24 August, 2019

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On Resuming The Death Penalty

By Jayampathy Wickramaratne

Dr. Jayampathy Wickramaratne PC

President Sirisena’s decision to resume the death penalty has met with wide disapproval. The main parties in the Government and the Opposition – United National Front, Sri Lanka Podujana Peramuna, Tamil Nationalist Alliance and Janatha Vimukthi Peramuna are all opposed to it. Citizens’ organizations have condemned it. The United Nations, the European Union, the United Nations Office of Drugs and Crime (UNODC) as well as many countries have called for a reversal of the President’s decision. It has been pointed out that the application of the death penalty may also impede international cooperation to fight drug trafficking and terrorism. Many countries have laws that do not allow the exchange of information and extradition with countries which may impose capital punishment. The latest to join the chorus of opposition is the Sri Lanka Medical Association which has brought to the notice of all medical personnel that any involvement in the implementation of the death penalty would be against medical ethics.

Against Government policy, arbitrary and unconstitutional

Since 2007, Sri Lanka has repeatedly voted at the United Nations in favour of resolutions calling for a moratorium on executions as a step towards the ultimate abolition of the death penalty. The 2007 resolution, which has been affirmed many times since then, declared that “the use of the death penalty undermines human dignity, and convinced that a moratorium on the use of the death penalty contributes to the enhancement and progressive development of human rights, that there is no conclusive evidence of the deterrent value of the death penalty and that any miscarriage or failure of justice in the implementation of the death penalty is irreversible and irreparable.” As recently as in December 2018, Sri Lanka again voted in favour of the moratorium.

As a matter of law, I argue that in view of the clear policy of the Government as evident from its continued commitment at the United Nations and the non-implementation of the death penalty from 1976 onwards, the President’s act of implementing the death penalty violates Government policy Also, under Article 42 (1) of the Constitution, it is the Cabinet of Ministers that is charged with the direction and control of the Government of the Republic. I therefore argue that the President cannot go against a Government policy. Further, major parties in Parliament are opposed to the resumption of the death penalty. The President is duty-bound to seek the views of Parliament. In the circumstances, the President’s decision to resume the death penalty is irrational, unreasonable, arbitrary and violative of Article 12 (1) of the Constitution.

Irreversible, miscarriage of justice possible

Dr. Colvin R. De Silva stated in Parliament in 1956: “Of all things that the State may take away from man there is one thing which if you take away you cannot only not return, but you can never compensate him for, that is his life.”

History is replete with examples of grave miscarriages of justice resulting from the death penalty. To give just two examples, Timothy Evans was executed on 5 March 1950 in England for murdering a woman. Three years later, another man, John Christie, admitted responsibility for killing six women, including the woman that Evans purportedly killed! In February 1994, authorities in Russia executed serial killer 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.’

Not a deterrent

Results of a 2008 poll of 500 police chiefs in the United States, conducted by R.T. Strategies of Washington, D.C. showed that Police chiefs ranked the death penalty last when asked to name one area as “most important for reducing violent crime.” Their higher priorities included increasing the number of police officers, reducing drug abuse, and creating a better economy.

As is well-known, the capital crime rate in States in USA that have the death penalty is not less than in those States which have done away with the death penalty.

Michael L. Radelet, Professor of Sociology at the University of Colorado-Boulder, in his 2009 article “Do Executions Lower Homicide Rates?: The Views of Leading Criminologists” published in 2009 in the Journal of Criminal Law and Criminology wrote:

Our survey indicates that the vast majority of the world’s top criminologists believe that the empirical research has revealed the deterrence hypothesis for a myth… 88.2% of polled criminologists do not believe that the death penalty is a deterrent… 9.2% answered that the statement ‘[t]he death penalty significantly reduces the number of homicides’ was accurate… Overall, it is clear that however measured, fewer than 10% of the polled experts believe the deterrence effect of the death penalty is stronger than that of long-term imprisonment… Recent econometric studies, which posit that the death penalty has a marginal deterrent effect beyond that of long-term imprisonment, are so limited or flawed that they have failed to undermine consensus.

In short, the consensus among criminologists is that the death penalty does not add any significant deterrent effect above that of long-term imprisonment.” (Emphasis added).

No previous President has sanctioned death penalty

Although the death penalty is in the law books, it has remained only on paper and no President under the present Constitution has implemented it.

In 2005, when the accused in High Court Judge Sarath Ambepitiya murder case were convicted, there were fervent calls for the resumption of the death penalty. Fearing that President Chandrika Kumaratunga would relent, several persons requested me to discuss the matter with her. Despite the fact that Ambepitiya was my batch mate at Law College, I met President Kumaratunga, armed with facts and figures from across the world. Before I could finish my first sentence, she cut me short and said: “Whatever people may say, it is I who have to sign a death warrant. I will never sign”. That was the shortest conversation I have had with her.  I was very impressed because this came from a person whose father and husband had both been assassinated and who herself had miraculously escaped an assassination attempt, losing an eye.  

When the appeals of the accused in the Ambepitiya murder case were dismissed in 2006, again there were calls for executing at least the main accused. However, President Mahinda Rajapakse, also a batch mate of Sarath Ambepitiya, declined. I was happy to see him reiterate his opposition to the death penalty last week.

If President Sirisena does go ahead with the executions, he, as a Buddhist, will never be able to sleep peacefully; the ghosts of the four convicts will haunt him forever. President Sirisena has on more than one occasion gone back on promises and commitments, the latest being his outburst against the Nineteenth Amendment which he himself spearheaded, now calling it a curse. I will not be surprised if he goes ahead with the executions and claim a few years later that he had made a mistake. 

It is apt to end this piece with a quotation from the leading judgment of the South African Constitutional Court in the landmark case of Makwanyane where the Court unanimously held that the death penalty violated the right to life: “The greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished. It is that which is presently lacking in our criminal justice system….”  [1995] (3) SA 391, [122] (CC). President Sirisena needs to wake up and realize that it is the same that is lacking in the Sri Lankan legal system as well.

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Latest comments

  • 8
    0

    Does MS repeat the 5 Precepts, when He gets His Pirith Nool tied?
    “Panathiptha Veramani Sikkha Padham Samadiyami”
    If Drug dealers continue to Operate from inside the Prison, it is the Fault of the Administrative Process, for which the President is ultimately responsible!
    He has to fix that Problem, by starting a Clean up of the Prisons, not by Killing Offenders!

  • 4
    5

    Jayampathi wicramarathne: You and your group of Human rights worshippers, How many thousands are killed per year, women, children and Infants, Invalids, olds, wedding parties, etc., How many women have become prostitutes because their husbands are dead from the war, How many children have become terrorists. Why you are not crying out about it.
    How many Drug lords are going to die now ? Can you compare the number with those died in wars. How about if you could stop Zaharan’s attack. 300 saved and 500 won’t be maimed. Did you keep silent. Did some one say, well before the attack, watch out.
    Why is this hypocrisy
    You talk about extradition treaties. Who are they going to Send Adele Balasingham. Many LTTE rump money collectors, GTf, TGTE, GTF people.
    How about bringing back AL BAGDADI ?. He said he gave the order.

    • 0
      0

      JD,
      Yes, it is certainly true that people kill people. That is b’cos instinctive feelings like anger or the urge to get revenge that are hardwired to our brains compel not just humans but all thinking animals to do so. However, civilized societies cannot function if members are allowed to act solely on instinctive urges. As a matter of fact, civilized social norms & ethics have been formulated since the antiquity for the purpose of maintaining social order exactly the purpose of keeping wild instincts in check. And yet, people always found ways to justify killings. Self defense is the most fundamental. Altruistic motives such as defending clans from enemies, patriotism, etc are other reasons. Later on, some like Karl Marx went even further to formulate grand socio-political theories justifying killing the enemies of the mass. Capital punishment may also based on a similar logic.
      However, just b’cos somebody or group has done or continue to do killings, can any human being conscious of pain & loss kill another human without falling below the standards of human dignity? In a human society where some have climbed up a notch even to stand for animal rights, engaging in HR shouldn’t be a shame at all! I must say that it is this kinds of noble thinking that makes human different from animals.

  • 4
    1

    This drug war and death penalty discourse is part of the “Politics of distraction”.

    The drugs and death penalty debate distracted the police from the Easter attacks and continues to be used to distract from the American Octopus that is strangling and spreading terrorism in Sri Lanka and Asia with its endless wars and war machine. The drug epidemic is part of the US Special Operations Forces (SOF) project to enter Sri Lanka, stage more attacks like Easter Sunday and install a US base.
    CIA and FBI need have been destroying evidence and ensuring the cover up of those who planned the Easter attacks and should get out of the country. The people of Lanka need answers on the investigation regarding 1) the financial affairs and 2) phone conversations of the Suicide Bombers which will show us the US Special Operations Forces (SOF) were behind the so called IS suicide bombings which were meant to enable US puppet bondscam Ranil to sign SOFA and the MCC compact to turn Lanka into a US military base.

  • 2
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    We also knew what are issues…What is your solution for this?
    no need to see fancy write up real and practicable one because the situation in #SriLanka where every village and every school has been severely affected and targeted by the drug traffickers, dealers and sellers…the future generation in this beautiful island is going to be vanished if this is NOT imposed….We must act NOW before it reaches to #everyCHILD, #everyFAMILY, #everyYOUNG. #America, #Japan, #Singapore and #China are popular countries which still imposed #death penalty. Further there no single research evidence that other countries who stopped, abolished or not enforce death penalty are free from criminals specially drug…further there is also no evidence those countries impose such punishment are free from crime HOWEVER the punishment is an effective tool for control and prevention combined with other mechanism….What is important in eradicating drug is the enforcement and timely justice which is a long outstanding question before us #CITIZEN…Further we people have almost lost the confident and credibility of these two.

  • 4
    1

    Lawyers like Wickramaratne can pontificate on the demerits of the death penalty. Yet the fact remains that many ‘enemies’ of powerful people are killed extra-judicially. Since no one dares talk about those injustices, a contentious issue such as an official death “penalty” is prime pickings for politicians masquerading as ethical and moral citizens. While the death penalty is abhorrent and barbaric, largely discontinued after medieval times, surely there needs to be perspective in articles such as these?

  • 2
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    Sirisena’s intellectual capacity is below par for a person holding the highest office in the country. Time & again he has gone back on his word & blames others for his own failings. This time, he is messing with lives which cannot be restored later if he admits he was mistaken. Now desperate for holding on to power, he is trying for cheap popularity by acting tough, emulating similar ‘tough’ yobs like Dutate & Trump. The death penalty may be practised even in some developed countries for certain grave crimes but in a country where the prudence of the judiciary & the integrity of the investigating police is highly questionable, the chances of innocent people being sent to the gallows is a stark reality, in which case, Sirisena is ultimately responsible, even though, he will backtrack as usual, blaming the legal system & the judiciary. I am sure he can live with it, having no conscience at all.

    I am surprised the Maha Sanga have been silent on this issue. Various Buddhist monks have been quick to get involved in political issues but when it comes to humanitarian issues, which is relative to their sole objective of providing spiritual guidance, they are apparently silent, maybe, for the ‘greater good’ of eradicating the drug menace. Buddhist monks relate various acts of the Buddha to illustrate Buddhist principals in their ‘bana’ sermons but, in this case, seem to ignore the story of Angulimala, a mass murderer pardoned by the Buddha. Is this hypocrisy of so called passionate Buddhists who pledge to uphold the 5 precepts at every Buddhist ceremony & daily prayers?

  • 3
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    Come on Raj, our mahanayaka already said that we can stone them to death.Even otherwise killing is nothing for us, in fact a hobby. How many we murder daily. How many we have killed. And you elect Gotta and how many we are going to kill. Not killing someone is new to us. So hanging some of the guys is not a sin compared to how many innocent lives we have taken. But only thing is Sri Lankan police work and judiciary are so flawed and corrupted they can easily implicate the innocent. How many Tamils were forced to give letters that they were terrorists. So whether we have hanging or not we will continue to kill but hanging is an expensive way of killing. Better, let them go and then just bum them off. It is cheap and effective. How many lives we have killed and now these guys are only talking of criminals. Best option is for the Gamarala also to hang himself with others.

  • 0
    0

    Now, Maithripala Srisena is harassed because of these 18 Drug peddlers. I here , the drug business is carried out by them, probably while they are in the Prison. I am wondering whether overseas owner of the Drug Cartels are trying to save these people
    On the other hand, I understand why other govts are bad mouthed for various things on the other hand, Batalanda killings and killing of LLRT people people may be by the west even though Ranil gave the clues their whereabouts.

  • 0
    0

    President Trump is going to implement the Death Penalty for both the Drug Smugglers and distributors as well as for Drug Pushers. I think, those who get donations from Drug Cartels are talking against the death penalty because that destroys the network of drug distributions and transport.

  • 1
    0

    Let’s say NO to death penalty .
    Let ‘s say NO to political prisoners; prisoners of thought
    Let’s say NO to violence in the name of political power; terrorism
    Let’s celebrate , enjoy and understand LIFE in all it’s forms
    Let’s act to prolong LIFE.

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