In its most recent Communication of Views in relation to Sri Lanka (Weerawansa v Sri Lanka, CCPR/C/95/D/1406/2005, adoption of views, 17-03-2009)), the United Nations Human Rights Committee provides some interesting facets of discussion to the current public debate as to whether the death penalty should be re-implemented. 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. In this Communication of Views however, the Committee opines that the automatic and mandatory imposition of the death penalty has violated a Sri Lankan death row inmate's right to life in terms of Article 6 (1) of the International Covenant on Civil and Political Rights.

The Weerawansa case

The individual communication was submitted by customs officer Anura Weerawansa who had been formally charged on 4 April 2002 of conspiracy to commit the murder of yet another customs officer, Sujith Prasanna Perera. He was also charged of aiding and abetting others to carry out the murder. This was a case which was the centre of fevered public attention at that time with dark stories of conspiracy and counter conspiracy involving well known public names. Consequent to being tried before a Trial-at-Bar and sentenced to death by hanging after being found guilty of the charges, Mr Weerawasa's appeal was dismissed by the Supreme Court. His individual communication before the Committee was submitted in 2005.

It was contended by him that the trial itself was manifestly unfair and arbitrary due to the alleged suppression of witness statements, contradictions in witness evidence, amendment of the indictment during trial, failure to summon certain witnesses, failure to make available to the defence, eye witness statements and the undue detention of witnesses for the purpose of fabricating evidence. In accordance however with earlier jurisprudence that it is generally for the appellate courts of State parties to the Covenant to evaluate facts and evidence in a particular case unless the decision is clearly arbitrary or amounted to a denial of justice, the Committee declined to rule that the claim relating to unfair trial under Article 14 of the Covenant was substantiated.

Interestingly however, this part of the opinion was prefaced with a reminder to Sri Lanka that when ratifying the Optional Protocol permitting the filing of individual communications before the Committee, the government cannot claim that it was never intended for decisions of the appellate courts to be reviewed by the Committee. The Committee observed that all branches of the government, namely executive, legislative and judicial, are in a position to engage the responsibility of a State Party to the Covenant. However, after having asserted this principle, it was affirmed that the material before it in the instant case does not reveal that the conduct of the trial suffered from any clearly arbitrary defect or amounted to a denial of justice.

Clear arbitrariness on the part of the judiciary

Pertinently, this case should be contrasted with examples where clear arbitrariness and denial of justice was, in fact, held to arise from the conduct of Sri Lanka's Supreme Court itself. One prominent example was the case of Anthony Michael Fernando where the Committee opined that the summary sentencing of a lay litigant to one year rigorous imprisonment by a Bench presided over by former Chief Justice Sarath Silva, for talking loudly in court and for filing various motions, amounted to arbitrary arrest violating Article 9(1) of the Covenant (see Anthony Michael Emmanuel Fernando v Sri Lanka, CCPR/C/83/D/1189/2003, adoption of views, 31-03-2005). In contrast, the Weerawansa communication was a trial that involved the evaluation of evidence and in regard to which the Committee's caution in holding a violation of Article 14 of the Covenant was understandable. Further claims that Covenant rights had been violated by the accused not being given the option of a jury trial and that he had prejudiced legal representation were also declared inadmissible.

The Committee however, did declare that the fact of imposition of the death penalty on the author without any possibility of taking into account Mr Weerawansa's personal circumstances or the circumstances of the particular offence violated his right to life. The government's defence that the death penalty had not been carried out for nearly thirty years was not considered to be sufficient answer to this finding. It also found that the conditions of detention under which he was being kept violated the right of all detained persons to be treated with inherent dignity.

Public opinion on the implementation of the death penalty

In 1995, South Africa's Constitutional Court dealt with the death penalty and its validity in terms of the South Africa Constitution in a country where the crime rate is rampant. The Constitutional Court considered 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. In The State v 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 South Africa's Criminal Procedure Act, (and all corresponding provisions of other legislation) sanctioning capital punishment as inconsistent with the Constitution.

Death penalty as deterrence?

The State was forbidden to execute any person already sentenced to death under those provisions and ordered to substitute such sentences with lawful punishments. Importantly, the issue of the death penalty as a deterrence was dealt with in depth. The Court acknowledged the need for strong deterrent to violent crime. However, it was pointed out that 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. The judges observed in a caution relevant to the Sri Lankan context as well that the deficiencies in the criminal justice system precluded the law being afforded sufficient deterrent force. It was by remedying these deficiencies that the State must seek to combat lawlessness and not through the hangman's noose. Strident public opinion one way or another should have limited relevance.

All the ills that beset our criminal justice system

Though this was a judgment specific to the South African legal system, many of the issues raised in this decision as well as in the most recent Communication of Views by the United Nations Human Rights Committee are all reasons as to why compelling and commonsensical thought should be given to the proposal to re-implement the death penalty in this country. It is fatal if this should be thought as an automatic answer for all the ills that beset our criminal justice system.