By Laksiri Fernando –
As Australia is stunned and saddened by Indonesia’s adamant decision to go ahead with the execution of two young Australian convicts of drug trafficking, Andrew Chan and Myuran Sukumaran, without listening to many appeals, it is shocking to hear from the new Minister of Justice in Sri Lanka, Wijedasa Rajapakshe, whom I considered in high esteem as a rational person before, that Sri Lanka would reinstate capital punishment (if necessary) to curb crime in the country.
In the latter case, even I wondered whether there is anything intrinsically wrong with the name Rajapaksa!
The two parallels remind us how inhuman or cruel our public policies still are irrespective of the progress that we humans have achieved in science and technology. Of course drug trafficking, murder, rape and child abuse are all reprehensible and indications of the same ailments in society and in the systems of governance. It is also an established fact that most of those who indulge in crime and violence are those who are closer to or part of the power structures in society whether in developing or developed countries. Sri Lanka is a good example.
There is no denial that the questions of crime are complicated and endemic in countries like Indonesia or Sri Lanka compared to a country like Australia. The scales are different. Sri Lanka’s population is more or less the same as Australia’s for its smaller size and Indonesia’s is more than twelve times higher. However, that does not preclude us to device common policies on how to tackle crime or how to punish them. Our knowledge of ‘Homo sapiens’ and their natural conditions or why people are motivated for violence or crime are more or less the same, although that knowledge is not complete or perfect.
However, capital punishment is not a clear deterrent for crime or homicide. There are of course dangerous criminals who could be a further danger to the society. They should be kept in imprisonment. The life imprisonment is the best device that the world has invented in protecting society and punishing major crimes. What constitutes major crimes can also be in dispute. Be as it may, the capital punishment or killing for killing or for any other crime cannot be condoned.
Andrew and Myuran
I have been repeatedly seeing for the last couple of months or even before on Australian TV, the pictures of Andrew Chan and Myuran Sukumaran, who were pushed and jolted by the prison guards whenever they were being taken in or out of courts for their trials or appeals. These are shown by the journalists who of course want to create sympathy for their predicament as they are in line for execution. That is one advantage that we have today through media and the newest technology in knowing what is happening throughout the world in order that we can make up our concerned opinions or make our protests known.
No one says they are innocent and even they have not said so. The following is a statement or an apology made by Myuran on their predicament.
“I acknowledge more than anyone that I’ve made mistakes and that I’m not a perfect person, but I’ve learned a lot in prison and I am grateful to the Indonesian justice system and to the prison guards for allowing me to achieve all that I have for myself and for the other prisoners.”
“Fellow Bali 9 member Andrew Chan and I are not the same people we were 10 years ago, but who is really? We did commit a serious crime and deserve punishment, but we have also paid a great deal for our crimes, as have our families. Please allow us to stay in prison and live.”
The story unfolded ten years ago when a group of nine young Australians aged between 18 and 28 in April 2005 were arrested in Bali for planning to smuggle 8.3 kg of heroin worth around A$ 4 million from Indonesia to Australia. Hence it was called Bali Nine. After several rounds of trial, all others were sentenced for life imprisonment but all appeals and clemency pleas have gone unheard for Chan and Sukumaran for one reason or the other. They are supposed to be put on death by firing by the end of this month.
The crucial question however is whether their killing is really necessary? Can’t they have any mercy? Capital punishment on them is absolutely cruel and barbaric. They can really be rehabilitated.
It is in this context that Sri Lanka’s new Justice Minister’s statement in Kandy on 3rd February, at a press conference, is worrying who said that “the government would not hesitate to consider the implementation of the death penalty, if the crime rate keeps rising.” There is no doubt that the crime rate is rising. There is no doubt that the curtailment of the crime rate is also not easy. However, the solution is not capital punishment whether it is murder, rape drug trafficking or child abuse.
It is not that Sri Lanka is at present free from capital punishment and the right to life is absolutely respected according to the Universal Declaration or the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). Sri Lanka is one country which has not implement the capital punishment since 1976. However, the number of people who are on the death row have been increasing as a reflection of the rising crime rate for other reasons. It is reported that there are over 900 convicts in prisons who are sentenced to death, and around 500 of them have appealed their cases. However, the other 400 are waiting until their sentences are (though capital punishment) commuted for life imprisonment or even without knowing their future fate at all. This is in itself is inhuman. As the local saying goes, ‘it is like killing without killing’ (nomera maranewa wage).
It is true that non implementation of the capital punishment or the abolition of the capital punishment in itself is not satisfactory. If necessary measures are not taken to prevent, control and reduce crime, then the crime rate would naturally increase. What is truer is that capital punishment is not a remedy for crime.
What have been lacking since the non-implementation of the death penalty, or even otherwise, in Sri Lanka are the preventive measures such as the systematic policing, stronger civil-police relations and proper ‘human rights and civic education’ for both the police and the civilians, beginning with school children.
The prevention of crime should begin at the top level, to be an example for the ordinary people. When the leaders of the country at the highest body of the legislature or Parliament speak and behave like criminals, it would be difficult to prevent crime in the country. Many provincial council leaders or local government politicians are worse. Most despicable and harmful are the interference of politicians in police affairs and their protection of criminals on partisan basis, whether they are in the government side or the opposition.
The deterioration of rule of law has been a primary reason for the increase of crime rate. The rule of law should be implemented not only in civil affairs but also in commercial and business affairs. With the expansion of commercial activities, there has emerged quite a substantial sector of illicit trade and commercial activities to earn quick money with the patronage of politicians of all sides. Without stopping those activities and connected legal loopholes the rise of crime rate might not be curtailed.
Equally responsible is the deterioration of professional standards and independence of the judiciary. Without a strong, well trained and an impartial judiciary, crime cannot be curtailed in any country. The delay of court cases and lack of free or reasonable legal assistance have led to many miscarriages of justice. In such instances, people have taken justice into their own hands, becoming criminals or perpetrators themselves. Land disputes have led to many civilian conflicts and criminal actions.
If people are empowered of their due human rights, they themselves can become a deterrent to crime. They can resist and bring crime to the notice of the authorities speedily. Unfortunately, ordinary citizens are scared to assert this deterrent role because many politicians and police authorities are behind some of the criminals and criminal gangs. The role of the media is also important not for sensational reporting of crime stories for sale but to bring criminals and criminal networks to the notice of the authorities. But unfortunately this is not the case at present.
The recent history of the capital punishment has been quite erratic in Sri Lanka. Prime Minister S.W.R.D. Bandaranaike abolished the capital punishment in 1956 in good faith and then he was assassinated in 1959. That does not mean that he would have been saved if the capital punishment was not abolished. Thereafter his immediate successors reintroduced it retrospectively and the assassin was hanged for the crime.
Since June 1976 no one has been executed under the capital punishment, but there has been a spate of extrajudicial killings and assassinations for various political reasons and as a result of violent political upheavals. During 1990s, several times the then President Chandrika Kumaratunga wanted to implement the capital punishment again but both internal and external pressure prevented it. In 2004, even the Bar Association of Sri Lanka (BASL), the foremost lawyers association, wanted to implement the capital punishment without restrictions, after a High Court Judge was gunned down.
All these were instances of spontaneous or knee-jerk reactions without mindful of required policies and principles to address the issues of crime or punishment. If one traces the ancient history, there had been times that the country was free from capital punishment. Among the kings who abolished or suspended the death penalty was King Voharika Tissa of the Third Century who was reported to be a humanist. This shows that while there had been periods of cruel and inhuman punishments, as Robert Knox had recorded, there were also periods of enlightenment and sophistication. In the case of the latter, the principles undoubtedly were derived from Buddhist and Hindu humanitarianism. No one can perhaps go to the extent of King Siri Sangabodhi who even sacrificed his own head to save others. However, there is a need for humanism and human rights in criminal justice administration, particularly today, where there are highly developed international norms and principles that Sri Lanka should follow.
There are contradictions in the statements of the new government on the subject of capital punishment. Otherwise, Sri Lanka is one country which could easily abolish capital punishment as the sentences have never been implemented since 1976. It is only one step forward. Reportedly, the Prime Minister has given an assurance to the human rights community promising to accede to the Second Optional Protocol to the ICCPR. This optional protocol is not just another human rights declaration, but a binding agreement to abolish the capital punishment.
On the other hand, the statements made by the Minister of Justice that the government would not hesitate to implement the death penalty, if the crime rate keeps rising, is not only contradicts Prime Minister’s statements but also go against the expectations of the human rights community within and outside the country about the new administration.
The issue of capital punishment is not merely a Sri Lankan matter but an international one. The threatened lives of Andrew Chan and Myuran Sukumaran in Indonesian jail show the barbarity and cruelty of the capital punishment. Although there haven’t been such dramatic cases in Sri Lanka like in Indonesia in the recent times, if capital punishment is implemented again, then nearly 400 people’s lives might be in danger whose sentences are not yet commuted. It is also possible that since the capital punishment has not been implemented for a long period, that the judges were quite liberal in ‘sentencing people to death’ instead of life imprisonment directly. If that is the case, there can be a major miscarriage of justice, if the ‘threat’ of the Minister of Justice materializes in implementing the capital punishment.