Call of the gallows | Sunday Observer

Call of the gallows

On June 23, 1976, J.M. Chandradasa became the last Sri Lankan to be hanged at the Welikada Prison. Following an ad hoc Government decision to resume executions, Prisons officials are already busy compiling lists of eligible death row prisoners, and engaging in the gruesome exercise of importing rope and other equipment and announcing hangman vacancies.

President Maithripala Sirisena’s decision to resume judicial executions for prisoners convicted on drug related offences appears to have populist appeal due to growing public concerns about the country’s law and order situation, but human rights activists and senior lawyers warn that restoring the death penalty in a criminal justice system that is severely compromised could have far reaching consequences.

Concerns are also rife that lifting the de facto moratorium on judicial hangings that is currently in place, could have a serious impact on Sri Lanka’s international human rights obligations, jeopardise its bilateral extradition treaties and seriously impact trade, if the European Union which has a zero-tolerance approach on the issue suspends its GSP Plus concessions on these grounds. Sri Lanka has also ratified and is subject to periodic review of its obligations under the International Covenant on Civil and Political Rights (ICCPR), which recognises that the right to life which can’t be deprived even by way of judicial order.

President Sirisena’s proposal, put to the Cabinet of Ministers last Tuesday, was received with almost unanimous applause by the ministers. The sole exception was Finance and Mass Media Minister Mangala Samaraweera, who openly stated he was principally opposed to the death penalty. For Minister Samaraweera, the issue is also a matter of political legacy. In 1956, it was his father Mahanama Samaraweera who moved draft legislation to suspend the death penalty, soon after SLFP Founder S.W.R.D. Bandaranaike’s coalition Government was elected to office.

In a controversial move, Archbishop of Colombo Cardinal Malcolm Ranjith has also lauded the President’s decision to restore the death penalty. Philippines President Rodrigo Duterte has also praised President Sirisena for attempting to replicate his country’s ‘successful’ war on drugs.

Under Sri Lankan law, only two offences carry a death sentence – murder and drug trafficking. Possession of anything over 2 grams of pure heroin, known as diacetylmorphine is punishable by death under the Poisons, Opium and Dangerous Drugs Ordinance. While there has been an unofficial moratorium on executions in place since 1976, judges have continued to pronounce death sentences on convicts, even though execution orders have never been signed since by an executive president. Instead, all death sentences pronounced since 1976 have been commuted to life imprisonment.

The move to resume hangings has drawn sharp protests from activists and lawyers.

“Even in countries with best legal systems you have found miscarriages of justice and carrying out the death penalty is irreversible, and the most fundamental thing is about the sanctity of life is what the law should recognise,” President’s Counsel and former Commissioner at the Human Rights Commission of Sri Lanka, Saliya Pieris told the Sunday Observer.

Pieris PC said there were serious flaws in Sri Lanka’s justice system. “Most of the time, you will find that the death penalty will go against the marginalised and the poor. There is also always the danger of a miscarriage of justice,” he added. Rather than resorting to executions, Pieris says ensuring judicial punishments are not watered down, resisting prisoner pardons and ensuring VIP prisoners are not granted special privileges could restore public confidence in the criminal justice system and offer a more powerful deterrent to crime. Increasing professionalism by the police, ensuring that the police can act independently and lawfully, fast-tracking cases and enhanced protections for witnesses and victims may also have greater deterrent effect.

“And also, in relation to drug trafficking I really wonder how many big-time traffickers are really caught in our legal system,” he charged.

Most lawyers, activists and others who are familiar with what goes on with implementing the capital punishment insist that the mental torment it creates even for the criminal could amount to torture.

If the motive is deterrence, these activists say, there must be consistency in law enforcement, uniformity and expeditious justice and whatever the punishment given by courts should be strictly enforced.

Speaking to the Sunday Observer a senior prosecutor says that life imprisonment should be read and applied and interpreted to mean imprisonment till death and nothing shorter than that. “And this issue of remitting death to life, life to 20 and 20 also into various other reductions should not be done,” the top prosecutor opined.

According to Constitutional Lawyer and Legal Columnist Kishali Pinto Jayewardane, even in developed jurisdictions around the world where the death penalty is, in fact, being implemented innocent people have been convicted due to inefficiencies and mistakes in the legal process. In Sri Lanka, where the criminal justice process has many flaws and the potential of mistaken convictions being high compared with other jurisdictions, she said. “In this context, the implementation of the death penalty brings with it very specific dangers that are more in Sri Lanka than in countries that have inbuilt safeguards in their legal systems,” Pinto-Jayawardene noted. “If an innocent person gets convicted it is an irrevocable mistake that cannot be corrected later,” she added.

Pinto-Jayawardane explained that common to all governments in the country were its direct links with the underworld. “Therefore the nexus between politics, crime, the underworld and law enforcement is without a doubt in Sri Lanka. Without tackling core issues in that nexus, we are looking at a quick-fix, populist solution,” she asserted. All the restoration of judicial executions would achieve would be a few hangings of individuals who will not be politically connected, and will not be central to this politico-criminal nexus, Pinto-Jayawardane added.

One of the most recent cases that sparked public outcry for the death penalty for child-rapists and murders was the 2015 case of five year old Seya. Public anger about that murder was so intense, that people began to call for hanging of the accused without trial. But Seya’s case alone is good enough to reason to take pause on the question of death penalty, legal experts point out. Pressured by public calls to find her killers, the police made two wrongful arrests and prosecuted the two suspects in the court of public opinion before finally nabbing the real killer. Had mob justice prevailed, innocent men could have been hanged for someone else’s crime.

From a criminology perspective, statistically, the fact that capital punishment reduces crime over time has never been proven. In fact, in the US, numerous studies show that murder and crime rates are higher in States that impose the death penalty than in those that do not. In Chicago for instance, organised crime rates are famously highly, but the death sentence is on the State’s law books.

Far from lauding the decision to resume executions, legal experts say the unofficial moratorium since 1976 is also problematic. Prisoners on death row live in limbo, unsure of when the proverbial axe will fall, if the moratorium is suddenly lifted. Secondly, the fact that the death penalty remains on Sri Lanka’s statute books have serious consequences for law enforcement and criminal justice because the law in some countries prohibit the extradition of persons to other state jurisdictions if there is a risk of execution for an offence.

In an article first published in 2007, lawyer and founder member of the Civil Rights Movement of Sri Lanka, which strongly advocates against the death penalty, Suriya Wickremasinghe makes the argument that restoring the death penalty after a long lapse makes a gruesome operation even more so.

In Sri Lanka, if the President follows through on his pledge to restore the death penalty for drug offenders, executions will take place in the prisons for the first time in 42 years.

“There is no hangman who has even undergone the (previously mandatory) training of assisting at executions, let alone performed one himself. No senior prison or medical staff has previously officiated at executions. Quite apart from the possibility of horrendously botched executions, it is wrong to now impose such duties on prison staff and medical officers. If there are some who volunteer, that very fact, in this writer’s opinion, gives rise to grave discomfiture,” Wickremasinghe poignantly remarks in the piece opposing restoration of the death penalty.

Politicians, Wickremasinghe argues, need to make a serious study before taking so grim a step as resuming judicial hangings.

Over the years, notable Sri Lankan politicians have led opposition to the Death Penalty, both at the State Council and Parliament after independence in 1948. Both Susantha de Fonseka and Dr A.P. De Zoysa, an independent elected member for Colombo South, led these efforts at the State Council. The list of politicians who have opposed the death penalty is long but include Leftist icons N.M. Perera and Colvin R de Silva, SWRD Bandaranaike, Mahanama Samaraweera, E.W. Kannangara and Neelan Tiruchelvam.

Interestingly more recently in December 2016 under the same Government of National Unity, Sri Lanka voted in favour of a biennial resolution at the United Nations General Assembly (UNGA) calling for a universal moratorium on the death penalty. In 2012 and 2014, Sri Lanka had abstained from voting on the resolution calling for the moratorium. In 2007, 2008 and 2010 also Sri Lanka voted in favour of the moratorium. Since 2008, the resolution has been taken up every two years.

Activists strongly opposing the death penalty say the saving grace of two pieces of repressive legislation - the Criminal Justice Commissions Act passed to deal with the 1971 JVP insurrection, and the Prevention of Terrorism Act was that both acts excluded the death penalty for acts that would otherwise have attracted it. However, a few of the 1971 JVP suspects against whom there was sufficient evidence under the normal law were tried in the ordinary courts and as a result two were sentenced to death. They escaped execution because once the Government changed in 1977 J.R. Jayewardene began to commute all death sentences, according to lawyer and founder member of the Civil Rights Movement of Sri Lanka, Suriya Wickremasinghe. Jayewardene was against the death penalty and even though the death penalty remained mandatory for murder, he commuted all such sentences throughout his lengthy period in office, first as Prime Minister and subsequently as Executive President.

The JVP has rightly pointed out that executions will not stop the drug menace, but they have claimed they were not against enforcing the law, by which they mean executing offenders, says Wickremasinghe. “They should rethink that position.”


SWRD’s first act in 1956: Suspension of death penalty

The first piece of legislation presented by former Prime Minister S.W.R.D. Bandaranaike upon election to office in 1956 was an act to suspend the death penalty and the appointment of a Commission to inquire into capital punishment, which resulted in the famous Norval Morris Report that recommended abolition, according to Suriya Wickremasinghe. The Morris Report concluded that the death penalty did not have a stronger deterrent effect than long-term imprisonment, and could claim innocent lives as a result of miscarriages of justice and failures of the criminal justice system. Ironically only two weeks after the report was published, Prime Minister Bandaranaike was assassinated, and the death penalty was reintroduced in the nationwide anger that followed the murder of the Premier.