By Gangani Weerakoon
President Maithripala Sirisena, last week, said that he would sign required orders to execute capital punishment for convicted drug traffickers who carry out large scale drug smuggling operations while in detention. The President’s office quoted the President as saying that although there are certain opinions regarding capital punishment in a Buddhist society, if large number of criminal acts spread in such a society despite religious sermons, it will be necessary to take some timely actions to control crime.
Cabinet Spokesman Dr. Rajitha Senaratne had said the death penalty is to be initially implemented on 19 large scale drug offence convicts.
He said that Cabinet approval had been obtained to implement the death penalty on repeat offenders related to large scale drug offences.
The move, as expected came under attack by many civil factions on the grounds that the world in the modern era is increasingly looking at ways of deviating from ‘barbaric’ methods of punishing criminals. Interestingly, many religious leaders, mainly chief Buddhist monks representing both Malwatte and Asgiriya Chapters and Archbishop Malcolm Cardinal Ranjith who vehemently opposed Government’s attempt to partially legalize abortions, praised President Sirisena and his Government for the ‘brave’ step to be taken.
Posts of Two “Hangmen” Vacant
The posts of two ‘hangmen’ are still vacant as the previously selected two executioners did not report back to work even after receiving training. Now the Government will have to start the hunt for two hangmen if it is to carry out capital punishment as planned and no one is sure about the time it will take in recruitment and for the training period. Capital punishment was carried out in Welikada and Bogambara prisons earlier and the gallows, as reported earlier by prisons officials, need renovations. In addition, the rope use to hang convicts is not available locally and according to officials needs to be imported from Pakistan. As a whole, it is unlikely that President Sirisena will be able to carry out capital punishment as planned before the end of his first term, considering the time-consuming process involved.
Sri Lanka has a history of suspending and reviving death penalty. The British restricted the death penalty after they took control of the island in 1815 to the crimes of murder and “waging war against the King”.
Prime Minister S.W.R.D. Bandaranaike, in his first Cabinet meeting after being elected in 1956, decided to suspend the death penalty for a period of three years.
In April 1958 the Suspension of the Capital Punishment Act was passed by both Houses of Parliament. During the second reading, the Minister of Justice informed the Senate that the Government proposed to appoint a commission to examine the whole issue thoroughly, and this commission was appointed in October 1958.
According to a published article by Anne Ranasinghe in 2003, the Chairman was Dr. Norval Morris, Dean of the Faculty of Law of the University of Adelaide, and the other members were Sir Edwin Wijeyeratne, a former Minister of Home Affairs; Professor T. Nadarajah, Dean of the Faculty of Arts and Head of the Department of Law at the then University of Ceylon; and S. Canagaraya, was the Secretary of the Commission.
The Commission made a careful study of every aspect of the death penalty and its report was published just two weeks before the assassination of Prime Minister Bandaranaike. However, the decision by Prime Minister Bandaranaike to suspend death penalty was revoked and the Government decided to reintroduce it soon after his assassination in 1959.
The United National Party Government modified the use of death penalty in 1978 Constitution. Under the new arrangement, death sentences could only be carried out if authorized by the trial judge, the Attorney General and the Minister of Justice. If there was no agreement, the sentence was to be commuted to life imprisonment. The sentence was also to be ratified by the President and this clause, according to legal experts, effectively ended executions.
Sri Lanka as a country probably started raising concerns about the full horror of the death penalty after the execution of infamous Dedduwa Jayathungalage Siripala alias Maru Sira at Bogambara Prison on 5 August 1975. The night before his execution, prison guards gave him Largactil in strong dosage in an attempt to prevent him escaping, but this caused him to collapse and his hanging was botched because the short fall caused by his slumped position, caused him to strangle to death instead of breaking his neck and killing him instantly
Last Hanging on 23 June 1976
The last man to be hanged in Sri Lanka was from Tissamaharama on 23 June 1976.
President Chandrika Kumaratunga made several attempts to re-introduce the death penalty. In March 1999, after spurts of violence near the end of her first term in office, she stated that the Government would be reintroducing the death penalty. However, she was forced to back down in the face of overwhelming public protest. The issue hung in the balance, with all death sentences from then on being neither commuted to life nor carried out. After discussions were held regarding the matter, the motion that commuted all death sentences to life in prison was revoked in January 2001.
On 19 November 2004, High Court Judge Sarath Ambepitiya was gunned down as he arrived home from work. He had a reputation for handing out tough sentences. The assassination immediately prompted Kumaratunga to effectively reinstate capital punishment.
The Government decided to reinstate capital punishment in 2004 for cases of rape, drug trafficking and murder after the assassination of High Court judge Sarath Ambepitiya.
Apart from international human rights agencies denouncing Sri Lanka’s decision to reintroduce capital punishment,
Sri Lanka Human Rights Commission on Friday (13) wrote to President Sirisena raising concerns over moves to implement the death penalty on convicts involved in drug trafficking.
Dr.Deepika Udagama Letter
Commission Chairperson Dr. Deepika Udagama said in the letter that the death penalty is a serious human rights violation.
Udagama said that the Commission does not feel implementing the death penalty can address the issue of drug trafficking.
The Sri Lanka Human Rights Commission also notes that implementing the death sentence will only contribute negatively to a society where the public have lost faith in the justice system.
The Sri Lanka Human Rights Commission also reminded the President of a set of recommendations issued in 2016 which called for the abolition of the death penalty in Sri Lanka in keeping with Sri Lanka’s commitment to a more humane society consonant with human rights principles and values.
Dr. Udagama in a previous letter dated 1 January 2016 wrote to President Sirisena stating that: The Human Rights Commission wishes to bring to Your Excellency’s and the Government’s attention its recommendations regarding the abolition of the death penalty, which the Commission views is imperative for Sri Lanka in recognition of the growing global recognition that the death penalty seriously violates several human rights including the right to life and freedom from cruel and inhuman punishment and is an extreme and irreversible punishment and is ineffective as a deterrent to crime. Sri Lanka should demonstrate its commitment to the sanctity of life and fundamental human rights principles by joining the more than 100 nations in the world that have abolished the death penalty thus far. Another 60 countries do not carry out death sentences in practice.
International human rights obligations of Sri Lanka clearly discourage the death penalty. Article 3 of the Universal Declaration of Human Rights enshrines the sanctity of human life by affirming that everyone has the right to life, liberty and security of person, whilst Article 6 of the International Covenant on Civil and Political Rights strongly suggests that abolition of the death penalty is desirable.
Your Excellency’s attention is drawn to the Second Optional Protocol to the International Covenant on Civil and Political Rights, adopted by the UN General Assembly by resolution 44/128 of 15 December 1989 which calls for the abolition of the death penalty. Its Preamble declares that the abolition of the death penalty contributes to the enhancement of human dignity and progressive development of human rights. In keeping with Sri Lanka’s commitment to improving human rights protection in the country, we recommend that Sri Lanka accede to the Protocol and take steps to abolish the death penalty.
Whilst appreciating that, from 1976, successive Governments in Sri Lanka have not implemented the death penalty, the Commission notes that courts continue to impose the death penalty under several statutes which provide for the imposition of the death penalty, including the Penal Code and the Poisons, Opium and Dangerous Drugs Ordinance as amended by Act No. 13 of 1984.
In view of international and comparative jurisprudence, the Commission agrees with the position that the death penalty amounts to cruel, inhuman and degrading punishment and fails to respect the sanctity of human life. The Supreme Court of Sri Lanka has held that although there is no express fundamental right to life, nevertheless that such a right is implied in the 1978 Constitution of Sri Lanka. Article 11 of the 1978 Constitution prohibits without any reservation torture as well as cruel, inhuman and degrading treatment or punishment.
The Commission seeks to place before Your Excellency and the Government the following factors which should be considered in abolishing the death penalty:
Death Penalty as deterrence to crime
Many proponents of the implementation of the death penalty have urged its implementation as deterrence to crime. However, it is our view that it is an effective justice system and a just social order that led to a reduction in crime, as is seen in countries which have some of the lowest crime rates. There is no empirical data, to show that death penalty has caused a reduction in crime or has a deterrent effect on crime.
Risk of miscarriage of justice and irreversibility of capital punishment
Despite constitutional safeguards, including the appeals process and recommendations being called from the trial judge, the Attorney General and Minister of Justice, it is the view of the Commission that there is always the risk of innocent persons being executed for crimes which they did not commit.
It is the view of the Commission that in view of the serious flaws which exist in the criminal justice system coupled with Sri Lanka, unlike other countries, not having a process permitting the reopening of a criminal case after exhaustion of the appeals procedures, there is a serious risk of a miscarriage of justice. Although due process in criminal proceedings is guaranteed by the Constitution and statutory law, there is always the possibility of human error distorting the final outcome.
The Commission wishes to place before Your Excellency that there have been several instances, in countries including those of the developed world, where also due to new investigation techniques and development of technology, fresh evidence has surfaced or doubts raised about the integrity of evidence many years after conviction. In the United States, Canada and the United Kingdom there have been several occasions where people wrongly convicted have been released from death row or prison decades later, the most recent being a US man who was released in November in Louisiana after serving 23 years in prison for several crimes, because the judge found he did not obtain a fair trial. The lead investigator and the judge in the original trial said they believe his conviction was a “miscarriage of justice”.
Similarly, the Commission notes there are allegations of prosecutorial misconduct leading to conviction of the innocent in Sri Lanka. Such an instance is highlighted in the Supreme Court Judgment of Wijepala vs Attorney General (2001) 1 SLR 42.
Accused not being properly defended
The Commission is also of the view that the chances are that accused from underprivileged circumstances would be more prone to be subjected to the death penalty than those who have the financial means to hire competent counsel. There is a possibility of certain accused being convicted not due to their guilt but due to being improperly defended. In the High Court where accused are financially unable to retain counsel, the State assigns counsel from the private bar at random, who often tend to be young, untrained, inexperienced and not sufficiently remunerated.
For all of the above reasons the Human Rights Commission recommends that Sri Lanka ratifies the Second Optional Protocol to the ICCPR and abolishes the death penalty forthwith.
The death penalty should be substituted with periods of imprisonment that befit the seriousness of each crime. Accordingly, we recommend that commutation of periods of imprisonment for such crimes also be done according to a national policy that takes into consideration the serious impact of such crime on society.