Kishali Pinto Jayewardene
Curiously, each time that Sri Lanka announces that it would put an end to the country’s more than thirty years moratorium on implementation of the death penalty, an immediate practical problem surfaces for the administration of Colombo’s Welikada Prisons.
The grisly realities of the job
This is the insuperable difficulty of finding a competent hangman in order to carry out the task. On the last occasion a few years ago that this flurry of excitement was evidenced, the individual who had been taken on for this purpose abruptly left the post citing ‘stress’ as a reason. His potential successors also absconded, presumably for the same reason. Given that persons serving in this position had only been engaging in the comforting chores of administrative duties so far, the notion of actually being called upon to tie the hangman’s noose around another human being would have been unsettling. Empathy therefore naturally arises for the squeamish (to put it mildly) who would desist from such an exercise.
But it is an interesting aside that, in a country where conflict had led to extrajudicial executions of unfortunate human beings of all ethnicities throughout the past decades, recruiting an official hangman has proved to be so arduous. Perhaps that by itself, is telling as to the grisly realities that need to be confronted if capital punishment is to be carried out, which is very different indeed from casual conversations carried out on a political platform.
But quite apart from everything else, the question arises as to whether an event announcing a campaign to save school children from the menace of drugs is quite the proper occasion for Sri Lanka’s Head of State to announce that he would give the go ahead to execute drug traffickers who continue their operations while in detention. Is this the proper message to impart to impressionable young minds, pulverized as they are by the savagery of Sri Lankan society as it has now become?
What is popular may not always be what is needed
Where the substantive issues are concerned, the arguments for and against capital punishment are time worn and somewhat tiringly well known. In previous column spaces, the argument has been made that, as much as this move may be welcomed by a furious populace fed up with being besieged with daily killings, rapes and underworld gangsters running riot on the streets in Colombo, reactivation of the death penalty is not necessarily an automatic deterrent to these abhorrent happenings.
Meanwhile the arguments of state policymakers and lawmakers who are in favour of re-implementing capital punishment is that sufficient safeguards exist in the process to ensure that mistakes do not occur resulting in innocent persons being sentenced to death. We are told that case records of such prisoners will be called for and reviewed on a case by case basis.
The observations of the judge who tried the case will be forwarded to the Attorney General for instructions and thereafter sent to the Minister of Justice who will make his recommendations and in turn pass it on to the President. If all three reports are adverse, the presidential signing of the death warrant will take place and “………………..he (she) will be hanged by the neck until he (she) is dead”.
But is this really all that there is to it? In a country where corruption in law enforcement is endemic and where the criminal justice system is beset by the formidable twin challenges of efficacy and capacity, is the system strong enough even in its very basics, to announce with confidence that no innocent person will be put to death? This has not been the case in other countries which have far more robust preventive mechanisms to ensure that mistakes do not occur and that, even if mistakes happen, they are corrected in due course before the final penalty is carried out. Even so, cases where innocent people have been executed crowd the pages of criminal law books in those jurisdictions.
Death penalty not a ‘lawful punishment’
If emotions are to be detached from the issue before us, the consideration by South Africa’s Constitutional Court (1995) of appeals by two accused against death sentences upon convictions for murder, may be illustrative.
These had been handed down by a local division of the Supreme Court and upheld by the Appellate Division. The Constitutional Court examined whether the Criminal Procedure Act No. 51 of 1977 which prescribed the death penalty for murder was consistent with the Constitution of 1993. The Constitution had come into force subsequent to the conviction and sentence by the trial court.
Issuing an excellently reasoned judgment (The State vs T. Makwanyane and M. Mchunu, Case No CCT/3/94, 6 June, 1995), the Court found that the relevant sections of South Africa’s Criminal Procedure Act, (and all corresponding provisions of other legislation) sanctioning capital punishment was inconsistent with the Constitution. The State was prohibited from executing any person already sentenced to death. These sentences were ordered to be substituted by ‘lawful punishments.’
Some years ago, it is of note that in a petition filed by a Sri Lankan citizen (customs officer Anura Weerawansa) before the United Nations Human Rights Committee under the International Covenant on Civil and Political Rights (ICCPR), the State took up a legal defence that Sri Lanka practiced a moratorium on the death penalty. The accused had been formally charged on 4 April 2002 of conspiracy to commit the murder of another customs officer, Sujith Prasanna Perera together with aiding and abetting others to carry out the murder.
Considering his petition, the Committee declared that even if a moratorium was in effect, an automatic imposing of the death sentence without consideration of strictly observed procedural standards as well as the personal circumstances of the accused violated the Covenant. This was in the light of Article 6 (1) of the Covenant protecting the right to life, subject to the death penalty being imposed in a manner not contrary to the provisions of the Covenant.
Recognising an unpalatable truth
In the final analysis (no humor intended), as difficult as finding an efficient hangman may be, this pales into comparison with implementing efficient reforms in the criminal justice system, the policing system and the judiciary. Links of politicians to the drug mafia and the underworld is an accepted fact.
And though the truth may be unpalatable, putting into place, a powerful legal framework that delinks these linkages of organized crime, punishes those who are culpable without exception and bolsters the capacity of an independent police service and an effective judiciary are the long term solutions to the problem of crime gone out of control.
Nothing else will serve as an alternative.