By Anurangi Singh
A five-judge bench constituted for the first time in the history of the Court of Appeal heard lengthy submissions on the writ application filed to prevent the execution of four prisoners condemned to death, having been convicted on drug trafficking offences.
All last week, the CA bench led by President of the Court of Appeal Justice Yasantha Kodagoda, Justice Janak de Silva, Justice Arjuna Obeysekara, Justice Deepani Wijesekara and Justice Achala Wengappuli sat through lengthy submissions on behalf of the petitioner as well as the State.
The Court reserved the order till July 17 to decide whether leave should be granted.
President of the Court of Appeal Justice Kodagoda inquired from the Commissioner General of Prisons if he can extend the previously given undertaking (valid until July 5) till the order is made.
The Commissioner General Jayasiri Vijayanath Tennakoon, who faithfully sat through proceedings all week, provided the Court of Appeal with an unconditional undertaking since he had not yet received notice of a decision to conduct any executions. The Commissioner General promised to inform the Court in the event he receives such notice.
Once hearings were concluded, Justice Kodagoda pronounced that in the event notice of an execution is brought to the attention of the Court, the bench would convene within 24 hours to determine the matter.
The petitioner Malinda Seneviratne filed a writ application seeking to prohibit the decision to hang four people at a time and date decided. The Commissioner General of Prisons, Superintendent and the executioner had been named as respondents in the petition.
The Court first allowed the Deputy Solicitor General (DSG) Nerin Pulle to raise preliminary objections regarding the jurisdiction of the Court. DSG Pulle argued that the three respondents named were merely carrying out an executive decision on a perfunctory basis. DSG Pulle insisted that the executive should have been made party to the matter if it is to be contested, and explained that this would remove the Court of Appeal’s jurisdiction to hear and decide on the matter.
Taking a completely different view, lawyers for the petitioner stated that they do not wish to contest any executive action. The main premise on which the petitioner based its claim was that, inter alia, the law had not specifically provided for the execution which he claimed was intentionally left out by the legislature as they had never intended executions to take place.
“There are omissions in the criminal procedure code, there are omissions in the rules, there are omissions in the prisons ordinance and omissions in the departmental orders with respect to the act of killing and who kills,” Counsel Niran Anketell submitted.
Counsel Anketell went on to state that these omissions intentionally left by the legislature should only be filled by the legislature.
“Your lordships should not and could not supply that omission, deliberately left out by the legislature which should be deliberately filled by them, if they so wish, but your lordships would not fill in the blanks and these three respondents would not fill in the blanks, and go where the legislature has feared to tread,” he said.
Drawing parallels with the former law which existed which provided for the execution he stated that these gaps in the law ‘are not incidental mistakes’. He stated that in the old criminal procedure code the modus of carrying out a sentence of death was a stand-alone provision that is not the case anymore. According to Counsel Anketell’s submissions, the law provides for the setting up of the noose and steps prior to the execution but not how to conduct the execution.
“So even if one was to follow the departmental orders they are required to go and set up everything and everyone goes into the room and then they do not know what to do. If these three respondents proceed any further, then they are engaging in conduct that they are not entitled to. Where is the execution? Where are the gallows? Where is the trap door?” he highlighted that the law was silent on these matters.
Accordingly, Anketell explained that the law is silent on what happens if the person’s vertebrae does not snap? Who puts the noose on their neck? According to him, the executioner’s (alugosuwa) powers were specified.
DSG Pulle argued that article 16(2) of the Constitution fortifies imposition of the death sentence by stating that ‘all existing written and unwritten laws shall be valid and operative’. He made lengthy references to the provisions of the Criminal procedure code and other related laws to indicate that it is sufficiently provided for to carry out an execution.