Readying the hangman’s noose

| by Kishali Pinto-Jayawardena

( September 16, 2012, Colombo, Sri Lanka Guardian) It is a profound paradox of sorts that while Sri Lankans fight to save a hapless Sri Lankan housemaid from public execution in Saudi Arabia, this government itself is readying the hangman’s noose for implementation of the death penalty after more than two and a half decades of being a de facto abolitionist country.

No deterrent to crime

The procedure would be that case records of prisoners sentenced to death will be called for and reviewed on a case by case basis. The observations of the judge who tried the case will be forwarded to the Attorney General for instructions and thereafter sent to the Minister of Justice who will make his recommendations and in turn pass it on to the President. If all three reports are adverse, the presidential signing of the death warrant will take place and “..he (she) will be hanged by the neck until he (she) is dead”.

The main rationale behind this move to reactivate the death penalty is that it would act as a deterrent to the exponential rise in crime and in acts of sexual violence. There is however a major issue that is missed in this fervent debate for and against this proposed move. Essentially as the facts demonstrate, large numbers of individuals accused and caught in these crimes are members of the provincial and local political structures of this very administration.

They are not subjected to the rigour of the ordinary criminal justice system and we see in recent newspapers reports that many of them have been let out on bail even after serious and credible evidence has been put forward regarding their participation and instigation of the rape of children. In such a situation, is it not totally ludicrous to believe that the mere reactivation of the death penalty will actually arrest the spread of crime? On the contrary, is this not a populist move, announced with much fanfare and perhaps accompanies by one or two demonstrably showpiece executions purely for the perception that the problem is being tackled while in actual fact, this is veritably not the case? This is an important question to which we should address our minds.

Serious weaknesses of the policing system

Then again, what about the serious weaknesses of the criminal justice system and the policing system? Are these to be magically remedied by a stroke of a wand as it were, by the reactivation of the death penalty? It is a fact that the police investigations procedures are completely undermined by politicization, corruption and inefficiency. On its own part, the present criminal justice system is riddled with deficiencies in the securing of justice. Would not the resumption of executions gloss over these fundamental defects without addressing them at the core? And there is little doubt that a brutalized society in this country, accustomed to death and destruction after decades of conflict would be further brutalized by the grisly spectacle of individuals being intentionally killed by the State.

In any event, the present law mandates that the death penalty could be imposed by “an order of a competent court made in accordance with procedure established by law”. To what extent however is the order of such a competent court infallible? Instances where persons convicted as criminals and hanged but later found to be innocent proliferate in other jurisdictions. For example, in the United Kingdom some years past, Hanratty, a twenty five year old petty criminal was hanged more than three decades ago for the murder of a man and the rape of his girlfriend. After all that time, fresh evidence revealed that vital evidence that could have led to his acquittal had been suppressed at the time of his trial. This evidence had been suppressed by senior police officers.

The disclosures led to a wave of public indignation at that time. Friends and family who had always been convinced that Hanratty had nothing to do with the murder hailed the new evidence as vindicating their fight to clear his name. Hanratty had been used as a scrapegoat by the police when public horror at the nature of the crime drove them to seek a conviction at any cost. The case is now being used as a good example of the dangers of capital punishment.

The killing of innocents

Then again, in February 1998, an appeal court in the United Kingdom posthumously overturned the conviction of Mahamood Hussein Mattan, a Somali national who was executed in September 1952 after a trail strongly tainted by racism. In February 1994, authorities in Russia executed Andrei Chikatilo for the highly publicised murders of 52 people. The authorities acknowledged that they had previously executed the wrong man, Alexander Kravchenko, for one of the murders in their desire to stop the killings quickly. Another innocent man suspected by the authorities of the killings committed suicide. On 21 April 1998, the Supreme Court of Uzbehkistan posthumously quashed the conviction of a former Uzbek government minister, Usmanov who was executed in 1986 on charges of corruption. A number of countries which retain the death penalty have recently released condemned prisoners who were mistakenly convicted. They include the Phillipines, Malaysia, China, Taiwan, Trinidad and Tobago, Malawi, Turkey, the United States of America and Japan. In the latter country, two innocent prisoners were released after each spent 34 years under sentence of death.

Serious reforms needed to address the issues

Moreover, even on a substantive basis, the argument that the activation of the death may deter people from resorting to violent crimes is not actually correct. A Commission on Capital Punishment in Sri Lanka in the late 1950′s echoed this view. In 1995 for example, a decision of the South African Constitutional Court declared the death penalty to be incompatible with the prohibition of “cruel, inhuman and degrading treatment” under the country’s interim constitution. The judgement had the effect of abolishing the death penalty for murder.

Even in developed countries with a functioning criminal justice system, the risk of an innocent individual being put to death by the State is a very real risk. What Sri Lanka should engage in currently is indepth reforms to address the actual situation of criminality in the country, its causes and the means available for combating it. Activation of the death penalty is certainly no solution to our problems.