By Rajan Philips –

Hemasiri Fernando, the former Secretary to the Ministry of Defence (and not Defence Secretary), and Pujith Jayasundera, the former Inspector General of Police, both indicted over alleged crimes of negligence in not trying to prevent the 2019 Easter Sunday bombings, were acquitted in 2022 by a trial-at-bar court of three judges. They have now been sentenced to death by another trial-at-bar court of different three judges. The acquittals were unanimous. In the second trial, two of the three judges found the two men guilty and sentenced them to death while the third acquitted them because the prosecution had not proved the case against them beyond a reasonable doubt. 

In simple arithmetic, four out of six judges ruled acquittals while two judges gave guilty verdicts and death penalties. I see this rather wild swing not as evidence of judicial independence, but as judgemental justice. If the first acquittals were an affront to judicial proceedings, the latest death sentences are a descent into barbarism. Thanks to Pope Francis, the Catechism of the Catholic Church officially forbids death sentence. Imposing the death penalty on a person found guilty of any Easter attacks crime is tantamount to insulting Christ. 

It is not only about Christ and Christianity, Buddhism at its core revolts against the killing of anybody or anything be it for pleasure, pugilism, or punishment. Emperor Ashoka is believed to have been the only state leader in India’s history to have opposed the death penalty. Hinduism is close to Buddhism in espousing the sanctity of life in any form, but is not known to have taken a position on death penalty and left it to rulers as a ‘secular matter.’ 

Some may interpret the Muslim Sharia law as permitting death penalty for various crimes, but a number of Muslim countries do not enforce death penalty as legal punishment. This is the obverse of a handful of Buddhist countries accepting death penalty as legal punishment even though it is in violation of one of Buddhism’s core precepts involving the ethicization of rebirth. As well, a number of countries have death penalty in their books but do not enforce it. Sri Lanka is one of them and that may be giving courts the latitude for appearing harsh and imposing death penalty, knowing full well that no one will be hanged. That again is not restorative justice, but perverse justice.

On the more secular front, a 2007 UN resolution calls for the suspension of death penalty while pursuing its ultimate abolishment. The resolution (#62/149) was passed in the General Assembly on 18 December 2007, with 104 voting for, 54 voting against, and 29 abstaining. Sri Lanka and Nepal were the only two South Asian countries that voted for the resolution. Bhutan abstained while Bangladesh, India, Maldives and Pakistan voted against. 

Sri Lanka would do well to abide by the spirit of the UN resolution, as well as its own constitutional spirituality, and abolish death penalty by legislation. It has been done before when Prime Minister Bandaranaike abolished death penalty in 1956 only to be reinstated after his assassination. It should be done again and it could be a positive diversion for the NPP government from its current tangles involving the judiciary.             

Muted Reactions

Surprisingly and sadly perhaps, there has been no outrage against the imposition of death penalty, only muted reactions. The country has been dragged through so much mass killing between 1977 and 2009, and so many targeted emblematic murders thereafter, that our senses have gotten benumbed to killing and we react only mutedly as a society. Reversing this state of moral torpor may not be easy but there may not be an easier place to start than by ending atrocities by the state and its agents. 

Abolishing death penalty is a good place to start. No better government to do it than the NPP government. And it can claim this to be the first in a series of abolitions to follow – culminating, hopefully, in the abolishing of the executive presidency. It is also the duty of the Catholic Church in Sri Lanka to set the moral tone on this by calling for the abolition of the death penalty in general and for its elimination as a punishment for any of the crimes associated with the Easter attacks, in particular. 

Those who committed the Easter attacks are known and have been accounted for. Those who were negligent in their duties to study the intelligence and forestall the attacks are also known and are being accounted for – even if only two at a time. There is also a category of the ‘known unknowns.’ They are the ones who may have aided and abetted the process that led to the attacks. The NPP government is living up to its election promise of exposing the category of known unknowns. 

In the light of all this, the Church has a duty to dispel the darkness of death penalty in the delivering of justice. To call for the abolition of the death penalty in Sri Lanka is to abide by the Church’s universal teaching today. It would also resonate with the moods and mores of Sri Lanka’s Catholics, Christians as well the followers of Buddhism, Hinduism and Islam. 

A Tortuous Course

The equally indefensible acquittals and death sentences are only symptoms of what has been a rather tortuous course of pursuing justice. First, the pursuit of justice for Easter Sunday victims was severely sidelined by every government – under three presidents – until the election of President AK Dissanayake and the NPP government. Second, the prosecution of direct and indirect perpetrators of the Easter crimes has been chaotic, patchy and selective. 

Sri Lanka is not without experience in prosecuting significant political cases. The trial of the 1962 coup conspirators and the Criminal Justice Commission (CJC) trials of nearly 3,000 suspects of the 1971 JVP insurgency were conducted far more methodically than what we see in the plethora of the Easter attack prosecutions that are at various stages of incompletion over the last seven years. All of the 1962 coup suspects were released on appeal on a constitutional point. A majority of the JVP suspects were given suspended sentences and the prison sentences given to the principal suspects were later politically commuted. No one in either case was sentenced to death. 

In dealing with both the coup suspects and the JVP insurgents, Sri Lanka did not have established legal instruments to conduct the respective trials. New legislations had to be enacted and sometimes more than once to pass constitutional muster. Yet the country and the governing system measured up to its challenges.

 After 1977, the country became awash in political violence, first with the rise of Tamil separatism and then the JVP’s second coming, both inviting state reprisals, not to mention the Indian peace keeping sojourn of the violent kind. The government at the time responded with counter terrorism laws and crackdowns. Yet in all the cases involving terrorism, I do not think anyone was given a death sentence. Now the debate is over rescinding the Prevention of Terrorism Act. But death penalty is back again. What is the point in rescinding PTA with the legislative hand and reinstating death penalty with the judicial hand? Where is anyone’s independence here? 

There are hundreds of Easter attack suspects suspended in trials. There are more than a handful of state officials including a former President who have been named for their negligence and their failure to prevent the Easter attacks. There are also ongoing investigations and detentions of others who are suspected of having more than prior knowledge of the Easter attacks. Out of all these two have been plucked like coconuts to stand trial and have had both the best and the worst of all cases. They were acquitted first and now they are condemned to death. Nothing in their life stories and career trajectories would even remotely suggest that they would one day, post retirement, be sentenced to death. Yet no one is outraged and everyone is in mute mode about the tortuous course of justice.