Spare the noose and respect sanctity and inviolability of life

| by Milinda Rajasekera

(October 11, Colombo, Sri Lanka Guardian) In a recently conducted survey, 88 percent of Sri Lankans have reportedly favoured activation of the death penalty. This outcome is not surprising because this is the general view of the ordinary people who abhor crime and think that the death penalty is a deterrent to crime. The controversy over capital punishment is a perennial issue that pops up from time to time in countries around the world and the imposition of this punishment on those found guilty of grave crime is often supported by most people.

Miscarriages of justice are not infrequent in judiciaries of any country. Even in countries where judiciaries are considered advanced, miscarriages have occurred. Years after some persons had been found guilty and sentenced to imprisonment, new evidence emerges to show their innocence. A jailed person could be released in such a situation. But can anyone restore the life of an executed person?

In Sri Lanka too the issue comes up periodically and this time it has come to the fore with the public attention drawn to the recent spate of crimes. This emergence of public interest has apparently galvanised the authorities also into activity. The hangman’s vacancy is to be filled now with a more respectable designation given to the post. Media also carried pictures of the scaffold being examined by the authorities.

Capital punishment in this country has a long and interesting history. It was a method of punishment that existed from the time of our ancient kings. According to records, the death penalty was in operation throughout except for four periods. During the reign of kings, King Amanda Gamini Abhaya, 1st Century AD, King Voharika Tissa, 3rd Century AD, King Sirisangabodhi, 4th Century AD and King Parakrama Bahu II, 13th century AD, this punishment was not operative. Interestingly, King Sirisangabodhi had adopted an unusual practice. Believing that the death penalty had a deterrent effect on crime, the King got the corpses of people who had died natural deaths exhibited to the public as convicted and executed criminals. His intention had been to check crime and save life too. Apparently, it was a similar policy that former President J.R.Jayewardene also followed. He stopped hanging but retained the death penalty in the statute book.

Recent events regarding this issue had begun in 1928 when D.S.Senanayake moved a motion in the Legislative Council for the abolition of the death penalty. 19 members voted in favour, 07 opposed and 11 abstained. It was however rejected by the colonial administration as it was a matter of imperial policy. In 1936 member for Panadura in the State Council moved a motion for its abolition. This motion was rejected after a lengthy debate. In March 1955 member for Kandy moved another motion for the abolition of the death penalty in the House of Representatives. This motion was passed. But it could not be pursued as the parliament was dissolved subsequently.

After the new government was formed the Minister of Justice in April 1956 moved a motion for the suspension of the death penalty for three years. It was passed in parliament but was rejected by the Senate with 12 members voting against and 10 supporting it. However, no execution was carried out since then as the Governor General exercised his prerogative of mercy. Finally, in April 1958 the Suspension of Capital Punishment Act No.20 of 1958 was passed by both houses. Without stopping at that, the government appointed a Three-member Commission consisting of Norval Morris, Sir Edwin Wijeratne and T.Nadaraja to make a study and submit a report. This commission after its deliberations recommended that capital punishment should not be reintroduced. However, after the assassination of Premier S.W.R.D.Bandaranaile the death penalty was reintroduced following public remonstration against the tragedy.

The next phase began with the formation of the J.R.Jayewardene Government in 1977. Since then no person was executed as the president commuted death sentences to prison terms exercising his powers. The last execution was on June 23, 1976. The courts, however, continued to pass death sentences on convicted criminals. In 1983 the late MP M. M.Sivasithamparam submitted to parliament a motion to abolish the death penalty. In his motion he brought out clearly the case for abolishing capital punishment. The motion stated, “(a) Taking cognisance of the human frailties that are present in the judicial process which leads to the imposition of the death penalty, (b) affirming that the death penalty is incompatible with the right to life, and (c) being convinced that the abolition of the death penalty in all countries would represent a great advance in the respect of governments for the human person, this parliament resolves that the death penalty should forthwith be abolished in Sri Lanka.” The MP could not move this motion as he vacated his seat in parliament subsequently.

The present interest also arises from the public assumption that execution of criminals would deter persons from committing crime, although studies carried out on the matter have shown that it has not acted as an effective deterrent. Therefore there is a need for all concerned to have a dispassionate and objective view of this method of punishment. Its adoption could be objected to on several grounds. It cannot be gainsaid that this punishment, though ordered by courts of law, is cold and calculated murder by state which runs counter to the fundamental right guaranteed in Article 11 of the Constitution which says, “No person shall be subjected to cruel, inhuman, or degrading treatment or punishment.” This punishment is also not consistent with hallowed concepts that uphold the sanctity and dignity of human life as provided for in the United Nations Charter of Human Rights which in Article 3 says, “Everyone has the right to life, liberty and security of persons.”

Miscarriages of justice are not infrequent in judiciaries of any country. Even in countries where judiciaries are considered advanced, miscarriages have occurred. Years after some persons had been found guilty and sentenced to imprisonment, new evidence emerges to show their innocence. A jailed person could be released in such a situation. But can anyone restore the life of an executed person? Currently a debate on the death penalty is raging in the US with the scheduled execution of Troy Davis who was sentenced to death for killing a police officer two decades ago in the state of Georgia.

So, this retaliatory punishment which is considered retributive punishment based on revenge – lex talionis, seems to be meaningless killing of people without any benefit to the society. That is why most criminologists, penologists, sociologists, medical experts and other discerning sections of people oppose this degrading and cruel punishment. The remedy for increasing crime, in fact, lies in enhanced respect for life, raising moral standards of people and streamlining of law enforcement activities for quick detection of crime, prosecution of suspects and reformative punishment of convicts.