15 December, 2019

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Enforcing The Death Penalty – A Violation Of National & International Law

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

The reports in recent newspapers that President Sirisena “will commence signing death warrants”, and that the prison authorities had been requested to send him nineteen names of prisoners in death row who are dealing in the drug trade while in prison, raise serious legal issues of a national and international nature. These issues have apparently been ignored by members of the Cabinet who enthusiastically endorsed the President’s desire to have nineteen persons hanged. This is yet another example of populist, emotion-driven, decision making at the highest levels of government that pays scant regard to empirical evidence and to obligations imposed by law, both national and international. 

The constitutional obligation

The last judicial execution took place in 1976 when I was Permanent Secretary to the Ministry of Justice. 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 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.  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 executions ceased in 1976 when “Maru Sira” was found not to have been judicially executed.  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 commuted every sentence of death.  None, unfortunately, initiated legislative action to remove the death penalty from the statute book.

Legal issues

If the present Minister of Justice had conscientiously performed her constitutional duty, and if the President had acted according to the policy followed by his predecessors for 42 years, there would be no prisoners today under sentence of death. They would all 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, nineteen among them cannot now be identified for hanging (as reported in the newspapers), because that suggests that the reporting procedure in respect of them, as required by the Constitution, has not yet been performed. If that be the case, and since the President has already publicly declared his desire to have them hanged, any recommendation submitted by the Minister to give effect to the President’s desire 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 and, indeed, by the Cabinet decision too.

Another issue arises from the reason publicly declared by the President for his desire to have the prisoners hanged, namely, that they have been indulging in the drug trade from within the prison premises. That cannot be the basis for an execution order. 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 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.

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 appears to be 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 some 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.

If Sri Lanka now breaks its 42-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 may 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. 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 stand aghast as the Government of the only country in the world whose Constitution requires the State “to protect and foster the Buddha Sasana” addresses a human being confined to a prison cell and tells him or her: “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. We will therefore annihilate your life”.

The unseen reality

When President Sirisena sits at his desk and picks up his pen to sign a death warrant ordering the Commissioner of Prisons to hang a human being by his or her neck until he or she is dead, I would entreat him 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”.

If that has had no effect and the deed has been done, the members of the Cabinet who authorized the President to revoke the 42-year old moratorium, and the Roman Catholic Cardinal and Buddhist monks who cheered him on, should perhaps reflect on the following words of a former Chief Justice of the Constitutional Court of the Republic of South Africa:

“The deliberate annihilation of the life of a person systematically planned by the state as a mode of punishment is not like the act of killing in self-defence, an act justifiable in the defence of the clear right of the victim to the preservation of his life.  It is not performed in a state of sudden emergency, or under the extraordinary pressures which operate when insurrections are confronted or when the state defends itself during war. It is systematically planned long after – sometimes years after – the offender has committed the offence for which he is to be punished, and while he waits impotently in custody, for his date with the hangman.  In its obvious and awesome finality, it makes every other right, so vigorously and eloquently guaranteed by the Constitution, permanently impossible to enjoy. Its inherently irreversible consequence makes any reparation or correction impossible, if subsequent events establish, as they have sometimes done, the innocence of the executed individual or circumstances which demonstrate manifestly that he did not deserve the sentence of death.” 

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Latest comments

  • 1
    8

    Irrelevant!

    President is not bound by any of these. Most true Sri Lankans support their execution. End of story.

    • 3
      0

      True Lankan

      I assume you & the ‘most true Sri Lankans’ as you describe, are not Buddhists, or if claim to be, it is only by name. SL is the land of corruption & hypocrisy & you are indeed a true Lankan if you support the the latest brainwave of an uneducated President who is desperately trying to cling to power with cheap populism, even at the cost of human lives.

      • 2
        0

        Strange thing in the list of persons to be executed is that it contains four Pakistanis and seven Tamils. Is he government saying that it is Tamils mostly who are in this business of drug peddling and not Sinhalese and Muslims. It is an open secret that Navy personnel are smuggling drugs and army personnel are peddling them. It is also well known that most of the people involved in drug business are Sinhalese and Muslims with political patronage. Then why single out Tamils for execution.

    • 3
      0

      So the President indirectly accepts that SL prisons is a place where a criminal can continue his criminal activities and the govt and authorities have no control in it. Only way to tackle this is by executing those operating drug business from within the prison premises. This also tells other criminals (non-drug) like contract killers for instance will continue operating…

  • 7
    0

    Stingray, sword, and now the death sentence. If Maithri is really concerned about the drug menace, why did he give a Deputy Minister post to Nimal Lanza. If he means what he says, he has so many ways at his disposal to curb drugs. He doesn’t have to resort to killing. This is just his attempt to humour the uncompassionate monks, and to counter the patholaya image haunting him.

    • 6
      0

      Only way for Sirisena to be macho…..drawn on the sadistic cloak.

  • 2
    0

    Capital punishment is not suitable to Sri Lanka at all..

    Why it does not suit?
    Sri Lanka is not matured enough in democracy..
    It is not fair to do it while there are apples in politics; judiciary; and police..
    There is not independence of justice system in SL.
    Political enemies could be revenged..
    Political power could be used?
    Innocent could be killed ? First create fair society.
    Matured democracy.
    Good legal system ..
    Separate judiciary from politics
    Train judges in criminal law .
    Educate public on seriousness of this law
    Train police in criminal law..
    Go gradually for it .

    • 0
      0

      Lankan

      No country should apply capital punishment to its convicts for following reasons, morally wrong, mistakes cannot be rectified, it is not a deterrent.

  • 1
    0

    It appears that the Srilankans are on the ‘verge of execution’ in instalments, due to various problems faced by them off and on.

  • 3
    0

    Does the President want to called Medieval Sirisena? Is there a Macho image creation taking place? There is a lot of skepticism as to why this has been brought out now. Going after Sprats is easy as there are so many in the country. Only a cardboard Sando will revel in catching Sprats. Is he scared of the Drug Lords who are responsible for importing the drugs to the country? Or is there some other reason why there is no mention of them in all his pronouncements? They are the scum of the earth who should be sentenced to life and all their assets confiscated and sold to fund a rehabilitation program for the addicts. This issue is now headline news and the scams of all sides including the gigantic Bond scam is now at the bottom of the pile of public interest. Think about this friends.

  • 0
    0

    Though I don’t know lot at the drug dealers’ level, at least one Tamil is an assistant of a famous dealer, picked up to hang. All Tamils’ confessions are obtained at 4th floor by CIDs, under its Bar – B-Queing procedure of them. The above article quoted a professor describing the last minute of the hanged. The CIDs’ Bar-B-Queing is worse than hanging. The selected Tamils hung upside down, applying Chili power to sensitive areas and then set the fire underneath while beating until the victims confess. Many never came out alive or became invalids, when they come out. At least 150,000 Tamils are missing at the last stages of the war. Some estimates go as high as 500,000 Tamils missing in 30 year war.

    The famous recent case is, an eminent Banker, Mahendran was manipulated by President and the Prime Minister of the country to steal money. His pictures paraded in Media, he unemployed, hanging around in degenerated areas of Singapore. It is classic example how for 70 years the powerful and weak Tamils lives are being used by Sinhala Governments, for its criminal purposes. Lately, one within the new gossips circuited are, Old King, who while running away from his investigation in Parliament, attempted to track him in Singapore. He had offered to bring Udayanga, an agent wanted in MIG deal for helping another Old Royal, whom Old king seeks to deter stand for EP election, if Mahendran is brought back to Lankawe by the Prime Minister.

  • 0
    0

    Another UNPyer is suffering almost a same fate. Ex. Women and Children Minister Vijayakala is described as Hitler by the Sinhala Racist writers and 8the grade Parliamentarians for confessing that she was not able to have anything done to stop the continuous rape and murder induced and unleashed by the Armed Forces, forcefully stationed in the North by the UNP Yahapalanaya Government, at her party headquarters (UNP) in Colombo. The Main complain in the recent days were Rapist Army Forcefully employed Ex. Rebels in drug smuggling. These rebels are forced to smuggle while they are in the watch of Rapist Army and Police. While they are only 10% in the population, now 50% are Tamils out of the 18 picked up for hang, citing they smuggled while Rapist Police & Guard watching them in prison too.

    Fixing to 19 and picking them from Drug Smuggling which is controlled by army using Ex. Rebels and other Tamil criminals is a sure indicator that the government heads are worried about some witness living within the 19. It is interesting to note two of Old King’s earlier notation “if police power allowed for Provinces I will not be able to go to them”, at UN “their electric chair will be the punishment for me”. It was accused on government for Tamilini like the ones’ planned killing, who endured tortures inside the prison during rehabilitation. Apparently this cause suspicions to arise that this process is nothing but removing Tamils witness against government leaders.

    Tamils needs justice from UNHRC by punishing the war criminals and finding solution to freeing them forever.

  • 1
    3

    Existence of a capital punishment is a deterrent. If there is no intent of using it, it loses its deterrent value as it has been in the recent years. More than one thousand convicts are on the death row technically, but they may be having a nice time assured themselves that nothing will happen to them and they enjoy staying as guests at the tax payers expense.
    The paragraphs in italics above should be read not only by the President, but also by all the citizens, and more so by those criminals or people of any ethnic background that are currently or intent on plotting to commit a hienous crime, murder, rape, burglary with intent, sedition, drug importation and distribution. child molestation etc. Let them also feel the pain of severing the spinal cord at the skull, feel the convulsions and shit dribbling down their legs. Why only the President?
    The relevant paragraphs should be translated into all 3-languages spoken in the country and dispalyed in all public places in large bill boards, and be regularly transmitted on the TV, at prime times in particular. That is the detterence first step, and until or unless the intent of deterrence is implemented then no one would believe in the law. Criminals will just laugh it off, and people with bad temper or short fuses would not try to control it under circumstances.
    I may be a Buddhist, Christian or a Muslim or a Hindu, it does not mean that I should put up with the violence and corrupt society that we live in, giving in to these people and their emotional blackmail. Treat the criminals in the same way legally, as they cause us harm, for once, and let them feel the reaction of instance justice by the state. If it is good enough for the US, India, China, Russia etc, then it is good enough for Sri Lanka too.

    • 3
      1

      OMG… Thisu too has joined Punnakku eaters club from recent on..

      What went with him wrong ?

      It is all the grudges against RW ? Would you cut your nose just not being able to bear your ears ? OMG, how would you supervise your PhD students man ?

      • 0
        2

        There we go Simple Simon (Silva) keep changing your alias you Punnaku & Straw eating buffaloe. Finished with Burampu and now taken on Babalath. hahahah.. You are a disgrace to our farmers and village folks; get yoursel a proper German name where you are hiding as a refugee. Obviosuly you have your brains between your legs, and that is why you think you could get away with your smoke screens. Grow up!

        • 1
          0

          Why should I be a refugee in Germany ? Then you too should be a refugee in UK right ? Prove that I am a refugee in Germany ? Why you attack me calling me different names ? I am also from Galle, but I dont fall to your levels. I know your circles very well and you as an academic should behave well right ?
          You not knowing who I am , attack me as Champa or others would do why ?

  • 0
    0

    Deaths of arrested persons while in custody of police occur frequently in Sri Lanka.
    https://www.colombotelegraph.com/index.php/six-police-officers-sentenced-to-death/
    The president should first take action to stop these ‘extra-judicial’ executions before trying to stop judicial executions.
    Judicial executions are banned internationally as stated by the author, and deserve serious consideration.
    Convicted/remand criminals in prison ‘carrying on illegal business’ can be possible only with collusion of prison staff. This should be inquired into, and dealt with.

  • 1
    0

    Interestingly, now “Buddhist Philosophy” is aligned with this issue of “Hanging Until Death”. The “Proclaimed Buddhists” say in one voice that all these “CONVICTS” who are waiting in “Death Row” must be pardoned and rehabilitated in keeping with “Metta”, “Karuna” & “Muditha”. Some even quote from Buddha’s Life and quote the incidence of “Angulimala” who killed 99 and on his way to kill one more to complete the 100. Another incident is that of “Nalagiri” an elephant that was fed with intoxicants and sent to kill the Boddha. Luckily in that era, there was a “REAL BUDDHA” to “Discipline” the “Criminal Minds” and bring them back to “Decent Living Beings”. In the present day too, we have MANY “Angulimalas” and “Nalagiries” (in human forms;) but all NURTURED and very well PROTECTED by “Kings” and “King’s Men” including those in “Yellow Robes” who publicly profess to be “Buddhas” (Fake) but in actual fact “Criminals” of the types of “Angulimala” & Nalagiri” Now, the question therefore is: Have we got a “REAL BUDDHA” to FIRST to make these “Kings & King’s Men” “Decent Humans” and SECOND to “Rehabilitate” the criminals by infusing into them the value of “Independence” and the NEED to reject these “Kings & King’s Men” at all times.

  • 0
    0

    There are 53 other countries that have death penulty. In the USA, Death LEthal injection and by electric chair is still active. Only in Europe Death penulty is not given. So, where is your international legal repercussions. How does that happen ?. Drug Offences are in a serious condition. IT is difficult to say whether the PResaident collect hay much out of that. IF he is not genuine it will not work. On the other hand, I heard, none of the major drug king pins who run the business are in the list that was submitted to the president. the givn name list of small drug peddlers.

  • 0
    0

    The ethics and legality of capital punishment is for the academics.
    The man-on-the-street wonders like in the words of a former Chief Justice of the Constitutional Court of the Republic of South Africa:
    “The deliberate annihilation of the life of a person systematically planned by the state as a mode of punishment is not like the act of killing in self-defence, an act justifiable in the defence of the clear right of the victim to the preservation of his life………..”.
    We are worried that corruption/nepotism/impunity may be used to bugger the purpose of the capital punishment.

  • 0
    0

    The author has done justice by saying that the real deterrence to crime is early detection, competent policing, efficient prosecution and expeditious trial. I would like to add that prevention helps in a big way than curative. I agree with the saner counsel the author offers, namely, to consider the International dimension. The PM takes credit to the resumption of GSP+ for SL. Then why did he support MY3 for this scatterbrained decision when surely SL is going to make its victory short lived. The preponderance of non-majority persons in the list and even a female can have a further negative impact in terms of politics. I am told that no female was hanged since British-Ceylon up to now. The real issue, as the writer says, what were the opinions of the trial judge at that time and the prosecutor on the execution of the sentence for committing the original crime as the death warrant relates to the execution of the original sentence? Any other consideration is beyond scope of carrying out the punishment for the original crime. If prisoners in death row can do drug trading what is the use of that prison system? I wonder why didn’t that occur to him and nor to the entire preponderance of administrators in the blessed secretariat? NO! The motive is different and I have spoken on that before. The author quoted Prof Chris Bernard “……………his bowels and bladder may simultaneously void themselves to soil the legs and drip on the floor”. Would that be the result for some upon announcing the results of presidential elections of 2020? MY3! Think before you leap!

  • 0
    0

    Why is Sirisena talking load that he is an idiot?

  • 0
    0

    To those who oppose death penalty
    ———————————————
    I have few questions ,would appreciate some answers .

    1) What if one of your own child has become an addict ? Will you still so no to death penalty ?

    There is a saying you need to walk in certain peoples shoes to know what they ate going through.
    2) M C Qs

    a)Life sentence at the cost of draining the economy and Tax payers money ,and the risk of them going on operations from the prison ,(We do have cases reported)

    b) let the yakos run and shoot the yakos and claim they tried to grab the weapon and run and was forced to shoot .

    c) Start a prison riot and kill the yako

    Ball is in your court .

    Nb:

    My preference is sell them as slaves to work as no pay labourers in Chinese Mines if death penalty is to be opted out . .you can even think of gifting them .

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