|
Vienna Convention and Sri Lankans on Death Row -- Nishan de Mel
Early this year (2005) three Sri Lankans were sentenced to death in Saudi Arabia for carrying fire arms and threatening civilians. Those close to these three accused have said that they did not receive proper legal representation and at best barely managed to decipher the proceedings being instituted against them. In any kind of legal case this would be very wrong; in a case that leads to a death sentence it is intolerable. Each year, over two hundred thousand Sri Lankan workers leave to the Middle-East for employment. About 75 percent of them are employed in low-skilled jobs. Because of their relatively low incomes, unfamiliarity with new surroundings and lowly status in the employment hierarchy, these workers tend to be vulnerable to ill-treatment within the structures of their host country. Yet, their determination to brave these risks and work is a tremendous asset to the Sri Lankan economy. The annual remittances to the country from these workers are estimated to exceed a hundred billion rupees and account for over 5 percent of the countries GDP. But the government of Sri Lankan is still to formulate an effective strategy for protecting the basic rights of these foreign employed workers. There are many areas in which the basic rights of foreign employed workers need to be protected. Very important amongst them is the protection from physical and sexual violence, especially for women domestic workers. This article because it is about the case of Sri Lankans sentenced to death, will focus on the protection from lack of legal due process. Recently, many appeals have been made to Saudi Authorities, on behalf of the three Sri Lankans on death row by both the Sri Lankan government and its citizens. One important mechanism of pursuing the legal rights and release from death row of these three workers, however, has been sorely overlooked. This mechanism derives from certain Multilateral United Nations Treaties: The Vienna Convention on Consular Relations, and the associated Optional Protocol on the Settlement of Disputes (The full formal name is: Optional Protocol to the Vienna Convention on Consular Relations, concerning the Compulsory Settlement of Disputes). Vienna Conventions Many of us have heard the term ‘Vienna Convention’. There are however several international treaties that have the phrase ‘Vienna Convention’; and each one is different. Of all the Vienna Convention treaties, it is the Vienna Convention on Consular Relations that is vital for Sri Lanka in this case. This is because of paragraph 1(b) and 1(c) of Article 36 in the Vienna Convention on Consular Relations, which reads: Article 36, 1(b): if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;(emphasis mine) Article 36, 1(c): consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. (emphasis mine) Mexican Example In the last two years, Mexico was in a similar predicament to Sri Lanka. There were 51 Mexicans on death row in the jails of the United States, and appeals for clemency had not borne any results. Mexico found out that its nationals on death row had not been properly informed about their rights to access the assistance of the Mexican Consular, which is a violation of Article 36, paragraph (b) of the Vienna Convention on Consular Relations. Mexico recognised that if it had been informed the Mexican Consular could have ensured proper legal representation, by which the death penalty may have been avoided. Mexico challenged the US on not adhering to the Vienna Convention on Consular Relations, which both Mexico and the US have adopted. What gave Mexico additional muscle in this disagreement with its very powerful neighbour was the Optional Protocol on Settlement of Disputes. This treaty stipulates that in case of a dispute (regarding the adherence to the Vienna Convention on Consular Relations) where the two countries cannot reach a mutually satisfactory settlement, the International Court of Justice would have the Jurisdiction to decide the case. Any country that has adopted the Optional Protocol on Settlement of Disputes can bring the case before the International Court of Justice. Mexico had judiciously adopted the treaty in March 2002, and so it invoked the International Court of Justice. In March 2004 The International Court of Justice came to the conclusion that the Mexican prisoners did not receive a fair trial because they were not told of their rights to consular assistance, and ordered the US to provide for a review of the cases and better access to legal representation for the accused. Mexican lawyers had argued that consular help could have made the difference between life and death, and indeed reviews of the legal representation received (which was woeful) suggest that consular assistance might certainly have made a difference. Well done, Mexico! Sri Lankan Opportunity It is quite possible that the Sri Lankans in Saudi Arabia did not receive any better legal representation than the Mexicans in the United States. So, what is it that prevents Sri Lanka from following the Mexican example in intervening on behalf of its citizens on death row in Saudi Arabia? The problem is that Sri Lanka has not adopted the Vienna Convention on Consular Relations; and as a result has not been in a position to adopt the Optional Protocol on Settlement of Disputes either. Saudi Arabia on its part has adopted the Vienna Convention on Consular Relations. Therefore, Sri Lanka could have been in a position right now to ask for a revision of the case against its citizens, based on this treaty, rather than simply appealing for mercy. Sri Lanka could also have been in a position to move the dispute to the International court of Justice, where there is a high chance of a favourable judgement. But right now, it cannot do either. Amongst the SAARC countries, Sri Lanka is the only country to have failed to adopt the Vienna Convention on Consular Relations. Here is a list of the SAARC countries and the dates of adopting the Convention.
Sri Lanka has no good reason for not signing the Vienna Convention on Consular relations. The fact that it has not been signed or ratified is due most likely to Bureaucratic and Parliamentary inattention to the significant role that the Vienna Convention on Consular Relations and the Optional Protocol on the Settlement of Disputes could play in ensuring legal due process for Sri Lankans who are working abroad. The BBC Reported on the April 10, 2005 that when questioned about the Vienna Convention on Consular Relations, the deputy foreign Minister Vishwa Warnapala had “admitted that he did not know whether Sri Lanka was a signatory or not”. At a time where we have had some frequent transitions in Governments and Ministries, it might be excusable for the deputy foreign Minister not to be aware that Sri Lanka has not adopted the Vienna Convention on Consular Relations. But now that this information has been made public, we must hope that Foreign Ministry will proceed to take appropriate remedial action. It need not be denied that the Foreign Ministry, after the death row sentences became publicised by the Asian Human Rights Commission, has taken pains to secure the release of those Sri Lankans, by opening several diplomatic channels for appeal. But this type of belated bleating hardly constitutes a coherent strategy for protecting Sri Lankan workers abroad from the lack of legal due process, and is only a little better than the proverbial closing of the barn door after the horse has bolted. Without waiting for another crisis situation, the government would be well advised to take steps now to ensure that Sri Lanka adopts the Vienna Convention on Consular Relations and the Optional Protocol on the Settlement of Disputes; and draw up an effective strategy for ensuring a fair legal representation for Sri Lankan workers who face criminal charges in foreign countries.
Nishan de Mel Trinity College, Oxford University. Email: nishan.demel@economics.oxford.ac.uk |
||||||||||||||||||||||||