranteed fundamental rights and freedoms under our supreme law and weed out any provisions that are an affront thereto.
International Human Rights Perspectives
In its concluding observations to a report submitted by Trinidad and Tobago the United Nations Human Rights Committee remarked in 2000 that it was disturbed to learn that the punishment of flogging and whipping was still in practice as it considered it to be cruel and inhumane punishment that is prohibited under Article 7 of the International Covenant on Civil and Political Rights (ICCPR).
Grenada acceded to the ICCPR in 1991. Acceding to a treaty means that the state agrees to be legally bound by its terms. Therefore in retaining whipping and flogging as a punishment that can be judicially sanctioned, although immune from constitutional scrutiny, is a violation of Grenada’s international obligation to promote human rights.
Unfortunately, the ratification of accession of a treaty does not make it a part of the domestic legal system of a country and therefore, some would argue, cannot be relied on in local courts to be binding. In order for the content of a treaty to become a part of the domestic legal system it must be legislated, i.e, enacted like any other act of parliament.
After the decision of the Privy Council in the above mentioned Pinder Case, Prince Pinder petitioned the Inter American Human Rights Committee for relief against the execution of the sentence of flogging. He again argued that it would constitute a violation of his Human Rights, namely the right to be protected against torture or cruel, inhumane and degrading treatment or punishment guaranteed under Article 5.2 of the American Convention of Human Rights. The Commission decided came to the decision that it was such a violation as alleged by Mr. Pinder and further that the retention of JCP was incompatible with the Bahamas’ international obligation to protect rights guaranteed under the Convention and pre-emportory norms of international law. Pre-emptory norms are those rules of international law that are accepted to exist independently of their inclusion in treaties.
The Commission went on to explain that not only was the physical pain and humiliation of flogging cruel, inhumane and degrading but also the mental anguish that is caused by the anticipation of flogging. In the case of Pinder several years has elapsed since he had been sentenced to be flogged and the time when the committee heard the petition. The committee concluded by holding that JCP is entirely contrary to international standards of Human Rights and could not be considered an appropriate punishment used in sentencing. Although some may argue that the very nature and purpose of punishment is expected to be unpleasant one must bear in mind the purpose of our justice system. Violence as a judicial response sends a powerful message that violence is an acceptable rout to achieving compliance, in this case compliance with the laws of Grenada. However, I would argue that achieving compliance through violence does not address the root of criminal behaviour in a meaningful and sustainable way. To the credit of our legal system the court has in recent years made use of psycho educational interventions that address the causes of criminal behaviour and have found some measure of success.
In a 2012 report from the Jamaica Information Service Senator Lambert Brown was quoted as saying:
“The rout to justice shouldn’t be brutal”
I humbly agree.
Among the Commission’s recommendations was that the sentence be commuted and that legislative measures should be taken to remove the punishment of flogging from the domestic legal system of the Bahamas.
The Nassau Gaurdian reported on 3rd December, 2008 that the Attorney General at the United Nations Human Rights Committee meeting in Switzerland announced that the Bahamian Government intends to repeal legislation permitting JCP. However, to date this has remained just an intention as JCP remains legal in the Bahamas.
In February of 2013 the Jamaican parliament passed the Law Reform (Flogging and Whipping) (Abolition)Act. In a report from the Jamaican Information Service it was said that Cabinet gave the approval for the drafting of the bill in an effort to support the Jamaican “Government’s commitment against torture and international protocols against human rights violations.”
Prior to the coming into effect of the 2013 Act which abolishes whipping and flogging as a sentencing option the last execution of a flogging sentence in Jamaica was in 1997. The Jamaican Minister of Justice, Senator the Honourable Mark Golding, in the same JIS report said that “flogging and whipping are considered cruel, inhumane and degrading punishment under international law.” It is interesting to note that there is some movement in the region to taking active steps to removing JCP from its laws as it is accepted to be a Human Rights violation.
The way forward
It has become the proverbial “truth universally acknowledged” that JCP, specifically, judicially sanctioned flogging and whipping, are violations of the Human Rights guaranteed under several international treaties, international pre-emptory norms and our very own constitution. However, our judicial system is held ransom to the pesky proviso that immunised punishments that were authorised under the law immediately preceding the coming into force of our Constitution.
Grenada can take a leaf out of Jamaica’s book and abolish JCP in the form of flogging or it can go one step further and amend its constitution to keep it from saving pre constitutional punishments. I humbly recommend the latter for the following reason:
In 1984 the Bahamas abolished flogging and whipping as a judicially sanctioned punishment and in 1991 it was re-enacted. The almost natural reaction would be to cry unconstitutionality as this 1991 law was enacted after the coming into force of the constitution. However, the majority decision in the Pinder case held that it did not matter that the law which permitted the punishment was enacted after the coming into force of the constitution because the type of punishment that it enacted was the same as was permitted in pre constitutional Bahamas. In effect what the Privy Council said was that we are free to repeal and re enact colonial forms of cruel, inhumane and degrading punishment that were in effect immediately before the constitution was enacted. However, we dare not come up with creative new ones because those will be subject to constructional scrutiny. The only way to circumvent this dangerous loophole is to amend our constitution to remove the proviso that allows us to hold on to pre constitutional forms of inhumane, cruel and degrading punishments that we can pull out at any time we feel as though we need to put a clamp on crime.
As mentioned earlier in this article saving law clauses in their genesis served the purpose of allowing for a transition from pre constitutional laws to post constitutional laws without losing chunks of our legal system with the scratch of a pen. However 39 years post independence calls for legal reform and conformity with the ethos of our supreme law steeped in the recognition of and respect for fundamental human rights and freedoms.
Sheba Augustine is a Grenadian attorney, creator of the blog Grenada Soul Adventurer and a yogi. She received her Bachelor of Laws from the University of the West Indies and her Legal Education Certificate from the Hugh Wooding Law school. Currently, she practices law at the firm of Hannibal and Duncan Phillip.