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Last Updated: 5 May 2008
“Drug offences, the death penalty, and Indonesia’s human rights obligations in the case of the Bali 9: opinion submitted to the Constitutional Court of the Republic of Indonesia”[1]
Andrew Byrnes, Professor of International Law, Australian Human Rights Centre, Faculty of Law, University of New South Wales
Abstract
In 2005 a number of Australian citizens (known as the “Bali 9”) were convicted of offences under the Narcotics Law of Indonesia in relation to their participation in a drug smuggling operation that was intended to transport a large amount of heroin from Bali to Australia. At first instance they were sentenced to lengthy terms of imprisonment, but on appeal a number of them had their sentence increased to death. Three of those sentenced to death on appeal lodged petitions with the Constitutional Court of Indonesia arguing that the imposition of the death penalty was a violation of the Indonesian Constitution, as well as of Indonesia’s obligations under international human rights treaties. This expert opinion was submitted to the court and addresses two issues of international human rights law which were before the Court: (1) whether the restriction contained in article 51 of the Law on the Constitutional Court of access to the Court to Indonesian citizens only is a violation of Indonesia’s international obligations; and (2) whether the imposition of the death penalty in relation to drug offences is a violation of Indonesia’s obligations under the International Covenant on Civil and Political Rights.
Keywords
Human rights; right to life; arbitrary deprivation of life; death penalty; equality; access to court by foreigners; International Covenant on Civil and Political Rights; International Convention on the Elimination of All Forms of Racial Discrimination; Indonesia; Constitutional Court of Indonesia
SUMMARY OF OPINION
Significance of this case
1. This case a fundamentally important one, not just for the individuals involved and the Indonesian legal system, but also for the Asia Pacific region and the international community more generally. It is the first occasion in over a decade in which the apex court of a major Asian jurisdiction has had the opportunity to examine in depth the question of the death penalty and its legality under international human rights law, taking into account the major developments in human rights law and scientific studies about the supposed deterrent effect of capital punishment.
General
2. As a member of the international community of States, Indonesia is bound by applicable rules of customary international law, as well as by the treaties to which it has become party (including the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination). Under international law a State is obliged to ensure that its constitution, laws and practices are in conformity with its international obligations; the fact that domestic law requires or permits actions which are inconsistent with international obligations is no justification under international law for a failure to fulfil those obligations. (paras 6-8)
3. Customary international law prohibits discrimination on the basis of nationality and Indonesia is obliged to ensure that persons who are not nationals are guaranteed and in fact enjoy the equal protection of the law, equal access to the courts and tribunals, and the right to a remedy for alleged violations of internationally guaranteed human rights.
4. Under the ICCPR and the CERD Convention Indonesia is obliged to ensure that persons who are not nationals enjoy the equal protection of the law, equal access to courts and tribunals, and the right to a remedy for alleged violations of internationally guaranteed human rights. (paras 37-70)
5. These customary international law and treaty obligations are binding on all organs of the Republic of Indonesia, and the actions of the courts of Indonesia, should they fail to do what lies within their power to ensure the enjoyment of those rights, may engage the international responsibility of Indonesia and give rise to liability on the international plane. (paras 7-8)
Interpretation of the UN human rights treaties including the ICCPR – relevance of the views of the UN human rights treaty bodies
6. The considered views of the Human Rights Committee and other UN human rights treaty bodies are viewed by courts and States parties as a highly authoritative and persuasive interpretive source, and should normally be followed. (paras 20-36)
Equality in access to the procedures of the Constitutional Court for non-citizens
7. Under customary international law, the ICCPR and the CERD Convention Indonesia is obliged to ensure that all persons within its jurisdiction – nationals and non-nationals -- enjoy equality before the law and equal protection of the law, without discrimination on the basis of nationality or national origin. (paras 38-54)
8. This obligation specifically includes the duty to ensure to non-nationals the right of access to the courts and tribunals on a basis of equality with citizens, including equal access to procedures before the Constitutional Court as well as to all other courts and tribunals.
9. Equality and non-discrimination in this context requires the identical treatment of citizens and non-citizens in relation to the procedural right to bring cases before the Constitutional Court asserting violations of rights guaranteed to them under the Constitution, unless the State clearly demonstrates that there is an objective and reasonable justification for the distinction between citizens and non-citizens. (para 55)
10. While the Constitution confers rights both on citizens and non-citizens (though some political rights are legitimately confined to citizens), article 51 of the Law on the Constitutional Court appears to deny to non-citizens the right to bring cases before the Constitutional Court in cases in which they allege violations of the Constitution, and in which citizens in the same circumstances would be able to raise the same constitutional challenge. (paras 57-58)
11. There is nothing on the face of the Law on the Constitutional Court which suggests that there is any objective and reasonable justification for the differential treatment of Indonesian nationals and non-Indonesian nationals. Given that it is the most fundamental right of all that is at issue – the right to life of individuals – it is hard to see that there could be any justification put forward that would be acceptable under international law for permitting citizens to claim their constitutional rights but denying that right to non-citizens who have been sentenced under the same laws by the same organs of the State which are subject to the same constitutional limitations. (para 59)
12. Accordingly, if article 51 of the Law on the Constitutional Court were held to be a valid law with the effect of denying to a non-citizen the right conferred on a citizen to challenge the constitutionality of the law under which he has been sentenced to death, this would amount to a violation of Indonesia’s obligations under articles 2, 14, and 26 of the ICCPR, the CERD Convention, and under corresponding rules of customary international law. (paras 59-70)
13. The imposition of a death sentence following proceedings in which the guarantees of article 14 have not been followed, would also amount to a violation of article 6(1) of the ICCPR. (para 71)
14. The denial might also amount to an independent violation of the right to a remedy guaranteed under article 2(3) of the ICCPR. (para 71)
Imposition of the death penalty for drug offences
15. Customary international law and Article 6 of the ICCPR oblige Indonesia to ensure that the right to life of all individuals is protected and that no one is arbitrarily deprived of his or her life.
16. While international law does not absolutely prohibit the imposition of the death penalty, it sees it as an exceptional measure, and there has been a trend supported by the majority of States over the last 50 years towards the abolition of the death penalty, and in particular the limitation of the offences for which it can be imposed. (paras 72-94)
17. Under the ICCPR the imposition of a death sentence will only be lawful if the State can show that the procedural and substantive guarantees set out in that article have been observed. (para 95)
18. Under the ICCPR the death penalty may only be imposed in respect of “the most serious crimes”, a phrase which bears an “autonomous” international meaning. (para 96-99)
19. The practice of the Human Rights Committee makes it clear that “most serious crimes” does not include drug offences (including drug trafficking offences). (paras 100-119)
20. Accordingly, the imposition of the death penalty on persons convicted of drug offences would constitute a violation of Article 6 (2) of the ICCPR. (paras 120-121)
21. The imposition of the death penalty (for drug offences) may be arbitrary in contravention of Article 6(1) of the ICCPR to the extent that it relates on assumptions about the unique deterrent effect of the death penalty, since those assumptions are not borne out by the empirical evidence. (paras 122-137)
***
PART 1: GENERAL
A. INTRODUCTION
3. This report considers two major issues which are before the Constitutional Court:
(a) whether a denial of access to a non-citizen to the Constitutional Court to challenge the constitutionality of a sentence imposed on the non-citizen, when a citizen has the right to bring such proceedings, is consistent with the obligations of the Republic of Indonesia under international law, in particular under the International Covenant on Civil and Political Rights (ICCPR or the Covenant) and the International Convention on the Elimination of All Forms of Racial Discrimination (the CERD Convention); and(b) whether the imposition of the death penalty for offences under articles 80, 81 and 82 of Law of the Republic of Indonesia Number 22 of 1997 on Narcotics is consistent with the obligations of Indonesia under international law, in particular under article 6 of the ICCPR, which guarantees the right not to be arbitrarily deprived of one’s life and which limits the imposition of the death penalty to cases involving “the most serious crimes”.
B. MATERIAL ON WHICH THIS OPINION IS BASED
C. THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND THE INDONESIAN LEGAL SYSTEM FROM AN INTERNATIONAL LEGAL PERSPECTIVE
“Internal law and observance of treaties
A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty . . ..”
“4. The obligations of the Covenant in general and article 2 in particular are binding on every State Party as a whole. All branches of government (executive, legislative and judicial), and other public or governmental authorities, at whatever level -- national, regional or local -- are in a position to engage the responsibility of the State Party. The executive branch that usually represents the State Party internationally, including before the Committee, may not point to the fact that an action incompatible with the provisions of the Covenant was carried out by another branch of government as a means of seeking to relieve the State Party from responsibility for the action and consequent incompatibility. This understanding flows directly from the principle contained in article 27 of the Vienna Convention on the Law of Treaties, according to which a State Party 'may not invoke the provisions of its internal law as justification for its failure to perform a treaty'. Although article 2, paragraph 2, allows States Parties to give effect to Covenant rights in accordance with domestic constitutional processes, the same principle operates so as to prevent States parties from invoking provisions of the constitutional law or other aspects of domestic law to justify a failure to perform or give effect to obligations under the treaty. In this respect, the Committee reminds States Parties with a federal structure of the terms of article 50, according to which the Covenant's provisions 'shall extend to all parts of federal states without any limitations or exceptions'.”
D. INTERNATIONAL HUMAN RIGHTS AND INDONESIA
1. General
“4. The concept of human rights is not new to Indonesia. Indonesian people had to wage a protracted struggle in the course of hundreds of years of colonial rule in order to exercise their right of self-determination, one of the most fundamental of human rights. Indonesia’s commitment to the promotion and protection of human rights in the entire Indonesian territory is derived from Pancasila.. . .
45. . . . [T]he concept of human rights is not new to the Indonesian people. The commitment of the Government of the Republic of Indonesia to the promotion and protection of human rights formally began with the promulgation of the 1945 Constitution. Although it is not as comprehensive as the Universal Declaration of Human Rights of 1948, the 1945 Constitution has guaranteed the human rights of the Indonesian citizens. Therefore, from the constitutional point of view, Indonesia has long recognized the importance of and guaranteed the implementation of human rights values.”
“The promulgation of the 1945 Constitution on 18 August 1945, long before the 1948 Universal Declaration of Human Rights, is an indication of how the founding fathers of Indonesia had already envisaged the paramount importance of human rights promotion and protection, including with respect to the elimination of all forms of racial discrimination.”
“Whereas as a member of the United Nations, the nation of Indonesia has a moral and legal responsibility to respect, execute and uphold the Universal Declaration of Human Rights promulgated by the United Nations, and several other international instruments concerning human rights ratified by the Republic of Indonesia”.
“Indonesia will continue to work and fully cooperate with relevant treaty monitoring bodies through the timely submission of its national reports and implementation of their recommendations.”
“Indonesia will continue to implement its second National Plan of Action 2004-2009 consisting of 146 strategies on human rights of (i) ratification of international instruments (ii) harmonization of domestic laws (iii) education and dissemination (iv) application of norms and standards (v) strengthening of the institutional framework and (vi) monitoring, evaluation and reporting.”
“Indonesia will do its utmost to fully implement all international human rights instrument[s] to which it is party.”
2. The ICCPR and Indonesia
E. INTERPRETING THE ICCPR: RELEVANT SOURCES AND AUTHORITIES
1. Basic principles of treaty interpretation
“Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.”
2. The UN human rights treaty bodies and their output
”It is true that its views are not binding on the state party concerned . . .. The views of the Human Rights Committee acquire authority from the standing of its members and their judicial qualities of impartiality, objectivity and restraint.”[19]
(a) the General comments adopted by the Committee under article 40(4) of the ICCPR (an explanation by the committee of its understanding of the meaning of a particular provision or of cross-cutting themes);[20]
(b) the Concluding observations on the reports of individual countries – these represent the Committee’s assessment after consideration of the State party’s report of where the State falls short in its implementation of the Convention and what steps it needs to take to remedy the situation;
(c) the views or decisions of the Committee adopted in a case submitted under the First Optional Protocol;
(d) the reports produced by individual States parties to the treaties and submitted to the United Nations for review by the Committee; and
(e) the discussions between the Committee and the representatives of States parties during the examination of periodic reports submitted by a State (normally documented in the summary records of the committees, and their annual reports).
The first three categories of documents are of particular importance.
3. The relevance and weight of practice of the UN human rights treaty bodies, and other practice under the treaties
Use of treaty body output by national courts and tribunals
“The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse ... The international conventions and norms are to be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law.”
"In interpreting the Bill of Rights Ordinance considerable assistance can be gained from the decisions of common law jurisdictions with a constitutionally entrenched Bill of Rights (in particular Canada and the United States), from the general comments and decisions of the Human Rights Committee under the ICCPR and the Optional Protocol to the ICCPR, and from the jurisprudence under the European Convention on Human Rights. While none of these are binding, in so far as they reflect the interpretation of articles in the ICCPR and are directly related to Hong Kong legislation, these sources are of the greatest assistance and should be given considerable weight."
“‘General comments’ and ‘views’ [of the Human Rights Committee] should be relied on as supplementary means of interpretation of the ICCPR. Furthermore, contents of an international convention of a similar kind such as the European Convention on Human Rights and jurisprudence under it can also be treated as supplementary means of interpretation of the ICCPR."
"Although the views of the [Human Rights] Committee lack precedential authority in an Australian court, it is legitimate to have regard to them as the opinions of an expert body established by the treaty to further its objects by performing functions that include reporting, receiving reports, conciliating and considering claims that a State Party is not fulfilling its obligations. The Committee's functions under the Optional Protocol to the International Covenant on Civil and Political Rights, to which Australia has acceded (effective as of 25 December 1991) are particularly relevant in this respect. They include receiving, considering and expressing a view about claims by individuals that a State Party to the Protocol has violated covenanted rights. The conclusion that it is appropriate for a court to have regard to the views of such a body concerning the construction of a treaty is also supported by the observations of Kirby J in Johnson v Johnson (2000) 201 CLR 488 at 501-502, and of Katz J in Commonwealth v Hamilton [2000] FCA 1854; (2000) 108 FCR 378 at 387, citing some observations of Black CJ in Commonwealth v Bradley [1999] FCA 1524; (1999) 95 FCR 218 at 237. See also The Queen v Sin Yau-Ming [1992] 1 HKCLR 127 at 141. It is appropriate, as well, to have regard to the opinions expressed in works of scholarship in the field of international law, including opinions based upon the jurisprudence developed within international bodies, such as the Committee."
Use by international courts and tribunals
Status, authority and persuasiveness of the views of the Human Rights Committee
PART 2: DENYING NON-CITIZENS ACCESS TO
THE CONSTITUTIONALCOURT
F. DENIAL TO NON-CITIZENS OF ACCESS TO THE CONSTITUTIONAL COURT AS IMPERMISSIBLE DISCRIMINATION UNDER INTERNATIONAL LAW
THE INDONESIAN LAW RELATING TO ENJOYMENT OF THE RIGHTS TO LIFE BY NON-CITIZENS AND ACCESS TO THE CONSTITUTIONAL COURT
Enjoyment under the Indonesian Constitution of the right to life by non-citizens
“Each person has the right to live and the right to defend his life and existence.”
The reference to “person” in the English version of the text in this and other provisions of this Chapter of the Constitution contrasts strikingly with a small number of rights which are conferred only on “citizens”.[41] These include the rights to obtain equal opportunities in government (Article 28D (3)) and the rights to work and earn a human livelihood (Article 27). It seems clear from the face of the Constitution that the drafters intended to draw a distinction between a small number of rights which would be guaranteed only to citizens, and a range of other fundamental rights which were to be guaranteed to all persons, citizen and non-citizen alike.
Access to the Constitutional Court by non-citizens
41. Article 51 of the Law on the Constitutional Court provides:
“1. Applicants are parties who believe that their constitutional rights and/or authorities are disadvantaged by the issuance of an act, and they are:
(a) individuals, citizens of Indonesia;
(b) union of customary law community, provided it is still alive and in line with the community development and the principles of the Unitary State of the Republic of Indonesia as regulated by law;
(c) public or private legal entities, or
(d) state institutions.”
Human rights and the non-citizen: the general position
“Based on a review of international human rights law, the Special Rapporteur has concluded that all persons should by virtue of their essential humanity enjoy all human rights unless exceptional distinctions, for example, between citizens and non-citizens, serve a legitimate State objective and are proportional to the achievement of that objective. For example, non-citizens should enjoy freedom from arbitrary killing, inhuman treatment, slavery, forced labour, child labour, arbitrary arrest, unfair trial, invasions of privacy, refoulement and violations of humanitarian law. They also have the right to marry, protection as minors, peaceful association and assembly, equality, freedom of religion and belief, social, cultural, and economic rights in general, labour rights (for example, as to collective bargaining, workers’ compensation, social security, appropriate working conditions and environment, etc.) and consular protection. While all human beings are entitled to equality in dignity and rights, States may draw narrow distinctions between citizens and non-citizens with respect to political rights explicitly guaranteed to citizens and freedom of movement.”
“1. Reports from States parties have often failed to take into account that each State party must ensure the rights in the Covenant to “all individuals within its territory and subject to its jurisdiction” (art. 2, para. 1). In general, the rights set forth in the Covenant apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness.
2. Thus, the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. Aliens receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed in the Covenant, as provided for in article 2 thereof. This guarantee applies to aliens and citizens alike. Exceptionally, some of the rights recognized in the Covenant are expressly applicable only to citizens (art. 25), while article 13 applies only to aliens. However, the Committee’s experience in examining reports shows that in a number of countries other rights that aliens should enjoy under the Covenant are denied to them or are subject to limitations that cannot always be justified under the Covenant.
3. A few constitutions provide for equality of aliens with citizens. Some constitutions adopted more recently carefully distinguish fundamental rights that apply to all and those granted to citizens only, and deal with each in detail. In many States, however, the constitutions are drafted in terms of citizens only when granting relevant rights. Legislation and case law may also play an important part in providing for the rights of aliens. The Committee has been informed that in some States fundamental rights, though not guaranteed to aliens by the Constitution or other legislation, will also be extended to them as required by the Covenant. In certain cases, however, there has clearly been a failure to implement Covenant rights without discrimination in respect of aliens.
7. Aliens thus have an inherent right to life, protected by law, and may not be arbitrarily deprived of life. They must not be subjected to torture or to cruel, inhuman or degrading treatment or punishment; nor may they be held in slavery or servitude. Aliens have the full right to liberty and security of the person. If lawfully deprived of their liberty, they shall be treated with humanity and with respect for the inherent dignity of their person. Aliens may not be imprisoned for failure to fulfil a contractual obligation. They have the right to liberty of movement and free choice of residence; they shall be free to leave the country. Aliens shall be equal before the courts and tribunals, and shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law in the determination of any criminal charge or of rights and obligations in a suit at law. Aliens shall not be subjected to retrospective penal legislation, and are entitled to recognition before the law. They may not be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence. They have the right to freedom of thought, conscience and religion, and the right to hold opinions and to express them. Aliens receive the benefit of the right of peaceful assembly and of freedom of association. They may marry when at marriageable age. Their children are entitled to those measures of protection required by their status as minors. In those cases where aliens constitute a minority within the meaning of article 27, they shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practise their own religion and to use their own language. Aliens are entitled to equal protection by the law. There shall be no discrimination between aliens and citizens in the application of these rights. These rights of aliens may be qualified only by such limitations as may be lawfully imposed under the Covenant.”
“The Committee notes with appreciation Finland's actions to advance human rights since consideration of its third periodic report in October 1990. Foremost among these developments are Finland's ratification of the Second Optional Protocol to the Covenant in 1991, the reform of the Finnish Constitution in 1995 to incorporate the provisions of the Covenant and other human rights instruments into the Constitution and to extend the application of fundamental rights to non-citizens as required by article 2(1) of the Covenant.”
THE INTERNATIONAL LAW RELEVANT TO THE DENIAL TO NON-CITIZENS OF ACCCESS TO THE CONSTITUTIONAL COURT
Discrimination under the ICCPR – articles 2(1), 14 and 26
“Article 2
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.”
“Article 14
1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”
“Article 26
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Grounds of prohibited discrimination
“The Committee recalls . . . that a requirement in the law for citizenship as a necessary condition for restitution of property previously confiscated by the authorities makes an arbitrary, and consequently a discriminatory distinction between individuals who are equally victims of prior state confiscations, and constitute a violation of the Covenant.”
The meaning of discrimination under the ICCPR
“7. . . .[T]he term ‘discrimination’ as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.
. . .
13. Finally, the Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.”
Discrimination in the enjoyment of procedural rights
The right of non-citizens to institute constitutional cases in other jurisdictions
“11.3 The right to a fair trial in a suit at law, guaranteed under article 14, paragraph 1, may require that an individual be able to participate in person in court proceedings. In such circumstances the State party is under an obligation to allow that individual to be present at the hearing, even if the person is a non-resident alien. In assessing whether the requirements of article 14, paragraph 1, were met in the present case, the Committee notes that the author's lawyer did not request a postponement of the hearing for the purpose of enabling the author to participate in person; nor did instructions to that effect appear in the signed authorisation given to the lawyer by the author at the airport and subsequently presented by the lawyer to the judge at the hearing of the child custody case. In these circumstances, the Committee is of the view that it did not constitute a violation by the State party of article 14, paragraph 1, that the Oslo City Court did not on its own initiative, postpone the hearing in the case until the author could be present in person.”
The clear implication is that the non-citizen was entitled to the same procedural rights as a citizen, but in this case had failed to invoke his right to appear sufficiently at the appropriate stage.
“6.7 The present reservation, which was entered after the publication of General Comment No. 24, does not purport to exclude the competence of the Committee under the Optional Protocol with regard to any specific provision of the Covenant, but rather to the entire Covenant for one particular group of complainants, namely prisoners under sentence of death. This does not, however, make it compatible with the object and purpose of the Optional Protocol. On the contrary, the Committee cannot accept a reservation which singles out a certain group of individuals for lesser procedural protection than that which is enjoyed by the rest of the population. In the view of the Committee, this constitutes a discrimination which runs counter to some of the basic principles embodied in the Covenant and its Protocols, and for this reason the reservation cannot be deemed compatible with the object and purpose of the Optional Protocol. The consequence is that the Committee is not precluded from considering the present communication under the Optional Protocol.”
While this view was expressed in the context of an Optional Protocol case and involved discrimination between different categories of citizens, it indicates the Committee’s view of the type of differential treatment that may constitute discrimination in procedural rights.
Article 51 and Indonesia’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination
66. States parties to the CERD Convention accept the following obligations:
“Article 2
1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:
(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to en sure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;
. . .
(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists”.
“Article 5
In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
(a) The right to equal treatment before the tribunals and all other organs administering justice . . .”.
“1. In this Convention, the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.
3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.”
“1. Article 1, paragraph 1, of the Convention defines racial discrimination. Article 1, paragraph 2 provides for the possibility of differentiating between citizens and non-citizens. Article 1, paragraph 3 declares that, concerning nationality, citizenship or naturalization, the legal provisions of States parties must not discriminate against any particular nationality;
2. Article 1, paragraph 2, must be construed so as to avoid undermining the basic prohibition of discrimination; hence, it should not be interpreted to detract in any way from the rights and freedoms recognized and enunciated in particular in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights;
3. Article 5 of the Convention incorporates the obligation of States parties to prohibit and eliminate racial discrimination in the enjoyment of civil, political, economic, social and cultural rights. Although some of these rights, such as the right to participate in elections, to vote and to stand for election, may be confined to citizens, human rights are, in principle, to be enjoyed by all persons. States parties are under an obligation to guarantee equality between citizens and non-citizens in the enjoyment of these rights to the extent recognized under international law;
4. Under the Convention, differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim. Differentiation within the scope of article 1, paragraph 4, of the Convention relating to special measures is not considered discriminatory. . .”
CONCLUSION ON DENIAL TO NON-CITIZENS OF ACCESS TO THE CONSTITUIONAL COURT
PART 3: THE DEATH PENALTY AND THE ICCPR
G. INDONESIA’S INTERNATIONAL HUMAN RIGHTS OBLIGATIONS AND THE DEATH PENALTY FOR DRUG OFFENCES
|
|
Completely
abolitionist |
Abolitionist
for ordinary crimes |
Retentionist—
de facto abolitionist
|
Retentionist
|
|
1 January 1999 (194 countries)
|
70
|
11
|
34
|
79
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31 December 2003 (195 countries)
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80
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12
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41
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62
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“Between the drafting of the ICCPR and the present day there has been an enormous change in attitudes towards and state practices as regards capital punishment. Between 1957 and the end of March 2005 the number of abolitionist countries had increased from 19 to 94. Eighty-five of them (90 per cent) had abolished it completely for all offences in all circumstances, in peacetime and wartime, in civil and in military life. At least another 39 countries may be counted as abolitionist de facto (ADF), having not executed any persons for 10 years or more or having committed themselves more recently to cease executions, such as the Russian Federation, Kazakhstan and Kyrgyzstan. Altogether at least 24 – more than half – of these 39 countries appear fully committed never to carry out executions again, even though the death penalty remains for the time-being on their statute books. There were only 61 countries that were known to have executed any persons at all in the past 10 years and have not proclaimed a moratorium on executions – those that might be called ‘actively retentionist’. The pace of this change in recent years has been remarkable . . . In just 16 years the proportion of actively retentionist countries has fallen from 56 to 31 per cent and the abolitionists increased from 28 per cent to 49 per cent.”
“The overall conclusion must be not only of a decline in the numbers of countries with the death penalty on their statute books, but even in the countries that have retained it, a decline in the frequency with which they have recourse to executions. In all but a handful of countries judicial executions take place only rarely. It is clear that the concept of ‘the most serious’ must be interpreted in the light of this movement towards a customary international legal culture that either opposes the death penalty completely or regards it as a sanction to be used only extremely rarely.”
The right to life under international law
“Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”
“[T]he special significance of the right to life is underlined by the adjective ‘inherent’ (‘inhérent’) , which is only used in Art. 6(1), and by the use of the (declaratory) present tense ‘has’ instead of ‘shall have’. With this wording . . . the majority of delegates in the 3d Committee of the [UN General Assembly] sought to give expression to the natural law basis of the right to life.”
“Article 4
1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.”
The right to life, other rights and the death penalty under international law
Approach to interpreting Article 6
The right to life and the death penalty under international law
“In countries which have not abolished the death penalty, capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences.”
The position under the ICCPR
“1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.”
“In these circumstances, it was hardly surprising that in seeking a consensus from countries, most of which still retained capital punishment, it was not possible to define more precisely those offences for which capital punishment could be retained. Certainly some countries would have preferred a clearer enumeration of the crimes for which it would remain permissible to impose the death penalty instead of relying on the concept of ‘most serious’. This is probably because they recognised that ‘most serious’ could be interpreted differently according to national culture, tradition and political complexion – the very antithesis of the notion of an attempt to create a universal declaration and definition of human rights.
It seems to me therefore, that it is not sensible to try to look to the wording of section 6(2) for any help in interpreting the offences to which capital punishment might still be applied in countries that have not abolished it. The term is a product only of its time. It was a ‘marker’ for the policy of moving towards abolition through restriction, nothing more specific than that. Indeed, it was long after section 6(2) had been drafted in 1957 that the General Assembly of the United Nations in Resolution 2857 of 1971 for the first time called specifically for ‘the progressive restriction of the number of offences for which the death penalty might be imposed, with a view to its abolition.’ It is noteworthy too that the resolution had to be repeated – reinforced – in 1977.
The very notion of ‘progressive restriction’ makes it clear that the degree of ‘seriousness’ that would justify the death penalty would need to be evaluated and re-evaluated always in a narrowing of definition until abolition was eventually achieved. In reaching judgements about what would be an acceptable use of the death penalty reference would need to be made not only to changes in the practices of nations as they affected the norms that defined acceptable forms and levels of state punishments, but also to the development of the concept of human rights itself. Just as an almost universally agreed norm has developed that juveniles should be exempted from capital punishment other norms are in process of being established – for example, that where the death penalty is enforced it should never be mandatory, allowing discretion for the circumstances of the case to be considered. Thus, the Human Rights Committee in Carpo v The Philippines (No. 1077/2002) held that the mandatory imposition of the death penalty for the broadly defined offence of murder by Article 48 of the Revised Penal Code of the Philippines violated Article 6 of the ICCPR. The same process of dynamic interpretation must be followed in the interpretation of the concept of ‘most serious’. . . .
[I]n 1984, the Economic and Social Council of the UN published ‘Safeguards Guaranteeing the Protection of the Rights of Those Facing the Death Penalty’. Safeguard 1 stipulated that the scope of the ‘most serious crimes’ ‘should not go beyond intentional crimes with lethal or other extremely grave consequences’. While this was some improvement it hardly went very far, as might be expected when the majority of countries still retained capital punishment at that time. The term ‘other extremely grave consequences’ was particularly open to broad interpretation. The Human Rights Committee of the UN has, of course, stated that this ‘must be read restrictively to mean that the death penalty should be a quite exceptional measure’ and in line with this has, in resolutions and judgments called for it not to be used for non-violent financial crimes, non-violent religious practices or expressions of conscience, for sexual relations between consenting adults, drug related offences, illicit sex, vague categories of offences relating to internal and external security and aggravated robbery where no death ensued.10
Recently, the Human Rights Committee with respect to Vietnam noted that, ‘notwithstanding the reduction of the number of crimes that carry the death penalty from 44 to 29’ it could be imposed for ‘opposition to order and national security violations’, both of which “are excessively vague and inconsistent with Article 6(2) of the Covenant’.
My own view is that countries that retain the death penalty should move to restrict it to the most serious offences of murder and thus I have recommended that Safeguard 1 should now read:
‘In countries which have not abolished the death penalty, capital punishment may be imposed only for the most serious offences of culpable homicide (murder), but it may not be mandatory for such crimes.’”
The principle of autonomous interpretation
“It is clear that a subjective approach to this important issue is not viable, in the sense that a vast array of offences might understandably be classified by any given individual or Government as being among the ‘most serious’. But such an approach would render the relevant international law standard meaningless. As a result a systematic and normatively persuasive response is essential.“
The views of the Human Rights Committee on what constitutes “the most serious crimes”
“6. While it follows from article 6 (2) to (6) that States parties are not obliged to abolish the death penalty totally they are obliged to limit its use and, in particular, to abolish it for other than the ‘most serious crimes’. Accordingly, they ought to consider reviewing their criminal laws in this light and, in any event, are obliged to restrict the application of the death penalty to the ‘most serious crimes’. The article also refers generally to abolition in terms which strongly suggest (paras. 2 (2) and (6)) that abolition is desirable. The Committee concludes that all measures of abolition should be considered as progress in the enjoyment of the right to life within the meaning of article 40, and should as such be reported to the Committee. The Committee notes that a number of States have already abolished the death penalty or suspended its application. Nevertheless, States’ reports show that progress made towards abolishing or limiting the application of the death penalty is quite inadequate.
7. The Committee is of the opinion that the expression ‘most serious crimes’ must be read restrictively to mean that the death penalty should be a quite exceptional measure. It also follows from the express terms of article 6 that it can only be imposed in accordance with the law in force at the time of the commission of the crime and not contrary to the Covenant. The procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal. These rights are applicable in addition to the particular right to seek pardon or commutation of the sentence.”
The position of the Human Rights Committee as reflected in its consideration of State party reports
“The Committee also notes with great concern the increase in the categories of crimes punishable by the death penalty . . . and that the new categories include non-violent and economic infringements. These measures are incompatible with Iraq's obligations under the Covenant to protect the right to life...”.
“In the light of the provision of article 6 of the Covenant, requiring States parties that have not abolished the death penalty to limit it to the most serious crimes, the Committee considers the imposition of that penalty for crimes of an economic nature, for corruption and for adultery, or for crimes that do not result in loss of life, as being contrary to the Covenant....”
“The Committee is particularly concerned about the excessively vague wording of article 4 of the Promotion of Freedom Act, which stipulates that the death penalty may be imposed ‘on a person whose life endangers or corrupts society’ and similar wording in the Great Green Document, thus leading to the imposition in the State party of the death penalty for offences which cannot be characterized as the most serious, including political and economic offences, in violation of article 6, par. 2., of the Covenant. . . .”
“Notwithstanding the reduction in the number of crimes that carry the death penalty, from 44 to 29, the Committee remains concerned with the large number of crimes for which the death penalty may still be imposed. The penalty does not appear to be restricted only to those crimes that are considered as the most serious ones. In this respect, the Committee considers that the definition of certain acts such as opposition to order and national security violations, for which the death penalty may be imposed, are excessively vague and are inconsistent with article 6, paragraph 2, of the Covenant.”
“...The Committee further considers that, in the light of the provision of article 6 requiring States parties which have not abolished the death penalty to reserve it for the most serious crimes, it is contrary to the Covenant to impose the death penalty for crimes which are of an economic nature.”
“...The Committee recognizes that no death sentences have been carried out during the period under review, but is concerned that the death penalty is still being imposed, and that some of the crimes still punishable by the death penalty, such as secession, espionage or incitement to war are loosely defined...
The State party is urged to ensure that the death penalty may be imposed only for the most serious crimes and to consider abolishing capital punishment altogether. . ..”
The position of the Human Rights Committee as reflected in its decisions under the Optional Protocol
“Among the requirements of article 6, paragraph 2, is that capital punishment be imposed only for the most serious crimes, in circumstances not contrary to the Covenant and other instruments, and that it be carried out pursuant to a final judgment rendered by a competent court. The Committee notes that Mr. Cox is to be tried for complicity in two murders, undoubtedly very serious crimes...”
“...The issue that must accordingly be decided is whether the sentence in the instant case is compatible with article 6, paragraph 2, of the Covenant, which allows for the imposition of the death penalty only "for the most serious crimes". Considering that in this case use of firearms did not produce the death or wounding of any person and that the court could not under the law take these elements into account in imposing sentence, the Committee is of the view that the mandatory imposition of the death sentence under these circumstances violates article 6, paragraph 2, of the Covenant.”
“The Committee notes that the mandatory imposition of the death penalty under the laws of Trinidad and Tobago is based solely on the particular category of crime of which the accused person is found guilty. Once that category has been found to apply, no room is left to consider the personal circumstances of the accused or the particular circumstances of the offence. In the case of Trinidad and Tobago, the Committee notes that the death penalty is mandatory for murder, and that it may be and in fact must be imposed in situations where a person commits a felony involving personal violence and where this violence results even inadvertently in the death of the victim. The Committee considers that this system of mandatory capital punishment would deprive the author of his right to life, without considering whether, in the particular circumstances of the case, this exceptional form of punishment is compatible with the provisions of the Covenant. The Committee accordingly is of the opinion that there has been a violation of article 6, paragraph 1, of the Covenant.”
.
“7.4 As to the author's claim that the crime for which he was sentenced to death, namely aggravated robbery in which a firearm was used, is not one of the ‘most serious crimes’ within the meaning of article 6, paragraph 2, of the Covenant, the Committee recalls that the expression ‘most serious crimes’ must be read restrictively and that death penalty should be an exceptional measure. It refers to its jurisprudence in another case concerning the State party, where it found that the mandatory imposition of the death penalty for aggravated robbery with use of firearms violated article 6, paragraph 2 of the Covenant. The Committee notes that the mandatory imposition of the death penalty under the laws of the State party is based solely upon the category of crime for which the offender is found guilty, without giving the judge any margin to evaluate the circumstances of the particular offence. The death penalty is mandatory for all cases of aggravated robbery with the use of firearms. The Committee considers that this mechanism of mandatory capital punishment would deprive the author of the benefit of the most fundamental of rights, the right to life, without considering whether this exceptional form of punishment could be appropriate in the circumstances of his case. In the present case, the Committee notes that, although the victim of the crime was shot in the thigh, it did not result in loss of life and finds that the imposition of death penalty in this case violated the author's right to life protected by article 6 of the Covenant.”
“Although the jurisprudence of the Committee in individual cases primarily relates to mandatory capital punishment, the conclusion has been drawn in its interpretation of the term ‘most serious crimes’ in Art. 6(2), above all in the State reporting procedure, might be confined to intentional killings and the intentional infliction of grievous bodily harm”.
“First, the [Human Rights] Committee has thus far only found cases involving murder not to raise concerns under the most serious crimes provision. Second, it has consistently rejected the imposition of a death sentence for offences that do not result in the loss of life. Third, the Committee’s conclusion that the death penalty may not be mandatory even for murder suggests that a most serious offence must involve, at a minimum, intentional acts of violence resulting in the death of a person. Indeed, the Committee and the Commission have rejected nearly every imaginable category of offence other than murder as falling outside the ambit of the most serious crimes.
53. The conclusion to be drawn from a thorough and systematic review of the jurisprudence of all of the principal United Nations bodies charged with interpreting these provisions is that the death penalty can only be imposed in such a way that it complies with the stricture that it must be limited to the most serious crimes, in cases where it can be shown that there was an intention to kill which resulted in the loss of life.”
The Human Rights Committee, drug offences and the right to life
“With reference to article 6 of the Covenant, the Committee is concerned that under Sri Lankan law, the death penalty may be imposed for crimes such as abetting suicide, drug-related offences, and certain offences against property. Some of these offences do not appear to be the most serious offences under article 6 of the Covenant...”.
“14. The Committee notes with concern that the death penalty is not restricted to the ‘most serious crimes’ within the meaning of article 6, paragraph 2, and is applicable to drug trafficking. The Committee regrets that, despite the amendment in 2003 of the Penal Code, which prohibits imposition of the death penalty on persons below 18 years of age, the State party has not yet withdrawn its declaration to the Covenant on article 6, paragraph 5 (art. 6).
The State party should review the imposition of the death penalty for offences related to drug trafficking in order to reduce the categories of crime punishable by death. The State party should also consider the withdrawal of its declaration on article 6, paragraph 5, of the Covenant.”
“In the light of the above we are forced to conclude that there is a real risk that T. will face a death sentence if he is deported to Malaysia. We are therefore of the opinion that by deporting T. the State party would violate its obligation to ensure his right to life under article 6 of the Covenant...”
CONCLUSION ON DRUG OFFENCES, THE DEATH PENALTY AND
ARTICLE 6(2)
H. OTHER ASPECTS OF THE RIGHT TO LIFE and the DEATH PENALTY
“[265] The death penalty sanctions the deliberate annihilation of life. As I have previously said, it
‘is the ultimate and the most incomparably extreme form of punishment... It is the last, the most devastating and the most irreversible recourse of the criminal law, involving as it necessarily does, the planned and calculated termination of life itself; the destruction of the greatest and most precious gift which is bestowed on all humankind’ (S v Mhlongo [2014] ZASCA 152; 1994 (1) SACR 584(A) at 587 e-g).
This ‘planned and calculated termination of life itself’ was permitted in the past which preceded the Constitution. Is it now permissible? Those responsible for the enactment of the Constitution, could, if they had so wished, have treated the issue as a substantially political and moral issue justifying a political choice, clearly expressed in the Constitution, either retaining or prohibiting the death sentence. They elected not to do so, leaving it to this Court to resolve the issue, as a constitutional issue.
[266] The difference between a political election made by a legislative organ and decisions reached by a judicial organ, like the Constitutional Court, is crucial. The legislative organ exercises a political discretion, taking into account the political preferences of the electorate which votes political decision-makers into office. Public opinion therefore legitimately plays a significant, sometimes even decisive, role in the resolution of a public issue such as the death penalty. The judicial process is entirely different. What the Constitutional Court is required to do in order to resolve an issue, is to examine the relevant provisions of the Constitution, their text and their context; the interplay between the different provisions; legal precedent relevant to the resolution of the problem both in South Africa and abroad; the domestic common law and public international law impacting on its possible solution; factual and historical considerations bearing on the problem; the significance and meaning of the language used in the relevant provisions; the content and the sweep of the ethos expressed in the structure of the Constitution; the balance to be struck between different and sometimes potentially conflicting considerations reflected in its text; and by a judicious interpretation and assessment of all these factors to determine what the Constitution permits and what it prohibits.. . .
[269] [I]t is possible to approach the constitutionality of the death sentence by
a question with a sharper and narrower focus, thus:
‘Does the right to life guaranteed by section 9, include the right of every person, not to be deliberately killed by the State, through a systematically planned act of execution sanctioned by the State as a mode of punishment and performed by an executioner remunerated for this purpose from public funds?’
The answer to that question, is in my view: ’Yes, every person has that right’. It immediately distinguishes that right from some other obvious rights referred to in
argument, such as for example the right of a person in life-threatening circumstances to take the life of the aggressor in self-defence or even the acts of the State, in confronting an insurrection or in the course of War.
[270] The deliberate annihilation of the life of a person, systematically planned by the State, as a mode of punishment, is wholly and qualitatively different. It is not like the act of killing in self-defence, an act justifiable in the defence of the clear right of the victim to the preservation of his life. It is not performed in a state of sudden emergency, or under the extraordinary pressures which operate when insurrections are confronted or when the State defends itself during War. It is systematically planned long after - sometimes years after - the offender has committed the offence for which he is to be punished, and whilst he waits impotently in custody, for his date with the hangman. In its obvious and awesome finality, it makes every other right, so vigorously and eloquently guaranteed by Chapter 3 of the Constitution, permanently impossible to enjoy. Its inherently irreversible consequence, makes any reparation or correction impossible, if subsequent events establish, as they have sometimes done, the innocence of the executed or circumstances which demonstrate manifestly that he did not deserve the sentence of death.
[271] The death sentence must, in some measure, manifest a philosophy of indefensible despair in its execution, accepting as it must do, that the offender it seeks to punish is so beyond the pale of humanity as to permit of no rehabilitation, no reform, no repentance, no inherent spectre of hope or spirituality; nor the slightest possibility that he might one day, successfully and deservedly be able to pursue and to enjoy the great rights of dignity and security and the fundamental freedoms protected in Chapter 3 of the Constitution, the exercise of which is possible only if the ‘right to life’ is not destroyed. The finality of the death penalty allows for none of these redeeming possibilities. It annihilates the potential for their emergence. Moreover, it cannot accomplish its objective without invading in a very deep and distressing way, the guarantee of human dignity afforded by section 10 of the Constitution, as the person sought to be executed spends long periods in custody, anguished by the prospect of being ‘hanged by the neck until he is dead’ in the language of section 279(4) of Act 51 of 1977. The invasion of his dignity is inherent. He is effectively told: ‘You are beyond the pale of humanity. You are not fit to live among humankind. You are not entitled to life. You are not entitled to dignity. You are not human. We will therefore annihilate your life’. (See the observations of Brennan J in Trop v Dulles 356 US 84 at 100).”
[272] It is not necessarily only the dignity of the person to be executed which is invaded. Very arguably the dignity of all of us, in a caring civilization, must be compromised, by the act of repeating, systematically and deliberately, albeit for a wholly different objective, what we find to be so repugnant in the conduct of the offender in the first place (see Furman v Georgia [1972] USSC 170; 408 US 238 at 273 (1972)(Brennan J, concurring)).”
Arbitrariness
“The efficacy of capital punishment as a deterrent against crime, as this review of the literature shows, is still a vexed question among researchers almost thirty years after the publication of Ehrlich’s [...] econometric model. The weight of the research evidence, covering different jurisdictions at different time periods, still favours the ‘no deterrence’ conclusion.”
“Deterrence claims for the death penalty make occasional appearances in the academic literature and more often in the rhetoric of activists and politicians who favour capital punishment, prompting equally ill-informed rebuttals from the anti-lobby. Most informed debate has put the deterrence justification on one side because it provides more heat than light and is essentially a distraction and a political ploy that serves only to raise the hopes of an electorate fearful of crime who are receptive to any solutions on offer.”
“’[T]he issue is not whether the death penalty deters some people, but whether, when all the circumstances surrounding the use of capital punishment are taken into account, it is a more effective deterrent than the alternative sanction: most usually imprisonment for life or very long indeterminate periods of confinement.’ He concludes ’that econometric analyses have not provided evidence from which it would be prudent to infer that capital punishment has any marginally greater deterrent effect than alternative penalties.’ ‘It is futile therefore for such states to retain the death penalty on the grounds that it is justified as a deterrent measure of unique effectiveness.’”
“However, the absence of sufficient controls, when taken in conjunction with the other problems mentioned above, should lean any dispassionate analyst to conclude from the findings to these studies that it is not prudent to accept the hypothesis that capital punishment deters murder to a marginally greater extent than does the threat and application of the supposedly lesser punishment of life imprisonment. Indeed, it is quite incorrect to conclude, when statistically significant negative coefficients have been found, that they constitute proof of deterrence as such. They may be consistent with a deterrent hypothesis, but there are often alternative explanations. ..
It has been astutely pointed out that the data analysed so far ‘are not sufficiently strong to lead researchers with different prior beliefs to reach consensus regarding the deterrent effects of capital punishment’. The implications of this conclusion for policy depend ultimately on moral and political views of what standards of proof are required. Most of those who favour abolition (assuming that they are not opposed to capital punishment under any circumstances) would demand proof that executions have a substantial deterrent effect. . . .”
“[328] It is of course true that there are some penologists, judges, jurists, legislators and other people who believe that death penalty acts as a greater deterrent but it would not be correct to say that they form a large segment of the population. The enlightened opinion in the world, [329] as pointed out by me, is definitely veering round in favour of abolition of death penalty. Moreover, it is not a rational conviction but merely an unreasoned belief which is entertained by some people including a few penologists, judges, jurists and legislators that death penalty has a uniquely deterrent effect. When you ask these persons as to what is the reason why they entertain this belief, they will not be able to give any convincing answer beyond stating that basically every human being dreads death and therefore death would naturally act as a greater deterrent than life imprisonment.
“The evidence on whether the threat of death penalty has a deterrent effect beyond the threat of life sentence is therefore overwhelmingly on one side. Whatever be the measurement yardstick adopted and howsoever sharpened may be the analytical instruments they have not been able to discover any special deterrent effect. Even regression analysis, the most sophisticated of these instruments after careful application by the scholarly community, has failed to detect special deterrent effect in death penalty which is not to be found in life imprisonment.”
“[285] The most plausible argument in support of the submission that the death penalty does satisfy these onerous conditions prescribed by section 33 is the submission that it acts as a deterrent. That argument has dominated perceptions in support of the death penalty, both in South Africa and abroad.
[286] It must readily be conceded that if it could be established that the death sentence does indeed deter the commission of serious offences in respect of which the death penalty is a competent sentence, it would indeed be a very relevant and at least a potentially persuasive consideration in support of its justification in terms of section 33. There are, however, some serious difficulties involved in the acceptance of the proposition that the death penalty is, or ever has been, a demonstrable deterrence.
[287] The legitimacy of the argument must to a substantial degree be premised on an assumption which appears to me to be fallacious and at the least, highly speculative and rationally unconvincing. That assumption is that a criminal, contemplating the commission of a serious offence, weighs the risk that he might be sentenced to death against the risk that he might not be sentenced to death but only to a long term of imprisonment of twenty years or more. The assumption is that he would decide to commit the offence even at the risk of receiving a long term of imprisonment but that if the death sentence was the risk, he would refrain from committing the offence at all. I have serious difficulties with these assumptions. In the first place they are not supported by any empirical evidence or research in this country or abroad. Secondly, this argument attributes to the offender a capacity for reflection and contemplation and a maturity of analysis which appears to me to be unrealistic. Thirdly, and more fundamentally, it ignores what is possibly the real factor in any risk assessment which might activate a potentially serious offender: the risk which he considers is that he will not be caught. If he believed that there was a real risk of being apprehended, charged and convicted he would not willingly assume the prospect of many years of quite punishing imprisonment.
[288] If, as I believe, such offenders commit the crimes contemplated because of a belief that they will probably not be apprehended at all, it is a belief which is regrettably justified. On the information that was common cause in argument before us, sixty or seventy percent of offenders who commit serious crimes are not apprehended at all and a substantial proportion of those who are, are never convicted. The risk is therefore worth taking, not because the death penalty would, in the perception of the offender, not be imposed but because no punishment is likely to result at all. . . . [O]n the available evidence, it is facile to assume that the retention of the death penalty will provide the deterrence which is clearly needed. I have analysed such statistics as were debated in argument. In comparisons between States in the United States of America which retained the death penalty and those which did not, there is no manifest proof that the rate of serious crime was greater in the States which did not sanction capital punishment. In the case of those which did abolish capital punishment, there was no convincing proof that the rate of serious crime was greater after such act of abolition . . .
[289] Following a survey of research findings the United Nations concluded that -
"this research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment - such proof is unlikely to be following. The evidence as a whole still gives no possible support to the deterrent hypothesis". (United Nations: The Question of the Death Penalty and the New Contributions of Criminal Science to the Matter (1988) at 110).
. . .
[293] Bringing to bear upon the issue, therefore, a rational and judicial judgment, I have not been persuaded that the fear of the death penalty rationally or practically operates as a demonstrable deterrent for offenders seeking to perpetrate serious crimes. It remains, for the reasons I have previously discussed, an impermissibly cruel invasion of rights, the sustenance of which is fundamental to a defensible civilization, protected in South Africa by the ethos of a Constitution, which is manifestly humanistic and caring in its content.
. . .
[295] On a judicial application of all the relevant considerations and the facts made available to us, I therefore cannot conclude that the State has successfully established that the death penalty per se has any deterrent effect on the potential perpetrators of serious offences.”
Judicial consideration of the death penalty in the region
“A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”
“in [the] rarest of rare cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.”
PART 4: CONCLUSION
I. CONCLUSION
146. The analysis set out above shows that, in my opinion:
(a) the denial to a non-citizen of access to the Constitutional Court to challenge the constitutionality of the law under which he has been sentenced to death, would constitute a violation of Indonesia’s international legal obligations under customary international law, the ICCPR and the CERD Convention to ensure equality and non-discrimination; and(b) the imposition of the death penalty for drug offences would not be consistent with Indonesia’s obligations under the ICCPR not to impose the death penalty for offences other than “the most serious offences”, and would also arguably violate the prohibition on the “arbitrary” deprivation of life.
***
[1] This is a revised
version of the Opinion submitted to the Constitutional Court of the Republic
Indonesia in April 2007 (Andrew Byrnes,
Opinion on International Legal Issues
arising out of proceedings before the Constitutional Court to challenge the
constitutionality
of provisions of the Narcotics Law authorising imposition of
the death penalty, 23 April 2007). The revisions involve the omission of
material relating to the qualifications of the author as an expert witness.
I
would like to express my thanks to Ms Julia Mansour, law student at the UNSW
Faculty of Law, for her assistance with the research
on which this opinion is
based. The opinion was prepared at the request of the legal advisers for Scott
Rush, one of the petitioners
in the
case.
[2] Jakarta:
Secretariat General,
2003.
[3] English
version published by the National Narcotic Board), available at http://www.aseansec.org/Law%20of%20the%20Republic%20of%20Indonesia%20Number%2022,%20Year%201997%20on%20Narcotics.doc
(visited 20 March
2007).
[4] Unofficial
translation available at
http://hrli.alrc.net/mainfile.php/indonleg/133/
[5]
http://www.indonesia-ottawa.org/indonesia/law_treaties.php
(unofficial translation) (visited 14 April 2007)
[6] See Articles on
State Responsibility, arts
12-15
[7] Article
2(2) of the ICCPR makes specific provision for this obligation in the context of
that treaty.
[8] See
International Law Commission, Articles on State Responsibility (2001),
article 4:
“Article 4
Conduct of organs of a State
1. The conduct of any State organ shall be considered an act of that State under
international law, whether the organ exercises legislative, executive, judicial or any other
functions, whatever position it holds in the organization of the State, and whatever its
character as an organ of the central government or of a territorial unit of the State.”
See International Court of Justice, Difference relating to immunity from legal process of a Special
Rapporteur of the Commission on Human Rights, Advisory Opinion of 29 April
1999 (failure by Malaysian courts to recognize immunity from suit of a UN
special rapporteur following
executive’s failure to inform it of UN
Secretary-General’s views on the matter gave rise to a violation of
Malaysia’s
international
obligations).
[9]
Human Rights Committee, General comment 31, para
4
[10] UN Doc
CAT/C/47/Add.3, at paras 4 and 45
(2001)
[11] UN Doc
CERD/C/IDN/3, at para 94 (2006)
[12] Convention (No
105) concerning the Abolition of Forced Labour, ratified by Law No. 19 of 1999;
Convention (No 138) concerning Minimum
Age for Admission to Employment, ratified
by Law No 20 of 1999; Convention (No 111) concerning Discrimination in Respect
of Employment
and Occupation, ratified by Law No 21 of 1999; Convention (No 87)
concerning Freedom of Association and Protection of the Right to
Organize,
ratified by Presidential Decree No 83 of 1998; Convention (No. 100) concerning
Equal Remuneration, ratified by Law No 80
of 1957; Convention (No 98) concerning
Right to Organize and Collective Bargaining, ratified by Law No 18 of 1956;
Convention (No
29) of 1930 concerning Forced Labour, ratified by Staatsblad No
261
of 1933.
[13]
Commitment and voluntary pledges of Indonesia in the field of Human
Rights, Diplomatic Note No 306/SOC-101/IV/06 from the Permanent Mission of
the Republic of Indonesia to the United Nations New York to the
Secretariat of
the United Nations General Assembly, 28 April 2006, pp 2, 3, available at http://www.un.org/ga/60/elect/hrc/indonesia.pdf
(visited 12 April
2007)
[14] It was
on that date that Indonesia, as a matter of international law, became formally
legally bound as a matter of treaty law by
the all obligations it has accepted
under the ICCPR, although most of these would in any case have already been
binding on Indonesia
as part of customary international
law.
[15] As of 13
March 2007, there were 109 States parties to the First Optional
Protocol.
[16] As
of 13 March 2007, there were 60 States parties to the Second Optional
Protocol.
[17]
Other important sources include interpretations by the International Court of
Justice or other judicial bodies of the relevant provisions,
the interpretation
by regional human rights bodies of similar guarantees in regional treaties on
human rights, eg the judgments of
the European and Inter-American Courts of
Human Rights, and the African and Inter-American Commissions. The decisions of
national
courts may also prove useful. Many of these are readily available
on-line through the World Legal Information Institute: www.worldlii.org.
[18] Tangiora v
Wellington District Legal Services Committee [1999] UKPC 42; [2000] 1 NZLR 17, at 21 (Privy
Council)
[19] See
also the judgment of Judge Robert (dissenting as to the result) in Gosselin v
Quebec, Quebec Court of Appeal, 23 April 1999, at 223, referring to the
output of the counterpart of the Human Rights Committee under the
International
Covenant on Economic, Social and Cultural Rights:
"Notons que si les conclusions et recommandations du Comité n'ont pas de caractère contraignant, elles n'en refletent pas moins l'opinion du seul organ d'experts chargé de faire des declarations de cette nature."
[20] The General comments and General recommendations adopted by the various committees up until mid-2006 have been consolidated in UN Doc HRI/GEN/1/Rev 8 (2006), available at http://www.ohchr.org/english/bodies/icm-mc/documents.htm.
[21]
Interim report on the impact of the United Nations treaty bodies on the work
of national courts and tribunals, in International Law Association,
Report of the Seventieth Conference, New Delhi (2002) 507-555; Final
report on the impact of the United Nations treaty bodies on the work of national
courts and tribunals, in International Law Association, Report of the
Seventy-First Conference, Berlin (2004) 621-687. Both reports are available
through the ILA website: www.ila-hq.org
(Committees/List of Committees/International Human Rights Law and
Practice/Download 2002/2004 Conference
Report).
[22]
Maria v McElroy, 68 F Supp 2d 206, 232 (EDNY 1999) ("The Human Rights
Committee's General Comments and decisions in individual cases are recognized as
a major source
for interpretation of the ICCPR." (referring to
Aumeerudy-Cziffra v
Mauritius)).
[23]
Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385, at 461
(New Zealand Court of Appeal, Smellie J) ("I agree also that the United Nations
Human Rights Committee cases are
persuasive")
[24]
Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385, at 405
(New Zealand Court of Appeal, Eichelbaum CJ) ("a decision of the HRC must be of
considerable persuasive
authority")
[25]
Quilter v Attorney General [1997] NZCA 207; [1998] 1 NZLR 523, at 577 (New Zealand Court
of Appeal, Tipping J) "Thus, while in no way binding, the committee's approach
to the concept of discrimination
is of direct relevance to New Zealand
jurisprudence on the
subject.")
[26]
A and B v Regierungsrat des Kantons Zürich, Judgment of 22
September 2000, § 2(g), Swiss Federal Supreme Court (Bundesgerichtf)
("Diese Stellungnahmen sind zwar für die Auslegung und Rechtsentwicklung
von Bedeutung, können aber keine direkte Verbindlichkeit
beanspruchen")
(referring to the General comments and recommendations of the Committee
on Economic, Social and Cultural
Rights).
[27]
Northern Regional Health Authority v Human Rights Commission [1998] 2
NZLR 218, at 235 (High Court of New Zealand, Cartwright J)(quoting the
Bloemfontein Statement 1993, para
8).
[28]
Residents of Bon Vista Mansions v Southern Metropolitan Local Council
(2002) 6 BCLR 625, at 629, paras 17-18 (South Africa, High Court Witwatersrand,
Local Division) (referring to General Comment No 12 of the Committee on
Economic, Social and Cultural
Rights
[29] For
many examples, see the reports of the ILA Committee on Human Rights,
supra note 21.
[30]
AIR 1997 SC 3011, at 3015, (1998) 3 BHRC
261
[31] R v Sin
Yau-ming (1991) 1 HKPLR 88, at 107, [1992] 1 HKCLR 127, at 141. See also the
opinion of the Privy Council on appeal from the Hong Kong Court of Appeal in
Fok Lai Ying v Governor in Council and others (1997) 7 HKPLR
327.
[32] Yuji
Iwasawa "The Domestic Impact of International Human Rights Standards: The
Japanese Experience" in Philip Alston and James Crawford
(eds), The Future of
the UN Human Rights Treaty System (Cambridge: Cambridge University Press,
2000). at 257-265. See also the Judgment of 27 March 1998, Kyoto District
Court, 45 SHOMU
GEPPO 1259 (stating that '"views" and the like [General
comments] of the HRC do not legally bind Japanese courts . . . [they] are at
most only taken into account as opinions on the level of facts');
Judgment of 15
October 1999, Osaka High Court, 1718 HANREI JIHO 30 (stating that "[general]
comments of the Human Rights Committee
do not legally bind the interpretation of
the ICCPR and the ICESCR by Japanese
courts")..
[33]
Id at
259.
[34]
Minister for Immigration & Multicultural & Indigenous Affairs v Al
Masri [2003] FCAFC 70, at para 148 (15 April 2003), http://www.austlii.edu.au/au/cases/cth/FCAFC/2003/70.html.
See also Kirby J in Minister for Immigration and Multicultural and Indigenous
Affairs v B [2004] HCA 20, at paras
147-155.
[35] See
generally Anne F Bayefsky, International Human Rights Law: Use in Canadian
Charter of Rights and Freedoms Litigation (Toronto: Butterworths,
1992)
[36] Masykur
Abdul Kadir, Cs 013/PUU-I/2003 [2004] IDCC 57 (23 July 2004), available at http://www.asianlii.org/id/cases/IDCC/2004/57.html
(visited 14 April
2007)
[37] Lembaga
Studi dan Advokasi Masyarakat (ELSAM), Komisi untuk Orang Hilang dan Korban
Kekerasan (Kontras), Solidaritas Nusa Bangsa
(SNB), Inisiatif Masyarakat
Partisipatif untuk Transisi Berkeadilan (Imparsial), Lembaga Penelitian Korban
Peristiwa 65, LPKP 006/PUU-IV/2006
[2006] IDCC 28, para 121, available at http://www.asianlii.org/id/cases/IDCC/2006/28.html
(visited 14 April 2007)
[38] Final report on the impact of the United Nations treaty bodies on the work of national courts and tribunals, in International Law Association, Report of the Seventy-First Conference, Berlin (2004) 621 at 662-657, paras 116-155.
[39] For example,
in its advisory opinion of 9 July 2004 on the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, the Court made
reference to case law of the Human Rights Committee under the Optional Protocol,
proceedings before the Committee
and its concluding observations on Israel, and
the Committee’s General comment No 27, as well as to the concluding
observations of the Committee on Economic, Social and Cultural Rights on Israel:
paras 109, 110, 112
and 136.
[40] Although it
should be said that some States have on occasion taken issue with an
interpretation adopted by a committee in an individual
case against
them.
[41] The same
distinction appears in Law No 39 of 1999 concerning Human Rights. That Law,
which is modelled very closely on the provisions
of the ICCPR, the ICESCR and
the Convention on the Rights of the Child, confers most rights on
“persons” or “everyone”,
while limiting some rights to
“every citizen” (for example, Articles 25, 27, 38, 43 and
44).
[42] See, for
example, the Concluding observations of the Human Rights Committee on the
combined fourth and fifth periodic reports of Sri Lanka under the ICCPR, UN
Doc CCPR/CO/79/LKA (2003):
7. While taking note of the proposed constitutional reform and the legislative review project currently being undertaken by the National Human Rights Commission, the Committee remains concerned that Sri Lanka's legal system still does not contain provisions which cover all of the substantive rights set forth in the Covenant, or all the necessary safeguards required to prevent the restriction of Covenant rights beyond the limits permissible under the Covenant. It regrets in particular that the right to life is not expressly mentioned as a fundamental right in chapter III of the Constitution of Sri Lanka, even though the Supreme Court has, through judicial interpretation, derived protection of the right to life from other provisions of the Constitution. It is also concerned that contrary to the principles enshrined in the Covenant (e.g. the principle of non-discrimination), some Covenant rights are denied to non-citizens without any justification. It remains concerned about the provisions of article 16, paragraph 1, of the Constitution, which permits existing laws to remain valid and operative notwithstanding their incompatibility with the Constitution's provisions relating to fundamental rights. There is no mechanism to challenge legislation incompatible with the provisions of the Covenant (arts. 2 and 26). It considers that a limitation of one month to any challenges to the validity or legality of any "administrative or executive action" jeopardizes the enforcement of human rights, even though the Supreme Court has found that the one-month rule does not apply if sufficiently compelling circumstances exist.”
See also Human Rights Committee, Concluding observations of the Human Rights Committee: Switzerland, 12 November 2001, UN Doc CCPR/CO/73/CH , at para 15.
“...The State party should review its policies in relation to distinctions between citizens and aliens and between different categories of aliens, in particular in respect of those who do not have papers and spouses of foreigners with residence permits, in order to ensure that the rights of such persons under the Covenant are respected and ensured (articles 2,3,9,12,17 and 23).”
[43] Inter-American Court of Human Rights, Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, 17 September 2003, paras 97-101.
[44]
“Executive summary”, Final report of the Special Rapporteur, Mr
David Weissbrodt on the rights of non-citizens, UN Doc E/CN.4/Sub.2/2003/23,
at p 2.
[45] UN Doc
CCPR/C/79/Add.91
(1998)
[46] While
article 2(1) in the English version of the Covenant uses the word
“distinction’ rather than “discrimination”
(the term
used in article 26 of the ICCPR and the corresponding article 2(2) of the
ICESCR) , it is well-accepted that what is meant
is
“discrimination”, that is an unjustifiable or arbitrary distinction.
See Nowak, U.N. Covenant on Civil and Political Rights (Kehl, N P Engel,
2nd rev ed 2005),
44-45.
[47]
Communication No 196/1985, views of 3 April 1989, paras 9.4 and
9.5
[48]
Communication No 747/1997, views of 30 October 2001, para
8.4
[49]
Communication No 965/2000, views of 4 April
2002
[50]
Communication No. 767/1997, views of 26 April 2000, UN Doc CCPR/C/68/D/767/1997
(2000)
[51]
Kennedy v Trinidad and Tobago, Communication No 845, decision on
admissibility, para 6.7 (31 December
1999)
[52] See the
approach of the High Court of Fiji in constitutional case brought by a
non-citizen in extradition proceedings in which the
applicant had been denied
legal aid because he was a non-citizen. The Court wrote:
“Fiji having adopted the provisions of the Universal Declaration of Human Rights (UDHR) cannot just pay lip service to such provisions. I agree with Mr. Ratuvili that the Bill of Rights applies to all persons who are in Fiji and [is] not limited to citizens of Fiji. If persons are within the jurisdiction either as citizens or visitors, these provisions apply. A person who is in Fiji is subject to its laws. He is bound to obey its laws. He cannot just ignore our laws. Equally a person who is subject to our laws is entitled to the protection of our laws regardless of where he/she is from. I am fortified in my view because wherever rights were to be confined to citizens of Fiji, the word citizen is used in those sections of the Bill of Rights provisions. Section 34(1) speaks of rights of citizens to enter and remain in Fiji and subsection (2) talks of rights of citizens to [a] passport.
To read the word ‘person’ as a citizen is to unnecessarily restrict the meaning.”
Lyndon v Legal Aid Commission [2003] FJHC 323. Fiji is a party to the CERD Convention, but not to the ICCPR.
[53] “Status of the death penalty at the beginning and end of the five-year survey period, 1999-2003”, Capital punishment and implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty, Report of the Secretary-General, UN Doc E/2005/3, para 40, Table 1.
[54] Roger Hood,
“The Enigma of the ‘Most Serious’ Offences”, NYU Center
for Human Rights and Global Justice Working
Paper, Extradjudical Executions
Series, No 9, 2006, at 4-5, available at http://www.nyuhr.org/docs/WPS_NYU_CHRGJ_Hood.pdf
(visited 24 March
2007)
[55] UN Doc
A/2929, Chap VI, para 1, cited in Marc Bossuyt, Guide to the “Travaux
Préparatoires” of the International Covenant on Civil and Political
Rights (Dordrecht: Maritnus Nijhoff, 1987), 115.
[56] General
comment 6, para 1; General comment 14, para
1.
[57] Nowak,
supra note 46, at
121
[58] Id
at 122
[59] The
other rights are the right not to be subjected to torture or to cruel, inhuman
or degrading treatment or punishment (Article
7), the right not to be subjected
to slavery or servitude (Article 8), the right not to be imprisoned for debt
(Article 11), the
prohibition of retroactive criminal laws (Article 15), right
to recognition as a person before the law (Article 16), and freedom
of thought
conscience and religion (Article
18).
[60] Nowak,
supra note 46,at
127
[61] Id
at 127-131
[62] In
November 2006 the Thanh Tien News reported that the Vietnamese
parliamentary commission “has admitted that the death penalty is failing
to deter crime, despite
the large number of people executed for drug-related
offences each
year.:
http://asiadeathpenalty.blogspot.com/2006/11/viet-nam-death-penalty-not-deterring.html
[63]
See Nowak, supra note 46, at
134-135.
[64] It
should also be said that challenges to the death penalty as such on these
grounds have been rejected in recent years by a number
of courts, including the
Court of Appeal of Singapore (relying on a Privy Council decision that is 25
years old), the Supreme Court
of the Philippines, and the Supreme Court of
India.
[65] [1995] ZACC 3; 1995
(3) SA 391, 1995 (6) BCLR 665 (Constitutional Court of South Africa)
[66] CHR resolution
2005/59, paras 4(a) and (b), and 3(b). The Commission has passed other
resolutions to similar
effect.
[67]
E/2000/3, para
79
[68] CHR
resolution 2005/59, para
7(f).
[69] Nowak,
supra note 46, at
141
[70] Report of
the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip
Alston, UN Doc A/HRC/4/20, para 40 (2007)
[71] UN Doc
A/53/40, para 99
(1998)
[72] UN Doc
A/48/40, para 255
(1993)
[73] UN Doc
CCPR/C/79/Add 101
(1998)
[74] UN Doc
CCPR/CO/75/VNM, para 7, A/57/40, vol I,
(2002)
[75] UN Doc
CCPR/C/79/Add 1, para 5
(1992)
[76] UN Doc
CCPR/C/79/Add 116, para 14
(1999)
[77]
Communication No 539/1993, views of 31 October 1994, para
16.2
[78]
Communication No 390/1990, views of 31 October 1995, para
7.2
[79]
Communication No 845/1998, views of 26 March 2002, para
7.3
[80]
Communication No 1132/2002 , views of 18 October 2005, UN Doc
CCPR/C/85/D/1132/2002 (2005) (footnotes
omitted)
[81]
Nowak, supra note 46, at
142
[82] Report of
the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip
Alston, UN Doc A/HRC/4/20, paras 52-53
(2007)
[83] UN Doc
A/50/40, vol I, para. 449
(1995)
[84] UN Doc
CCPR/CO/84/THA, para 14
(2005)
[85]
Communication No 706/1996 , views of 4 November 1997, UN Doc
CCPR/C/61/D/706/1996
[86]
[1995] ZACC 3; 1995 (3) SA 391, 1995 (6) BCLR 665 (Constitutional Court of South Africa)
[87] There are
other grounds which have sometimes been advanced to justify the death penalty
(such as retribution) which are not dealt
with in this Opinion. However, these
grounds too have been rejected by the leading recent constitutional cases in
which the death
penalty has been held to be unconstitutional.
[88] As the
President of the South African Constitutional Court, Justice Chaskalson,
commented in S v Makwanyane, at para 123:
“In the debate as to the deterrent effect of the death sentence, the
issue is sometimes dealt with as if the choice to be made
is between the death
sentence and the murder going unpunished. That is of course not so. The choice
to be made is between putting
the criminal to death and subjecting the criminal
to the severe punishment of a long term of imprisonment which, in an appropriate
case, could be a sentence of life imprisonment. Both are deterrents, and the
question is whether the possibility of being sentenced
to death, rather than
being sentenced to life imprisonment, has a marginally greater deterrent effect,
and whether the Constitution sanctions the limitation of rights affected
thereby.”
[89]
How this relates to the onus of proof in a constitutional case involving
a challenge to a law is a matter of domestic constitutional law. Generally,
there is an initial presumption of constitutionality,
but given the importance
of the right to life and the provisions of Article 28I(1) providing that it
shall not be limited “under
any circumstances”), there may be an
argument that either the Government bears the onus, or that the presumption of
constitutionality
is easily displaced where the right is a fundamental one and
the effect of the prima facie infringement severe. A majority of the
Supreme
Court of India in Bachan Singh v State of Uttar Pradesh [1982] INSC 62; [1983] 1 SCR 145;
[1982] 3 SCC 24; AIR 1982 SC 1325 took the view in a challenge to the death
penalty that an initial presumption of constitutionality applied, which had to
be rebutted
by the person challenging the statute. The former Chief Justice of
India, Justice P N Bhagwati, dissenting on this point and in the
result,
expressed the view (SCR at 265)
“What the learned Judge said was that there is always a presumption in favour of the constitutionality of a statute and the court will not interfere unless the statute is clearly violative of the Fundamental Rights conferred by Part III of the Constitution. This is a perfectly valid statement of the law and no exception can be taken to it. There must obviously be a presumption in favour of the constitutionality of a statute and initially it would be for the petitioners to show that it violates a Fundamental Right conferred under one or the other sub-clauses of clause (1) of Article 19 and is therefore unconstitutional, but when that is done, the question arises, on whom does the burden of showing whether the restrictions are permissible or not, lie?
Obviously therefore, when a law is challenged on the ground that it imposes restrictions on the freedom guaranteed by one or the other subclause of clause (1) of Article 19 and the restrictions are shown to exist by the petitioner, the burden of establishing that the restrictions fall within any of the permissive clauses (2) to (6) which may be applicable, must rest upon the State. The State would have to produce material for satisfying the court that the restrictions imposed [294] by the impugned law fall within the appropriate permissive clause from out of clauses (2) to (6) of Article 19. Of course there may be cases where the nature of the legislation and the restrictions imposed by it may be such that the court may, without more, even in the absence of any positive material produced by the State, conclude that the restrictions fall within the permissible category, as for example, where a law is enacted by the legislature for giving effect to one of the Directive Principles of State Policy and prima facie, the restrictions imposed by it do not appear to be arbitrary or excessive. Where such is the position, the burden would again shift and it would be for the petitioner to show that the restrictions are arbitrary or excessive and go beyond what is required in public interest. But, once it is shown by the petitioner that the impugned law imposes restrictions which infringe one or the other sub-clause of clause (1) of Article 19, the burden of showing that such restrictions are reasonable and fall within the permissible category must be on the State and this burden the State may discharge either by producing socio economic data before the court or on consideration of the provisions in the impugned law read in the light of the constitutional goals set out in the Directive Principles of State Policy. The test to be applied for the purpose of determining whether the restrictions imposed by the impugned law are reasonable or not cannot be cast in a rigid formula of universal application, for, as pointed out by Patanjali Shastri, J. in State of Madras v. V.J. Row (1) "no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases". The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied, the value of human life, the disproportion of the imposition, the social philosophy of the Constitution and the prevailing conditions at the time would all enter into the judicial verdict.”.
“[I]t would be a wise rule to adopt to presume the constitutionality of
a statute unless it is shown to be invalid. But even
here it is necessary to
point out that this rule is not a rigid inexorable rule applicable at all times
and in all situations. There
may conceivably be cases where having regard to the
nature and character of the legislation, the importance of the right affected
and the gravity the injury caused by it and the moral and social issues involved
in the determination, the court may refuse to proceed
on the basis of
presumption of constitutionality and demand from the State justification of the
legislation with a view to establishing
that it is not arbitrary or
discriminatory. There are times when commitment to the values of the
Constitution and performance of the constitutional role as guardian of
fundamental rights demands dismissal of the usual judicial deference to
legislative judgment. The death penalty, of which the constitutionality is
assailed in the present writ petitions, is a fundamental
issue to which ordinary
standards of judicial review are inappropriate. The question here is one of the
most fundamental which has
arisen under the Constitution, namely, whether the
State is entitled to take the life of a citizen under cover of judicial
authority. It is a question so vital
to the identity and culture of the society
and so appropriate for judicial statement of the standards of a civilised
community --
often because of legislative apathy -- that ‘passivity and
activism become platitudes through which judicial articulation of
moral and
social values provides a light to guide an uncertain community.’ The same
reasons which have weighed with me in holding
that the burden must lie on the
State to prove that the death penalty provided under section 302 of the Indian
Penal Code read with
section 354 sub-section (3) of the Code of Criminal
Procedure is not arbitrary and unreasonable and serves a legitimate penological
purpose where [299] the challenge is under Article 21 must apply equally to cast
the burden of the proof upon the State where the
challenge is under Article
14.“
[90]
Janet Chan and Deborah Oxley, “The deterrent effect of capital punishment:
A review of the research evidence”, in NSW
Bureau of Crimes Statistics and
Research, Crime and Justice Bulletin, No 84, October
2004.
[91] Id
at 11
[92]
Peter Hodgkinson and William Schabas (eds), Capital Punishment: Strategies
for Abolition (Cambridge University Press, 2005), Chap
1.
[93] Chapter 1,
available at
http://www.cambridge.org/catalogue/catalogue.asp?isbn=9780511189074&ss=exc
(quoting Roger Hood, ‘Capital
Punishment, Deterrence and Crime
Rates,’ Seminar on the Abolition of the Death Penalty, Kyiv
[Ukraine], 28-29 September 1996: Council of Europe Parliamentary Assembly;
Doc As / Jur [1996] 70, p.6, paras 23 and 27 (citations
omitted))
[94]
Roger Hood, The Death Penalty – A Worldwide Perspective(Oxford:
Clarendon Press, 3rd ed 2005), at
230-231.
[95] The
majority in this case took the view that since there was divergent opinion on
the issue of deterrence, they would defer to the
legislature’s judgment on
the issue.
[96]
Bachan Singh , at
327
[97] See, for
example the Judgment of the Constitutional Court of Belarus, 11 March 2004,
Minsk No. J-171/2004, available at http://ncpi.gov.by/ConstSud/eng/j171.htm.
[98]
[1982] INSC 61, [1983] 1 SCR 145, (1982) 3 SCC 24 (Chandrachud CJ, Sakaria,
Gupta and Untwalia JJ, with Bhagwati J in
dissent)
[99]
[1983] 1 SCR at
256
[100] 1983
(3) SCC 470. In Krishna Mochi v State of Bihar [2002] INSC 216 the Court
set out in detail the limited categories of circumstances where crimes involving
the taking of life might constitutionally
be subject to the imposition of a
death
sentence.
[101]
See, for example, Mithu v State of Punjab, [1983] INSC 36; [1983] 2 SCR
690; [1983] 2 SCC[1983] INSC 37; , AIR 1983 SC 473, in which the Court held that the imposition
of a mandatory death sentence for murders committed by persons already serving a
sentence
of life imprisonment was a violation of the guarantee of equality
contained in Article 14 of the Indian Constitution as we as the right by Article
21 that no person shall be deprived of his life or personal liberty except
according to procedure established
by law. The basis of the decision was that
there was no rational justification for distinguishing between the different
classes of
offenders.
[102]
Echegaray v Secretary of Justice and others [1998] PHSC 656. There were
two unsigned and powerful dissents (it is not customary for the dissenting
judges to be identified by name) which took
into account the criminological
evidence and the developments at the international level).
[103] A recent
example is Nguyen Tuong Van v Public Prosecutor [2004] SGCA 47, [2005] 1
SLR 103 (upholding the decision at on appeal from [2004] SGHC 54, [2004] 2 SLR
328), in which the Court of Appeal of Singapore upheld the constitutionality of
a mandatory death penalty in drug trafficking cases, a view which is at
odds with the overwhelming weight of judicial decisions at the international
level and in many of the countries where the death penalty is still on the
books. The Court explicitly noted (at para 77) that “the
appellant had not
placed . . . material before us to properly decide whether the legislative
judgment [that possession of 15g of
heroin was an appropriate criterion for
concluding that the offence was trafficking and was an extremely grave
one”. The Court
did not consider any of the practice of the Human Rights
Committee in its
judgment.
[104]
[1981] AC
648
[105]
Public Prosecutor Lau Kee Hoo [1983] 1 MLJ 157 (Federal Court of
Malaysia). With all due respect to the judges of that court, it cannot be said
that the analysis and reasoning in relation
to other authorities is particularly
extensive and there is little reference to international materials – the
Court appeared
largely content to follow the then recent Privy Council decision
in Ong Ah
Chuan.
[106]
[1995] ZACC 3; 1995 (3) SA 391, 1995 (6) BCLR 665
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