Focus on Rights

The 'right' of the state to kill
The tremendous public interest in the proposal to re-implement the death penalty in Sri Lanka is evidenced by the fact that, on an average, at least three letters to the editor are published in the pages of our newspapers. Public opinion appears to be solidly ranged on the side of the 'bring back the hangman' view. Those who hold opposite views are soundly castigated as abstract intellectuals unmoved by the suffering of the ordinary people.

Interestingly, in a judgement not meant necessarily only for the legal erudite, South Africa's Constitutional Court dealt with similarly emotionally charged questions in 1995. The calmly reasoned manner in which the Court, (in the judgement of its President, Justice Chaskalson), dealt with the death penalty and its validity in terms of the South Africa Constitution in a country where the crime rate is rampant, is useful for informing Sri Lanka's own public debates at this moment in time.

The Constitutional Court was considering appeals by two accused against death sentences upon convictions for murder by a local division of the Supreme Court which had been upheld by the Appellate Division.

The judges of the Constitutional Court were invited to consider whether Section 277(1)(a) of the Criminal Procedure Act No. 51 of 1977, prescribing the death penalty as a competent sentence for murder in South Africa, was consistent with the Republic of South Africa Constitution of 1993. The Constitution had come into force subsequent to the conviction and sentence by the trial court.

Their task was made all the more harder by the fact that the 1993 (transitional) South African Constitution did not specify either that the death sentence is not a competent penalty, or that it is permissible in circumstances sanctioned by law. This is in contrast to the comparable Sri Lankan provisions which specifically allows, (in Article 13(4) of the Constitution), a person to be punished with death provided that it is by order of a competent court, made in accordance with procedure established by law.

In a superbly thought provoking decision however, (The State vs T. Makwanyane and M. Mchunu, Case No CCT/3/94, 6 June, 1995), the Court declared the relevant sub-sections of section 277(1) of the Criminal Procedure Act, (and all corresponding provisions of other legislation) sanctioning capital punishment as inconsistent with the Constitution.

The State was forbidden to execute any person already sentenced to death under those provisions and ordered to substitute such sentences with lawful punishments. In so ruling, the Court, in fact, went beyond international law norms and prohibitions. It also differed from the thinking of the Indian and American Supreme Court judges at that time, constrained as these judges were by their own constitutional provisions.

As compared to Sri Lanka meanwhile, the differences become even more stark. Unlike the Sri Lankan Constitution, Article 9 of the South African Constitution expressly decreed that all pre existing laws inconsistent with the constitutional provisions would, unless otherwise stipulated expressly or by necessary implication, be invalid to the extent of that inconsistency. It was in this context that the particular section of the Criminal Procedure Act was examined for its constitutionality.

Sri Lankan provisions also do not protect a right to life. Though at times, this right has come close to being judicially recognised as underpinning the rights chapter in our Constitution, it has yet not been actually articulated as such. We are bound in international law by the provisions of the International Covenant on Civil and Political Rights which specifically includes the right to life but which also allows the death penalty to be prescribed by law for the most serious crimes.

But the practical reasoning of South Africa's highest court remains relevant for Sri Lanka in many respects. By that time, like in this country, no executions had taken place in South Africa for many years even though over four hundred convicts were then on death row.

The Court was not inclined to hold that the particular section, by itself was arbitrary in that it vested undue and unguided discretion in the judges with regard to sentencing of individuals to death. However, it did amount to cruel, inhuman and degrading treatment in that the carrying out of the death sentence destroys life, which is protected without reservation under Section 9 of the Constitution, it annihilates human dignity which is protected under Section 10, elements of arbitrariness are present in its enforcement and it is irremediable.

Importantly, the issue of the death penalty as a deterrence was dealt with in depth. The arguments were familiar. The spiralling rate of crime made the death sentence an indispensable weapon for combatting violent crime. Once this is brought under control and the country becomes more developed, Parliament could even do away with the death penalty. But for the moment, this was necessary.

Responding, the court acknowledged the need for strong deterrent to violent crime. The State is clearly entitled to take action to protect human life against violation by others. However, to meet these ends, the choice was not between the death penalty and freedom but between the death penalty and life imprisonment. The greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished. In the opinion of the Court, it was that which is presently lacking in South Africa's criminal justice system; and it is at this level and through addressing the causes of crime that the State must seek to combat lawlessness.

Vitally, it was further warned that; " allowing the State to kill will cheapen the value of human life and thus [through not doing so] the State will serve in a sense as a role model for individuals in society." …..Our country needs such role models."

Accordingly, the inherent right of the State to assume extraordinary powers and to use all means at its disposal in order to defend itself when its existence is at stake is wholly distinguishable from an alleged "right" of the State to execute murderers.
The Attorney General had meanwhile urged that the Court take into account the fact that public opinion in South Africa was to the effect that the death sentence should be imposed for extreme cases of murder.

Rejecting this argument, the Court observed that what they had to consider was not public opinion but whether the Constitution allows the sentence. Thus, the new legal order in South Africa required that the courts, through the Constitution, protect the rights of minorities and others who cannot protect their rights adequately through the democratic process.

Equally, the Constitutional Court ruled that the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority. Such a process would then displace its role as an independent arbiter of the Constitution without bowing to the wishes of the majority.

It is unfortunately true that the Sri Lankan Supreme Court, functioning as it does in an entirely different constitutional context as compared to its South African equivalent, cannot be called upon to assume a like role in response to whatever measures that the Government intends taking with regard to the re-introduction of the death penalty. However, this 1995 decision of the Constitutional Court in South Africa offers a compelling and commonsensical logic as to why further serious thought is required before the death penalty is re-implemented in this country.

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