22 October, 2019

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Death Penalty: Sirisena & Duterte; Lost In Translation?

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

When President Sirisena announced his intention to hang the convicted drug offenders lingering in the death cells of Welikada prison, he was congratulated by President Duterte of the Philippines. When he returned from a recent visit to the Philippines, President Sirisena publicly expressed his admiration of the manner in which President Duterte was dealing with drug offenders in that country. Sirisena and Duterte appear to have misunderstood each other. The death penalty was abolished in the Philippines in 1987, and Duterte’s method of dealing with the drug problem has been to order the police to kill suspected drug dealers and drug users. Thousands are reported to have been murdered in their homes and on the streets. Duterte once claimed with pride that he himself had killed one or two. Sirisena does not appear to be aware of the paraiah status that Duterte has earned for himself within the international community. 

President Sirisena has reportedly signed four death warrants requiring the prison authorities to kill one woman and three men by hanging them by their necks until they are dead. It is not known how these four persons were singled out, and by whom. It was earlier reported that the President had identified nineteen prisoners from among those convicted and sentenced to death as those who had been indulging in the drug trade from within the prison premises. That, of course, cannot be the basis for signing a death warrant. None of them have yet been indicted or convicted of the offence of drug trafficking from within prison premises. A prisoner has first to be charged with that offence, convicted and sentenced to death by a court, had his appeal dismissed, and then been recommended for execution by the Minister of Justice before the President can sign his or her death warrant. Any other course of action will constitute extra-judicial murder. 

The legislative history

The death penalty was suspended in 1956 by Act of Parliament on the initiative of Senator M.W.H. de Silva, K.C., Minister of Justice in S.W.R.D. Bandaranaike’s government. In an emotion-driven decision, it was hurriedly restored through a flawed emergency regulation following the assassination of Bandaranaike in 1959. In 1976, when I was Permanent Secretary to the Ministry of Justice, a policy decision was reached to suspend judicial executions. Consequently, on 22 May 1977, the fifth anniversary of the Republic, President Gopallawa commuted the sentences of everyone on death row: 144 men and 3 women. Thereafter, President Jayewardene and his successors in office, Presidents Premadasa, Wijetunge, Kumaratunge and Rajapaksa, commuted every sentence of death.  

The constitutional obligation

Then, as now, the Constitution prescribed the procedure to be followed when an accused person was sentenced to death by a trial court. Article 34 of our present Constitution states that, following the imposition of such sentence, the President shall cause a report to be made to him by the trial Judge. He shall forward such report to the Attorney General for his advice. Thereafter, the President shall send both reports to the Minister of Justice who will make the final recommendation whether the sentence should be carried out or whether it should be commuted to life imprisonment. When the President acts on that advice, and makes the appropriate order, the case is closed. The death sentence cannot be reinstated.

The procedure followed when Mr Felix Dias Bandaranaike was Minister of Justice was prescribed in a ministry standing order. If either the trial Judge or the Attorney General had recommended that the sentence should not be carried out, the Minister advised that the sentence be commuted to one of life imprisonment. If the trial Judge and the Attorney General had both recommended that the sentence be carried out, a senior assistant secretary examined the case record and the investigation notes for one of three elements: (i) evidence of premeditation (ii) excessive cruelty in the commission of the murder (iii) any other material that “shocks the conscience”. If one of these elements was present, the Minister advised the President to let the law take its course.

The Prime Minister has declared that his political party is opposed to the death penalty. Therefore, if the Minister of Justice had, in performing her constitutional duty, followed the policy adopted by her predecessors for 43 years, and advised that every death sentence be commuted to life imprisonment, there would be no prisoners today under sentence of death. They would be serving life sentences. A prisoner serving a life sentence cannot now be hanged. On the other hand, if there are prisoners still lingering in death row, it means that the reporting procedure in respect of them, as required by the Constitution, has not yet been performed, and they cannot therefore be hanged. It is, of course, possible that the Minister of Justice had, in defiance of her party policy, and in order to accommodate the President’s publicly declared wish to have at least a few human beings hanged before his term of office ends this year, recommended execution. If that be the case, the Minister’s recommendation will surely be challenged in court as having been influenced by irrelevant considerations. The Minister would not have brought to bear her own independent judgment as required by the Constitution but would instead have been influenced by the President’s publicly declared desire.

Empirical evidence

There is now an international commitment to abolish the death penalty. This is not only because of the desire to respect the dignity of the human being and the sanctity of human life, but also because the global empirical evidence demonstrates beyond any shadow of doubt that the death penalty does not serve as a deterrent. The most effective deterrent to crime is the certainty of detection. Competent policing, efficient prosecution, and expeditious trial – none of which are evident in Sri Lanka today – should be the primary objective of the government. If, in the absence of such deterrent, an individual proceeds to a life of crime, the progress that humanity has made through the centuries now demands that that individual be afforded an opportunity for rehabilitation, for reform, for repentance, for hope, for spiritualty, so that one day he or she may be able to enjoy those fundamental rights and freedoms which others outside the prison walls enjoy, but which are only possible if his or her right to life is not extinguished.

The international consensus

The Second Optional Protocol to the International Covenant on Civil and Political Rights requires that no one shall be executed and that each State shall take all necessary measures to abolish the death penalty within its jurisdiction. In 1983, the Council of Europe abolished the death penalty in peacetime, and in 2002 abolished the death penalty in all circumstances, including wartime.  Similar instruments have been adopted by the states parties to the American Convention on Human Rights. In 2014, the African Commission on Human and Peoples Rights developed a protocol on the abolition of the death penalty. More than 160 of the 193 member-states of the United Nations have abolished the death penalty or introduced a moratorium, either in law or in practice. They include all the countries of Europe including Russia, nearly all the countries of Africa, and all the countries of South and Central America and Canada, as well as Australia, New Zealand and much of the Pacific and the Caribbean.

Violation of a fundamental right

Article 11 of the Constitution states that “No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. There is now a considerable body of international jurisprudence on the interpretation of this Article. For example, the Constitutional Court of South Africa has held that the death penalty is a “cruel punishment”. The Court of Appeal of Tanzania has held the death sentence to be both “cruel and degrading punishment”. In Canada, three Judges of the Supreme Court expressed the view that capital punishment per se constituted “cruel and unusual punishment”: “The death penalty not only deprives the prisoner of all vestiges of human dignity. It is the ultimate desecration of the individual as a human being.” The Judicial Committee of the Privy Council is among several courts which have held that the mandatory sentence of death, based solely upon the category of crime (e.g. drug related offences in Sri Lanka), without regard to the offender’s personal circumstances or the circumstances of the particular offence, constitutes “cruel, inhuman or degrading treatment or punishment”. 

Breaking the 43-year moratorium

If Sri Lanka now breaks its 43-year moratorium on executions, it is inevitable that economic concessions granted by the European Union including GSP+ will be withdrawn. Assistance from abroad in the investigation of crime will not be forthcoming. Requests by Sri Lanka for the extradition of persons awaiting trial or already tried and convicted will probably be refused by other States because of the unpredictability of the sentencing policy of the Government.

It was only a few months ago that President Sirisena, in elaborate island-wide ceremonies, proclaimed the Tripitaka as a national heritage, and called upon the international community to inscribe it on the UNESCO Memory of the World Register. Many beyond our shores who truly and faithfully adhere to the philosophy of life based upon tolerance and compassion as expounded by the Buddha will now stand aghast as the President of the only country in the world whose Constitution requires the State “to protect and foster the Buddha Sasana” addresses four human beings confined in a prison cell and tells each of them: “You are beyond the pale of humanity. You are not fit to live among humankind. You are not entitled to life. You are not entitled to dignity. You are not human. I will therefore annihilate your life”.

A concluding vision

Despite his apparent uncontrollable desire to exercise his power to have a woman and three men killed, it is unlikely that President Sirisena will be present to witness each of them being hanged by his or her neck until he or she is dead. Therefore, for his benefit, I would entreat him, at sunrise on each of the four mornings, to read to himself the execution of the death penalty as described by Professor Chris Barnard:

“The man’s spinal cord will rupture at the point where it enters the skull, electro-chemical discharges will send his limbs flailing in a grotesque dance, eyes and tongue will start from the facial apertures under the assault of the rope and his bowels and bladder may simultaneously void themselves to soil the legs and drip on the floor”.

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Latest comments

  • 8
    2

    Dr. Nihal Jayawickrama,

    RE: Death Penalty: Sirisena & Duterte; Lost In Translation?

    “When President Sirisena announced his intention to hang the convicted drug offenders lingering in the death cells of Welikada prison, he was congratulated by President Duterte of the Philippines.”

    Sirisena is a Para-Sinhala Para-Buddhist.

    Duterte is a Para-Hispanic Para-Catholic.

    What is the difference? Does it count?

    Both are exploiting suckers.

  • 2
    1

    If Maithripala Sirisena is scared to the NGOs and to the Sponsors of Drug dealers, just hand over the govt to DUTERTE. Phillipinos will remember him as a Leader. If not bring back white vans and Greese Yakas.

  • 13
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    Yes, actually our judicial system has not only saved the lives of the four prisoners, it has also saved the idiot Sira from becoming an international Pariah like Duterte.

  • 3
    1

    Duterte’s method of dealing with the drug problem has been to order the police to kill suspected drug dealers and drug users.

    The philippine police is qualified enough to choose the suspected drug dealers, Here they will not deal with politicians , and deal with only some see the present situation.

  • 0
    2

    DUTERTE did not hang and did not wait until NGO dollar kaakkaas are saying OK hang those they are not our people.
    Duterte, got Army to jump into their houses and wipe out them. Duterte wiped out even Drug Pushers.
    So, better if some one can get those drug pushers inside the parliament too.

  • 0
    5

    I think the best is White Van or similar tactics. Just get rid of every drug Dealer including Parliamentarians. The HANGMAN is a very slow process. That is why Gotabhaya Rajapakse is the man. Just finish it. They will settle after sometime.

  • 0
    5

    I think President should had had two ways. White can must have been another to wipe out those who are outside and those parliamentarians. You can not be both spiritual and a strong ruler at the same time. Just do it. Ask the CJ to close the rule book and take decisions.

  • 6
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    Isn’t it ironical on the part of the man who happens to hold the country’s Presidential post to ceremonially proclaim the ‘Tripitaka’ island wide as a national heritage and call the the UNESCO to inscribe on it’s Memory of World Register, to now scrap the country’s sacred 43 year old moratorium against the death penalty?

  • 4
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    Rajeeva Jayaweera should read this provided he can understand

  • 9
    0

    Sirisena is a fool. He is trying to show the country that he is a no-nonsense tough guy like Gota. In fact he is a weakling with an over inflated ego.

  • 6
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    Sirisena would never become a Duterte who has made a real change in that country. Sure, the human rights activists found his actions were beyond all ethics and morals, however, Duterte managed himself to control the drug menace in Manila alone.
    In Srilanka, Nimal lanza who is proved to be one of the key drug dealers Mafia boss in Negmbo area are close to Rajapaksha and Sirisena symbiosis. A man who has failed to take the SHARKs of all probelms be punished, though came to power promising it, how can he make wonders. He has no balls even to ba good GRAMASEKA of the day.
    Sirisena should be hung a way before going to execute any other high criminals because he betrayed over 6.2 mio of voters as a glass wall collapsed, sending message across that people have no more hopes.
    Even today, pointing the finger at others, he has been just killing the time, paying the way Rajapakshe and his men to return to the power.

  • 3
    1

    Sirisena should stop extrajudicial killings first, before executing those in Death Row.
    https://www.google.ca/search?source=hp&ei=_80hXeHlE4LHtQaw5oagBQ&q=sri+lanka+extra+extrajudicial+killings&oq=sri+lanka+extra+judicial+&gs_l=psy-ab.1.0.33i160.7725.23868..27741…0.0..0.107.1975.23j2……0….1..gws-wiz…..0..0i131j0j0i22i30j0i22i10i30j33i22i29i30.pfxRq3eLqDA

  • 5
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    there is no point in telling sirisena anything until he sits for the a level and passes it

    • 1
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      nalmen – This ignoramus President should sit for the Law College examination and come out as a ‘lowyer’, just like the GCE (OL) failed Mongol son of Medamulana Meeharaka Percy Mahendra Rajafucksha

      • 1
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        Mikiyo, Medmaulana Meeharaka seems to be somewhat silent these days for some unknown reasons. But BPs of their nature go on promoting Rajaaksehs through their loudspeakers (Derana TV and Hiru TV), just tell me why media ethics seems to be that resistant to those afore mentioned channesl ? Would the kind of channels survive in the UK ? Never.
        Germany, if anyone spread the kind of lies to the magnitude Derana TV and Hiru TV channels have been, they will have to pay lot more fund to save them bums.
        All in all, nothing seem to come up to block Derana even if They spread lie behind the other like for example about Dr Safi s ops. The facts say, he is not even the specialists to be able to continue such OPs byhis own, but he is one of the panel doctors in a team of surgeons, anasthesists and nurses.

    • 2
      0

      To start with, will someone please translate to Sinhala the paragraph of Prof. Chris Bernard given at the end of the above Essay and post it to MY3 under http://www.tell.president.gov.lk for at least his staff will know the mentality of their Boss – and one of them will tactfully leak the
      version to him someday!

  • 2
    0

    Sirisena is uneducated, has no morals or scruples & is blatantly self serving, desperate to hold on to power no matter how. Therefore, his controversial actions are to be expected, even if the life of a human being is at stake, just so that he can remain in power. However, the fact that the politically inspired Buddhist clergy, who are normally quick with matters relating to the State, are silent on this issue indicates they are in favour of the death penalty as well. The fact that the Asgiriya Chief publicly condoned stoning of Muslims, it seems that these so called learned monks don’t practise what they preach (the 5 precepts) & seem to have forgotten that the Buddha even pardoned Angulimala, a mass murderer. Does it mean that the sermons these monks dish out is only for listening, which alone will ‘purify’ the soul?

  • 1
    0

    “A concluding vision

    Despite his apparent uncontrollable desire to exercise his power to have a woman and three men killed, it is unlikely that President Sirisena will be present to witness each of them being hanged by his or her neck until he or she is dead.”

    Convoluted thinking of an 82 year old Colombian who still has to sing for his supper.

  • 1
    0

    President must take into mind and live as if LTTE is alive and kicking. Do not go on defence. chase behind them.

  • 0
    0

    Aloy, it is certainly not the ‘Convoluted thinking of an 82 year old Colombian’ but these are clear, soundly based comments. The reference to the age of the author and the label you have chosen to apply to him are irrelevant and only reflect the poverty of your own thinking..
    But while on the subject of the article, surely, it is the role of the President’s many advisers and support staff to ensure that the necessary laws and regulations are properly complied with before they submit any document to the President for his signature. How come they seem to fail to do so time and again? What on earth for are they paid so well and rewarded so handsomely? I wonder whether they realise that the many Presidential blunders reflect on them as well.

  • 0
    0

    I am bewildered by certain aspects contained in this article. There is no publicity on the names of the individuals and the precise date and time for their execution. But NJ is seems to know better that a woman is definitely one of the first to go. I agree with NJ that one is punished on the conviction of the offence committed and not for anything else. If a convicted drug dealer can continue his trade while in Prison, what kind of a prison is that? Doesn’t that follow that even prison officials are in the game? Has a single prison official found guilty for that? NEVER! Maru Sira must first fix the malaise prevalent in prisons. The sinister motive for the implementation, in my view, was expressed in previous comments of mine and the excuse that a particular convict is involved in the trade is to pick and choose of Sira’s liking. The procedure involved in either pardoning or executing a condemned prisoner is laid down in Article 34. But that does not obligate the President to follow any advice given (Unlike the 72 constitution where NJ was a part of that governing system.) Upon reading NJ’s article one gets the impression that Sira has signed the orders to hang prisoners who are already pardoned. ARE WE QUITE SURE ON THAT? When NJ says that FDB advised the President to let the law take its course does he mean that in giving a pardon the course of the law does not take place? In simple terms FDB advised the President to HANG. Though Ranil now says that he is opposed to hanging his party supported it in the Cabinet when the proposal was first put in. He too is a Humbug.

  • 0
    0

    Fred, he was the “Adviser” to MR from 2008 until the end of his term. Google and see for yourself. And it is his misdeeds that created the current situation. Probably he wants to be an adviser again like the proverbial Paski, the SOB who was the chief architect of RW’s policy making apparatus.

    • 0
      0

      The role of an adviser is no less honourable than any other honest occupation. Wat matters is the quality of the advice given. The point of my last comment was that it seems the President’s advisers are as clueless as he is and are not doing their duty properly

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