Dharisha Bastians and Anurangi Singh
A 43-year moratorium on executing the death sentence has become entrenched in the law and in the mind of every High Court judge that hands down the death sentence, Counsel for a prisoner condemned to death and challenging the decision to resume judicial hangings told the Supreme Court on Friday.
President’s Counsel M.A. Sumanthiran, who appeared for the death row prisoner M.H.P. Nawas, whose petition was filed through attorney at law Kavindu Hewa Geeganage, told the Supreme Court that the moratorium on judicial hangings had been in effect for not just a year or two, but for nearly half a century.
In the meantime, Governments and Presidents had changed, but the policy had remained in place, he argued, adding that as a result, the prospect that a death sentence could be carried out was not in the minds of any High Court judge.
“43 years of non-implementation of the death sentence has instilled into the minds of our judges that this will not be carried out. They hand out death sentences knowing the sentences will not be executed,” said Sumanthiran PC, as he made submissions in SC FR 272/2019 before a three judge bench of the Supreme Court.
Citing the Bachchan Singh Vs the State of Punjab (1980) determination in India, in which judges ruled that capital punishment may only be imposed in the ‘rarest of rare’ cases, it was Sumanthiran PC’s contention that High Court judges in Sri Lanka would be more circumspect in handing down sentences of death, if they knew the executions could actually take place.
In light of the 43-year moratorium on judicial executions, in practice the death penalty has effectively been abolished, Counsel for the petitioner claimed.
Last Friday (5), a three judge bench of the Supreme Court took up the fundamental rights application filed on behalf of the death row prisoner, limiting the hearing to the question of whether interim relief should be granted to the petitioner by staying the executions.
Deputy Solicitor General Nerin Pulle, who represented the Attorney General in the case, told court that interim relief would not be necessary since the Commissioner General of Prisons had already given an undertaking in the Court of Appeal which was hearing a writ application to stay the executions, that no judicial hangings would take place until July 17.
However, Counsel for the prisoner strongly disagreed. Since the death warrant specifies a date and time, this was not a matter in which an undertaking would suffice, Sumanthiran said, pressing the Court to give his client interim relief.
The three judge bench headed by Justice Buvaneka Aluvihare and including Justices Prasanna Jayawardane and Gamini Amarasekera decided to provide interim relief to the petitioner, directing the Commissioner General of Prisons and the Prisons Superintendent to desist from executing any prisoner, consequent to a death warrant being signed. The interim order issued by the Supreme Court also suspends the operation of any and all death warrants.
With the case set to be taken up on October 29, the interim order stands until October 30, 2019, the Supreme Court bench decreed.
On June 26, President Maithripala Sirisena said he had signed the warrants of four drug convicts who were to be executed in the next fortnight. However, as of July 5, the Commissioner General of Prisons had not received the death warrants that must be made out under the President’s hand, setting out the date, time and place for execution.
Lawyers for the petitioner, took up two central arguments – the first that the execution of the death penalty was tantamount to cruel and degrading punishment proscribed by Article 11 of the 1978 Constitution and therefore unconstitutional.
The last judicial execution in Sri Lanka took place in 1976, two years before the enactment of the 1978 Constitution. Furthermore, Counsel for the petitioner argued that the 1972 Constitution which was in effect till executions stopped in 1976, while it contained a chapter on fundamental rights, did not include Article 11, which holds that no person shall be subjected to cruel and degrading treatment or punishment. No warrant for the execution of a prisoner had been signed by a Head of State since the 1978 Constitution was enacted, Counsel for the petitioner said.
The second ‘central plank’ of the death row prisoner’s application, as noted by Justice Prasanna Jayawardane, whose incisive questions were the highlight of Friday’s proceedings, was that the selection of four prisoners out of perhaps hundreds on death row who had exhausted their appeals, was arbitrary, and therefore unconstitutional, since it would violate Article 12 (1) of the Constitution, guaranteeing equality before the law.
“Such secrecy. Out of hundreds, how does the executive pick and choose who to execute?” Counsel for the prisoner asked.
Justice Jayawardane repeatedly asked the Attorney General to specify the criteria under which the four prisoners had been singled out for execution but no response was provided.
Sumanthiran PC also pointed to the fact that the Code of Criminal Procedure enacted with amendments in 1979 only charged the Superintendent of Prisons with the safe custody of prisoner’s who had been given the death penalty (286 (a)), whereas the previous Code of Criminal Procedure in section 309, provided for a death row prisoner to be handed into the custody of the fiscal for execution. “This is an important distinction,” he explained adding, “this law does not authorise anyone to execute the death sentence.”
DSG Pulle who appeared for the AG, said the law provides for executions to be effected. It was also the position of the Deputy Solicitor General that the role of the President was limited to deciding on the date and place for an execution, and that the executive was only giving effect to a judicial decree, which sentenced a prisoner to death.
However, DSG Pulle insisted that the Court lacked jurisdiction to hear the petitioners, as the petition was requiring the Court to embark on post-enactment judicial review, which the 1978 Constitution does not permit. Citing the Supreme Court judgment on the Counter Terrorism Bill in October 2018, DSG Pulle noted that the judges had concluded that the imposition of the death penalty does not contravene Article 11 of the Constitution.
The DSG contended that the petitioners were requiring the court to embark on post-enactment judicial review – in this case of the punishment by death as set out in the Code of Criminal Procedure – which has not been provided for under the Constitution. DSG Pulle urged the Supreme Court to be mindful of its jurisdiction in such matters.
Through a series of questions posed to the State prosecutor, Justice Prasanna Jaywardane pointed out that the executive exercises significant discretion in the carrying out of a death sentence, even though the Deputy Solicitor General had only confined his argument that the President was only carrying out a judicial decree, to Section 286 (a) of the Code of Criminal Procedure despite several subsequent provisions in the same Section that lays out the discretion afforded to the executive.
While the Supreme Court cannot engage in review of laws already enacted by Parliament – like the Code of Criminal Procedure Act, the court has jurisdiction to make determinations on matters of executive discretion, legal observers pointed out in the context of the case.
Under the circumstances, Justice Jayawardane noted that the argument that executive functions were not exercised in this case could not hold at this stage of the hearings on the petition.
Friday’s interim order was a brief respite for activists rallying against the resumption of judicial hangings. Over a dozen fundamental rights petitions were filed in the Supreme Court last week, challenging the decision to resume executions, to target drug offenders currently on death row.
An array of President’s Counsel had been retained to appear for the petitioners and respondents, including K. Kanag-Iswaran PC, who appeared for the Human Rights Commission of Sri Lanka, cited in the death row prisoner’s petition, Romesh De Silva PC who appeared for Bishop Duleep De Chickera, Sanjeewa Jayawardane PC, Ali Sabry PC, Faiz Mustapha PC, Saliya Peiris PC, Shavendra Fernando PC, and Attorney at Law Suren Fernando. Sumanthiran PC and Attorney at Law Pulasthi Hewamanne appeared for the death row prisoner whose petition was taken up for consideration of interim relief last Friday.