Capital punishment: Pathways and pitfalls | Sunday Observer

Capital punishment: Pathways and pitfalls

What is the most critical issue affecting the country today? If you thought it was the ‘curse’ of the 19th Amendment to the Constitution or the up and down performances of our cricketers at the World Cup, think again. Instead, it is the raging debate about the introduction of the death penalty.

While it may seem a peripheral issue for some, it is not- and that is because more than four hundred and fifty prisoners are languishing in death row. For them it is a life and death issue, quite literally. This will also define who we are as a country and our standing in the eyes of the international community.

The sudden hullabaloo about the death penalty has arisen because President Maithripala Sirisena announced last week that he had signed the death warrants for four prisoners on death row. All that remained to be done was for them to be executed, he said, adding that they could still appeal for clemency.

That has sent alarm bells ringing. To be fair, the President has publicly said that he would do this many months ago, but this was the first indication that he had in fact signed the death warrants. International organisations and western nations have rushed to protest. Others have taken to the courts of law to try and stall the move.

One could argue, as President Sirisena has, that this is Sri Lanka’s business and that the international community has no right to poke their nose in our affairs. After all, even certain states in the United States implement the death penalty and the international community doesn’t censure America for that.

President Sirisena contends that his is a fight against drug trafficking- and only that. He claims that by implementing the death penalty for convicted drug offenders, he would be sending a significant message of deterrence to would be offenders and that would help eliminate the drug menace from the country. He points out that prominent Asian nations such as neighbouring India, Japan, China and Singapore retain the death penalty and carry out executions fairly regularly.

The President hasn’t also been diffident in showing his appreciation of President Rodrigo Duterte of the Philippines. Duterte campaigned on a theme of ending drug related crime in that country which saw the deaths of some 3,000 persons in his first three months in office that elicited strong international condemnation. The main argument against the death penalty is that it is irrevocable. Studies have shown that, when enacted over a period of time and when a sufficiently large number of people are tried, convicted and executed mistakes are invariably made- and wrong persons may be executed.

There are many cases to support this argument including some which have gone on to make legal history. Dozens of cases are on record where the wrong person was found guilty of a crime and executed- only for scientific advances or indeed a confession occurring years later to reveal that he or she was in fact not guilty of the offence. To err is human and judges and juries are, after all, only human.

It is because of this that the vast majority of countries in the world have abolished the death penalty. Even in countries that still retain the death penalty in their legal system, there is an unofficial moratorium with no executions being ordered. Sri Lanka too, until now, fell into that category with its last execution being undertaken in 1976, over four decades ago.

It is worthwhile noting that this is not the first instance when the death penalty has had political connotations in this country. When S.W.R.D. Bandaranaike swept into power in 1956, he suspended the death penalty which was a residue of the British bred legal system that the nation, then Ceylon, inherited from its colonial days.

In what was a cruel twist of fate, Bandaranaike himself was assassinated three years later and in its aftermath the government of the day rushed to reintroduce the death penalty for murder. The man who pulled the trigger, Thalduwe Somarama, a Buddhist monk, was executed in 1962.

However, it was J. R. Jayewardene, who steamrolled into office with a five-sixths majority in Parliament in 1977 virtually abolished the death penalty under his slogan of establishing a ‘dharmishta’ society.

In what was a further ironical twist, it was S.W.R.D. Bandaranaike’s daughter, Chandrika Kumaratunga who tried to reintroduce what her father had done away with. That was after the killing of High Court Judge Sarath Ambepitiya who had a reputation for taking a tough stance on drug related offences. However, she was not successful.

The challenge we now have is the issue of capital punishment becoming a personal crusade. President Sirisena said as much this week when he claimed that he had received intelligence information that he was the subject of death threats because of his campaign to reinstate capital punishment. In fact, it is no exaggeration to say that his critics including the Sri Lanka Podujana Peramuna has accused him of bringing this issue to the fore to bolster his chances of re-election.

By all means there is no harm in having a healthy discussion about the merits and demerits of capital punishment in our society. That discussion could run parallel to another debate about the deleterious effects of drug trafficking. That would inform the public of the pathways and pitfalls related to both issues.

There are also other ways in which a decision could have been reached. This is a country where presidential commissions of inquiry and parliamentary select committees are appointed at the drop of a hat. That could have been done to assess the suitability of reintroducing the death penalty. The views of experts could have been sought, instead of rushing in where other nations have feared to tread. However, what has happened now is that a unilateral decision has been taken to reintroduce the death penalty and many individuals and organisations are up in arms as is the international community. A foreign envoy summed up the issue well when he said that Sri Lanka is in the news again for all the wrong reasons.

For now at least, the matter has been taken to the Supreme Court where it will no doubt be canvassed zealously. The highest court in the land did not fail the country late last year when its democratic system was in peril. We hope it has the courage of its convictions to deliver the right verdict again.