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Judicial CP - May 1998

Reuters, 4 May 1998

Jamaican court debates future of flogging

By Earl Moxam

KINGSTON, Jamaica, May 4 (Reuters) - Government lawyers on Monday argued for the continuation of flogging, a punishment meted out in Jamaica since the days of slavery.

They were speaking before the Court of Appeal, which began what is expected to be a three-day hearing on two cases that may decide the fate of corporal punishment, long a controversial subject in Jamaica.

A five-man panel was hearing the appeals of Noel Samuda, a laborer, and Walford Ferguson, a farmer, who have each been sentenced to receive 12 strokes with a tamarind switch, in addition to prison sentences.

Ferguson was found guilty in December 1995 of nine charges, including four for rape. Samuda was convicted in October 1996 on charges including rape, possession of a firearm, burglary and larceny. Their crimes were not related.

The two men contend that the flogging sentences constitute inhuman and degrading punishment, in violation of the Jamaican constitution. Ferguson is also serving 25 years and Samuda is serving 15 years.

Lawyers representing the government dismissed claims that flogging -- carried out in Jamaica by a tamarind switch or cat-o'-nine-tails -- represented cruel and inhuman punishment.

They also claimed the Court of Appeal had no jurisdiction in the matter and it should go before the Supreme Court.

Government attorney Douglas Leys argued that Britain's Privy Council decision in a case four year ago, stating that two condemned men could not be executed as they had spent too long on death row, covered the corporal punishment issue when it stated that all forms of punishment remain legally valid in Jamaica.

The Privy Council is the final court of appeal for Jamaicans.

The corporal punishment debate resurfaced in Jamaica four years ago in August 1994 when Justice Carl Patterson sentenced a 23-year-old laborer, Errol Pryce, to four years imprisonment with hard labor and to six strokes of the tamarind switch for felonious wounding.

Pryce had pleaded guilty to wounding Roseta Cameron, his mother-in-law, leaving her crippled and unable to walk. In the attack Pryce punched her in the abdomen and stabbed her with an ice pick in the neck.

Judges in several other cases followed Patterson's lead and imposed similar sentences, in a break with tradition in which no such sentence had been imposed since the mid-1970s.

In 1976 a committee, appointed by then Attorney General, Carl Rattray and chaired by prominent attorney Ian Ramsay, recommended that all laws that permit or relate to flogging or whipping be immediately repealed. This was never done.

The Gleaner, Kingston, 5 May 1998

Lawyers feel Rattray should withdraw

Panel to decide on flogging starts work

Questions were raised yesterday in legal circles as to whether the Hon. Carl Rattray, President of the Court of Appeal, should sit on the five-man panel hearing legal arguments as to whether flogging was inhuman and degrading punishment.

The question stemmed from the fact that in the 1970s, Mr. Justice Rattray, who was then Minister of Justice and Attorney General, had introduced a Bill to abolish flogging.

Lawyers made the queries in relation to the decision by Mr. Justice Patterson, who declined to sit on the panel. Mr. Justice Patterson had re-introduced flogging in August 1994 after a 25-year break and since then, the issue has become a controversial one.

After Mr. Justice Patterson opted not to sit on the panel, he was replaced by Mr. Justice Gordon. Judges have since followed Mr. Justice Patterson's decision and have been ordering flogging particularly in rape cases.

Two inmates are appealing against their sentences of flogging but the court, comprising the President, Mr. Justice Forte, Mr. Justice Gordon and Mr. Justice Bingham and Mr. Justice Paul Harrison, are hearing one of the appeals since the outcome of that appeal will affect the case of the other convict. The appeal being heard is that of Noel Samuda, 30, labourer, of Moravia, Manchester, who was sentenced to 15 years for rape and gun charges. It was also ordered that he should be whipped with the tamarind switch. Samuda is contending his sentence constituted inhuman and degrading punishment and was in breach of section 17(1) of the Constitution.

When the case was mentioned yesterday in the Court of Appeal, Kent Pantry, Q.C., Senior Deputy Director of Public Prosecutions, and Douglas Leys, Senior Assistant Attorney General, took a preliminary point that the Court of Appeal had no jurisdiction to hear the appeal because if the appellants are complaining that their punishment is unconstitutional, then the proper forum was the Supreme Court. It was also argued that the Supreme Court was the only forum vested with authority to hear original jurisdictions.

Mr. Pantry pointed out that if flogging was part of the law before Independence, then the court should not waste judicial time because the issue had already been decided by the United Kingdom Privy Council in the case of Pratt and Morgan. He pointed out that the court should not grant leave to determine an issue which had already been decided by the Privy Council.

Copyright The Gleaner Company Limited, all rights reserved.

The Gleaner, Kingston, 8 May 1998

Court of Appeal will not hear flogging case

By Barbara Gayle
Staff Reporter

By a majority decision, the five-man panel of the Court of Appeal ruled yesterday that it did not have the jurisdiction to hear an appeal that flogging was inhuman and degrading treatment, because the issue has to be determined first by the Supreme Court.

Noel Samuda, a 29-year-old labourer who was sentenced to 15 years for rape and, in addition, to receive 12 strokes of the tamarind switch, had raised the constitutional point. He had asked the court to decide whether his sentence of whipping constituted inhuman and degrading punishment under section 17(1) of the Constitution.

When the appeal came for hearing on Monday, Kent Pantry, Q.C., Senior Deputy Director of Public Prosecutions, and Douglas Leys, Senior Assistant Attorney General, took a preliminary point that the Court did not have the jurisdiction to hear the appeal because the law and the Constitution makes it abundantly clear that matters alleging breaches of the Constitution must first be heard in the Supreme Court. The government lawyers argued that the Court of Appeal did not have original jurisdiction.

Dr. Lloyd Barnett argued that the Court of Appeal could hear the appeal because the Constitution did not state that the Supreme Court had exclusive jurisdiction.

The panel comprising the Hon. Carl Rattray, President of the Court of Appeal, Mr. Justice Forte, Mr. Justice Gordon, Mr. Justice Bingham, and Mr. Justice Paul Harrison, heard the preliminary point; but the president, in handing down the decision, did not say how they were divided in their decision. He said the court will give the reasons in writing at a later date.

The Gleaner learnt that they were divided by three to two in their decision. Mr. Justice Patterson was selected to sit on the panel, but he opted not to sit because he had re-introduced flogging in August 1994 after a 25-year break.

This week some lawyers questioned whether Mr. Justice Rattray should sit on the panel since he had introduced a Bill to abolish flogging in the 1970s when he was then Minister of Justice and Attorney General.

Inter Press Service English News Wire, 14 May 1998

Human Rights

The return of the tamarind switch

By G. Anthony McLaren

KINGSTON, May 13 (IPS) -- Barbados began it first, Trinidad and Tobago came next and four years ago it grabbed the headlines in Jamaica when the whip as a method of punishment for the convicted felon was revived.

Prior to the 1994 episode, when a high court judge in this northern Caribbean island ordered that a 23 year old man be whipped as part of his sentence for stabbing and crippling the mother of his girlfriend, that form of punishment had not been ordered for 25 years.

Now the issue is once again in the news as the courts are now battling over the case of two Jamaican men who ran afoul of the law and for whom the courts have ordered whipping as part of their punishment.

Defense attorneys for the men found guilty of rape are challenging the constitutionality of the 12 lashes "to be shared equally between the two offenders", prescribed by Supreme Court Judge David Pitter.

Human rights activists as well as ordinary Jamaicans are divided in their views on the issue. Some strongly object to this form of punishment, calling it a barbaric reminder of the days of slavery.

Others say it is unconstitutional as the island's constitution states that no person should be subjected to torture or to inhumane or degrading punishment.

Hilaire Sobers, an attorney and human rights advocate describes this form of punishment as "a cruel and inhumane act... the sole objective being to inflict pain."

Other Jamaicans, however, see the issue differently.

"You need to make an example of these people, " says Luke Young, a clerk in an insurance company. "Not only should they go to prison to spend some time there but they should be flogged in public squares ... and the people whom they perpetrated these crimes against, should be given a chance to administer some of the lashes."

Some also argue that the more heinous the nature of the crime committed, the more severe should be the penalty meted out.

Under Jamaican law, "flogging" means "corporal punishment administered with a cat-o-nine tails" while "whipping" means "corporal punishment administered with a tamarind switch".

The cat-o-nine tails is a plaited rope instrument made up of nine thongs of cotton cord 30 inches long and less than one quarter of an inch in diameter.

The thongs are attached to a handle 18 to 20 inches long which the enforcer grips during the exercise. It is the nine cotton thongs that lashes across the back, between the shoulders and the lower area of the spine, resulting in a stinging sensation.

Three strands of switches from a tamarind tree are interlaced to form the Tamarind Switch. Whipping with the use of the switch is administered to the naked buttocks.

It is reported that physical damage is usually skin deep depending on the severity of the beating. In cases where there is a loss of bowel and bladder control, it is usually due to nervousness and stress, rather than as a consequence of any long term damage to these internal organ.

The idea is that when other would-be offenders see this kind of display they will think twice before committing similar crimes.

"Horrendously antiquated is the thinking that by degrading and brutalizing a person who has committed an offense, other would-be perpetrators will be deterred," says Sobers.

Punishment, he says, has to focus on rehabilitation rather than degradation.

Flo O'Connor, a human rights advocate agrees. "It is simply going to release in him (the offender) deep and abiding tides of revenge when he should have left the confines of prison," she says.

Another difficulty Sobers says he has with whipping as a form of punishment is that it is usually prescribed at the discretion of the judge.

"It works some measure of injustice in that some crimes which we might think are deserving of it, we find that it is not imposed.

Others which appear to have gone without it, we think deserved it."

Other observers also argue that the already barbaric environment in Jamaican prisons is graduating hardened criminals and that whipping will not help the situation.

This latest sentence and the reaction to it reflect the debate that periodically has gripped the region as it tries to find ways to halt crime and still appear on the same wavelength as other western countries which have given up on harsh punishment for criminals.

In 1976 a government-appointed committee recommended that flogging as a form of punishment be removed from the statute books. Although the government accepted the recommendation it has made no move to follow through on it.

On the other hand, the majority of Caribbean people remember days when it was safe for a woman to walk unmolested almost anywhere in any country at any time of night.

They long for a return to those days and the present crime spiral across the region has scared many. Last year some 1,084 persons were murdered in Jamaica and since the start of the year more than 300 persons have already been murdered.

Copyright 1998 IPS/GIN. The contents of this story can not be duplicated in any fashion without written permission of Global Information Network

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