What Is the Right to Life Under Section 35?

Section 35 of the Constitution is one of the most heavily entrenched provisions in the document: under section 17(3), altering it requires a three-quarters absolute majority of the Parliament.

The rule

No person shall be deprived of his life intentionally except in the circumstances section 35(1) sets out. The word intentionally matters: the section addresses deliberate deprivation of life, not every death.

The exceptions in section 35(1)

1. (a) In execution of a sentence of a court following conviction of an offence for which the penalty of death is prescribed by law.
2. (b) As a result of the use of force to such an extent as is reasonable in the circumstances of the case and is permitted by any other law —
   • (i) for the defence of any person from violence;
   • (ii) to effect a lawful arrest, or to prevent the escape of a person lawfully detained;
   • (iii) to suppress a riot, an insurrection or a mutiny;
   • (iv) to prevent the person from committing an offence;
   • (v) to suppress piracy or terrorism or similar acts.
3. (c) As the result of a lawful act of war.

Section 35(2) — liability is not extinguished

Nothing in section 35(1)(b) relieves any person from any liability at law in respect of the killing of another.

This is the provision most often overlooked. Section 35 defines when the constitutional right is not infringed. It does not create a defence to a criminal charge or to a civil claim. Whether a killing was lawful is answered by the Criminal Code (Chapter 262) and by the ordinary law of tort. An officer who kills in the course of an arrest may be within section 35(1)(b)(ii) and still face prosecution and a damages claim.

The death penalty

Section 35(1)(a) permits execution only where the penalty of death is prescribed by law for the offence, and only in execution of a sentence of a court following conviction. It does not itself prescribe the death penalty for anything; it accommodates the possibility.

Two further constitutional limits apply. Section 36 — freedom from inhuman treatment — is absolute, and section 36(2) says that a killing in circumstances within section 35(1)(a) does not of itself contravene section 36, although the manner or the circumstances of the killing may contravene it. And the power of mercy under sections 151 and 152 provides for pardon, respite and commutation.

Because this is an area where the law has moved — both in the offences carrying the penalty and in the position of the penalty itself — check the current text of the Criminal Code and any amending legislation before relying on anything written about it, including this page.

Does section 35 require the State to protect life?

The section is drafted as a prohibition on intentional deprivation rather than as a positive duty. But it does not stand alone. Section 37(17) requires that all persons deprived of their liberty be treated with humanity and with respect for the inherent dignity of the human person, and section 36 prohibits inhuman treatment absolutely. Deaths in custody therefore raise sections 36 and 37 as directly as section 35.

Section 57 also allows a court to act on its own initiative, and to grant relief where there is a reasonable probability of infringement — not only after the event. See enforcing a Basic Right.