By Ramesh Fernando –

Ramesh Fernando

Additional Solicitor General, Mr. Rohantha Abeysuriya, PC, stated that instructions had not been received by the State pertaining to the present application, and also informed Court that there was a Writ Application pending in the Court of Appeal related to the same issue. He urged the Court to grant time for the State to obtain instructions. However, Mr. M.A. Sumanthiran, PC, representing one of the Petitioners, objecting to this, stated that, “the State cannot have the cake and eat it”, as it has taken a jurisdictional objection in the matter before the Court of Appeal arguing that only the Supreme Court is empowered to issue stay orders against the state. 

The Bench stated that it was inclined to hear the submissions for the limited purpose of deciding whether or not to grant the interim relief prayed for, while allowing time for the State to obtain instructions by re-fixing a date for the Leave to Proceed applications to be heard. 

The Court decided to only hear submissions from Mr. M.A. Sumanthiran, PC, on behalf of the all the Petitioners, as it was only deciding on whether the applications warrant the granting of interim relief today. 

Submissions of Mr. M.A. Sumanthiran, PC 

At the outset, the Counsel drew the Court’s attention to the fact that the last execution under the death penalty was carried out in 1976, at a time when the foregoing 1972 Constitution was still in effect. He pointed out, that under the 1972 Constitution, there was no provision similar to Article 11 of the present 1978 Constitution (no person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment). He also pointed out that the fundamental rights under Articles 10 and 11 are non- derogable / absolute.

He went on to cite the Supreme Court’s decision on SC FR 479/2009 decided on 23.10.2018, stating that in that case the Court had repeatedly reiterated the inviolability of Article 11, and went on to quote the portion of the aforesaid judgment where it states that Court accords a ‘preferred position’ to Article 11 over and above all other provisions in the Fundamental Rights Chapter of the Constitution. 

The Counsel maintained the position that capital punishment does not exist in the law of the land as it stands today, stressing on the fact that no death warrants have been signed by a Head of State since the enactment of the 1978 Constitution. 

Mr. Sumanthiran expressed the view that times have changed and society has become more civilised. According to him, society has progressed from a by-gone era when the death penalty was imposed for the cutting down of trees, and for the killing of deer. He asserted that Sri Lanka has maintained a moratorium on the death penalty, and countries ought to move towards complete abolition, and not go backwards. 

In his view, the President is further in violation of Article 12(1) of the Constitution (all persons are equal before the law and are entitled to the equal protection of the law) when he decided to select just four prisoners out of the many hundreds currently on death row (over 1400 prisoners).

He cited an Indian judgment where the judges had held that the death penalty is handed down only in the ‘rarest of rare’ cases. He asserted the point that judges in Sri Lanka have, for the last 43 years, only handed down the death penalty with the firm knowledge that such sentence would not actually be effected. His view was that judges of the High Court would be more conscious in deciding whether to impose the death penalty if they were aware of the possibility that the sentence would in fact be given effect. 

He further stated that the Court has, in the past, read in the Right to Life into Articles 11 and 13, as bereft of this basic right, the others would have no meaning. 

The Counsel stated that 43 years of non-implementation of the death penalty was not just mere non-implementation, but was the policy of the Government. Such Government policy, as he viewed it, is subject to the direction and control of the Cabinet of Ministers, of which the President is just one member. He also informed Court that the Government of Sri Lanka had given undertakings to the international community to continue the moratorium on the death penalty. 

Mr. Sumanthiran further urged the Court to draw its attention to the fact that the Code of Criminal Procedure enacted in 1979 only charged the Superintendent of Prisons with the safe custody of prisoner’s who had been given the death penalty, whereas the previous Code of Criminal Procedure has provided for the fiscal to carry out the executions. On this basis, the Counsel asserted that the law does not, in fact, make provision for executions to be effected. 

Mr. Nerrin Pulle, Deputy Solicitor General 

The Counsel requested Court to inquire as to whether notices have been served on the 3^rd and 4^th Respondents as required, and commenced his response by referring to prayer (b) of the Petition which urges Court to issue an Order requiring the 3^rd and 4^th Respondents to desist from executing the death warrants. 

The Counsel drew the Court’s attention to Article 13(4) of the Constitution, which, in his view, provides for executions to be effected in accordance with the procedure established in law. He further stated that the Administration of Justice Law (Section 237) refers to the death sentence, as does Chapter 24 of the Code of Criminal Procedure, which according to him provides the mechanism for carrying out a sentence of death.

Additionally, the Counsel’s position was that the role of the President was limited to deciding the date and place of executions, and thereby giving effect to a judicial decree. 

The Counsel stated that the Court, at present, was merely being called upon to ascertain whether or not capital punishment is recognised in the law of Sri Lanka. It was his submission that the law does, in fact, provide for it. He further referred the Court to Article 16 (2) of the Constitution (the subjection of any person on the order of a competent court to any form of punishment recognised by any existing written law shall not be a contravention of the provisions of this Chapter), which provision, in his view, made the imposition of the death penalty permissible. 

He emphasised his view that the Court lacks jurisdiction to hear the Petitioners, as the Petition was requiring the Court to embark on post-enactment judicial review, which is not provided for under the Constitution. He stated that the jurisprudence relating to Article 83 of the Constitution had clearly ousted the Court’s jurisdiction to carry out post-enactment judicial review. It was his argument that the Petitioners’ are seeking to vitiate a legal process that has been set in motion by a judicial decree. Therefore, he urged the Court to be mindful of the parameters of its jurisdiction.

Prasanna Jayawardene J, in questioning the Counsel for the State, viewed that there are two aspects to the argument of the Petitioners;

1. That the execution of the death penalty would be unconstitutional 

2. That the manner in which 4 out of approximately 1400 death row inmates was selected was arbitrary, and therefore unconstitutional. 

Jayawardene J, also indicated that prima facie the argument presented on behalf of the state, that the President does not exercise an executive function in this process, cannot hold. 

Mr.  Nerrin Pulle urged that the Petitioners’ had not satisfied the threshold requirement to enable the Court to grant interim relief. 

Court granted the interim relief prayed for in (i) and (ii) of the prayer in the Petition that was taken up by Court today. Therefore, the Court granted a Stay Order against effecting any executions until the next date of hearing (29.10.2019), on which date the Court will hear all the applications for leave to proceed.