“Then I awake and look around me
At four grey walls that surround me
And I realize: Yes, I was only dreaming
For there’s a guard
And there’s a sad old padre
Arm in arm we’ll walk at daybreak
Again, I’ll touch
The green, green grass of home”
The famous ballad Green, Green, Grass of Home, tells of a youth who leaves home for distant parts only to fall into wrong-doing and facing the death sentence, dreams of being buried in his home town under the ‘old Oak tree’ he once played on.
On Friday, June 28, the Court of Appeal considered a writ petition that came before it seeking an interim order to stay any decision to execute the death penalty on any person until the matter was heard and concluded.
The Petitioner, Malinda Seneviratne, in his application, states that the action was filed in response to the revelation made by the executive that four individuals have been selected to be executed on a date that falls within the drug prevention week.
When the matter was taken up before the President of the Court of Appeal, Justice Yasantha Kodagoda and Justice Arjuna Obeysekara, the court inquired from Commissioner General of Prisons Jagath W. Tennakoon, who was named as first respondent, if he can give the court an undertaking that no executions will take place till the end of next week till the matter is supported.
Responding positively the Commissioner gave the court an undertaking to that affect. This temporarily halts any possibility of an execution soon.
The attempts made by the President to rid the country of the malignancy of organized crime and its by-product, the illegal drugs problem, should be appreciated. The overall goal is to make the country and its people secure from such social ills. At the same time, it is imperative that one takes stock of the real situation to see whether the end result is achievable. The goal would be to drastically reduce the incidence of crime and to sustain such reduction.
Crimes occur in every country. Then the need is to implement an efficacious Criminal Justice System (CJS). The CJS entails conviction and punishment of the guilty, acquittal of the innocent in terms of the law and through a fair trial process.
Punishments seek to achieve several end results that maybe clustered into four areas: retribution, deterrence, incapacitation and rehabilitation.
The Death Penalty was introduced as a punishment in modern Sri Lanka during European colonisation. Although the punishment yet remains in law, a moratorium was exercised for the past 43 years.
“The development of human rights and the developments in the criminal justice system resulted in the temporary suspension of the death penalty. This is a punishment that is accepted in our criminal justice system,” Prof. Jeeva Niriella of the Department of Public and International Law, Faculty of Law, University of Colombo told the Sunday Observer.
According to Prof. Niriella, with the development of society and the CJS, all state agencies involved it understood that “there is no big value of the death penalty,” other than the mere satisfaction or the desire of the victims to make the offender suffer.
“There is no big utility value in the death penalty rather than wiping out the person from this world. This is more or less a revenge seeking avenue. But, we should ask the question that whether as a civilised society, we are ready to welcome this tit-for-tat rule,” she said.
One of the arguments that have been put forward for the reinstatement of executions is that deterrence can be achieved through inculcating fear in the minds of the people and as a result the crime rates can be reduced.
Refuting this claim Prof. Niriella states that this claim can be rebutted by substantiating with available statistics.
“In my article published by the Colombo University I took all the statistics that was available from 1948 to 2010 to prove logically the argument that there is no direct relationship between imposing the death penalty and a reduction of crime,” she said.
“In much research worldwide, as well as in the Morris Commission that was appointed to consider the re-imposition of the death penalty after the assassination of the late Prime Minister SWRD Bandaranaike, it was clearly shown that there is no deterrence effect from the death penalty. Because during the period when the death penalty was imposed on capital offences there has been no link found between the imposing of capital punishment and the rate of committing the offence.
“Strengthening the CJS is seen to be one of the main areas that the country ought to invest in before lifting the moratorium on the death penalty.
“It is necessary to have a very strong criminal justice system. If you take many countries, there are so many weaknesses from making the first complaint to the police until the final judgement is pronounced. There are so many weaknesses that you can see. Rather than changing the first and the initial steps we are trying to look at and bring a remedy to the final step. Being a criminologist, I do not agree with this.”
Emeritus Prof of Forensic Medicine and Toxicology, University of Colombo and Senior Prof of Forensic Medicine, General Sir John Kotelawala Defence University, Ravindra Fernando points that even in countries with the best legal systems there have been miscarriages of justice.
“Carrying out the death penalty is irreversible. There are flaws in Sri Lanka’s justice system. There is also always the danger of a miscarriage of justice. The Police, Judicial Medical Officers, Scientists of the Government Analyst Department, Lawyers, Judges and Juries can make mistakes,” he said.
“The degree of professionalism in Police investigations, particularly by the police in uniform needs to be assessed. Are they even sufficiently equipped? Does even the CID possess a paleographic lie detector machine?” an attorney-at-law familiar with the CJS questioned.
“With a turnover time period of 10 years and two months for a criminal case to see finality in Sri Lanka is this actually the means of going forward? Aren’t there many other aspects that need to be considered before implementing the death penalty?
“A critical analysis of the punishment system in the country needs to be conducted to ensure that the punishment systems are not tampered with. This can be explained well in light of Father Matthew Peiris’ conviction, one of which was by the High Court where he was sentenced to death. He came out in twelve and half years due to various remittances.
“If certain individuals can be pardoned or given various remittances due to different reasons such as birthdays and national days and if selective persons are given such remittances, that shows clearly where the CJS is treated so trivially.
“The system should consider imprisonment till death rather than life imprisonment which barely goes over 20 years.”
According to Prof. Niriella, in India on the one hand they have recognised the right to life in their constitution and also they impose the death penalty. Their most serious punishment is life imprisonment but looking at the circumstances the relevant judge can give a capital punishment.
The call for the reinstatement of the death penalty drew criticism from many corners. The impact this decision will bring economically and internationally will change Sri Lanka’s trajectory to the worst.
Several prosecutors speaking to the Sunday Observer stated that although they do work for conviction for even offences that attracts the capital punishment, they would not recommend execution save for very extreme circumstances.
“In principal I do not think we have a strong criminal justice system to sufficiently justify execution even though they are not mutually exclusive. There have been instances where we have come across that while conducting the cases the investigations notes have been doubted and fails or does not tally with the findings.
Therefore what needs to be done first and foremost is to strengthen the CJS.
Senior Counsel Rohan Dunuwille said that the death penalty has and will for years to come, generate mixed views, emotions, arguments and counter arguments. Until and unless the system that convicts and condemns a man to death becomes infallible, there is and always will be an innocent man on death row. This is ample justification against the death penalty.
President’s Counsel Ali Sabry aired his view strongly against lifting the moratorium saying there exists the risk of even one person being executed without proper reasoning and that should not be the case.
“Whatever the pros and cons, under Article 11 of our constitution there is a large question to be answered regarding the imposition of the death penalty. Article 11 is found verbatim in the South African Constitution. The South African Constitutional Court in ‘The State vs Makwanyane’ in a very detailed judgment held that the imposition of Capital Punishment violated the protection given in Article 11.
Except for Ghana, the Commonwealth African countries and the Caribbean countries have found that Capital Punishment constituted “Torture, cruel, inhuman or degrading treatment or punishment,” Dr.Lakshman Marasinghe, Barrister-at-Law (Inner Temple) and Attorney-at-Law (Sri Lanka) who is currently the Emeritus Professor of Law,University of Windsor told the Sunday Observer.
Political stalwarts, including former President and the Opposition Leader Mahinda Rajapaksa speaking to journalists said “I was also once asked to sign papers but I never went ahead with it. This is not the time,” he said.
Earlier in the week the UNP’s stance was explained by Minister Nalin Bandara who stated that it was against the reinstatement of the death penalty.