Focus on Rights

Celebrating death in the New Year
When the Constitutional Court of South Africa declared comparatively recently, (see The State vs T. Makwanyane and M. Mchunu, Case No CCT/3/94, 6 June, 1995) that 'no court would today uphold the constitutionality of a statute that makes the death sentence a competent sentence for the cutting down of trees or the killing of deer, which were capital offences in England in the 18th century", it did not obviously have the middle eastern jurisdictions in mind.

More to the point, (and perhaps luckily for the judges), they were not faced with Sri Lanka's current excruciating dilemma where three Sri Lankan migrant workers in Saudi Arabia are in imminent danger of being executed after being charged and found guilty of theft.

In the Makwanyane case, South Africa's pre-eminent and highly respected court was called upon to consider whether the death penalty violated the right to life (expressed in unqualified terms in Section 9), the right to dignity (Section 10) as well as amounting to cruel, inhuman or degrading treatment within the meaning of Section 11(2) of the 1993 South Africa Constitution.

In writing the seminal judgement of the court, its President, Justice Chaskalson declared the relevant sub-sections of section 277(1) of the Criminal Procedure Act, (and all corresponding provisions of other legislation) sanctioning capital punishment to be inconsistent with the Constitution. The South African State was further forbidden to execute any person already sentenced to death under those provisions and ordered to substitute such sentences with lawful punishments.

Insofar as the prevalent sentencing of the Saudi Arabian workers is concerned, different factors impact on the case, apart from the essential barbarity of the imposition of the death sentence for a crime such as theft. The case underlines important questions of State responsibility towards its workers as well as the international law framework within which Sri Lanka enters into a relationship with receiving countries to which migrant workers are sent.

Activist groups, both domestically and abroad, have stressed the fact that the three migrant workers were deprived of proper legal representation before their sentencing which would be an automatic reason for retrial, at the very minimum. Though they had been charged with having committed several acts of theft, their degree of involvement in the acts varied, thus constituting a strong basis for clemency to be granted.

Reinforcing this position, a writer to one of Colombo's daily newspapers on Friday refers to an interesting decision of the International Court of Justice (ICJ) in March 2004 where Mexico had been able to win a reprieve for fifty one Mexican nationals who had been on death row in the United States on the basis that they had not received a fair trial due to their not being told of their right to consular assistance.

As in the Sri Lankan case, the Mexicans had been deprived of adequate legal assistance. However, unlike the Mexican government which was able to effectively use Article 36 of the Vienna Convention on Consular Relations and its Optional Protocol concerning the Compulsory Settlement of Disputes, the Sri Lankan government, (even conceding that it can muster the necessary political will), is prevented from similarly appealing to the ICJ due to its non-ratification of the Convention as well as its Optional Protocol. (see 'Vienna Convention and Sri Lankans on Death Row' by Nishan de Mel, The Daily Mirror, Friday, April 8, 2005).

Taking up the case from Hong Kong, the Asian Human Rights Commission has appealed to President Chandrika Kumaratunge to intervene directly in the matter with the Government of Saudi Arabia, pointing out that, if swift remedial action is not taken to save the lives of the men, there would be a gross violation of their right to a fair trial.

In writing to the Law and Society Trust Review recently, (see Volume 14, Issue 201, July 2004) a Sri Lankan scholar, Nura Maznawi reflected on the unpalatable reality that the current foreign employment legal regime in this country does not impose even the most basic duties on receiving countries in respect of protection of migrant workers. She contrasts this in a most unfavourable manner with the Migrant Workers and Overseas Filipinos Act of 1995 which restricts its workers to work in countries where their rights are protected.

From a broader perspective, the Sri Lankan State should contemplate the due ratification of the relevant treaties that guarantee not only the rights and privileges of its diplomats but also the rights of its ordinary citizens and migrant workers. It should also exercise that a sterner ethos in the guaranteeing of basic rights prevail in receiving countries to which migrant workers are sent from Sri Lanka

As this country enters into its traditional New Year season, the imminent execution of these three migrant workers in Saudi Arabia assume an even greater pathos. It would be veritably heinous indeed if the government authorities do not exert themselves in every way possible to redress their pleas and ensure, at the very minimum, their right to a fair trial.

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