29 January, 2022


The Debate On Hanging And Miscarriages Of Justice

By Shanie

“An eye for an eye, a tooth for a tooth”

A concept ill-used to avenge

Killing is murder, and that’s a raw truth

Why this need for revenge?

It sinks to the criminal level

A depth morality eschews

The death penalty, more attuned for the devil

No moral society should choose.”

-StanleyCooper (1926-)

Somebody in government wants to bring back capital punishment. But, to his credit, the Minister of Justice Rauf Hakeem seems to have his reservations. He is quoted as having stated that judicial executions must only be re-introduced after a national referendum. Capital punishment for crimes is almost as old as history, both here and elsewhere. The ancient maxim, an eye for an eye, etc, was liberally interpreted. A person could be subject to capital punishment not only for murder but for various other crimes as well. Usually, capital punishment was associated with torture and other degrading and what we would now call barbaric methods. These were authorised and sanctioned not only by the ancient Sinhala and Tamil kings but even by the first two of our colonial rulers. The British annexed the Maritime Provinces from the Dutch in 1796 and in 1802 issued a Proclamation abolishing ‘all inhumane punishments which were in force under the civil law as administered on thisIsland’ and death by hanging was the only sanctioned form of capital punishment.

Capital Punishment has remained in our statute books to this day. There were, at various times, attempts made to abolish the death penalty but they never succeeded, even though supported by some of the highest political, civil society and legal figures in the country. In 1958, the S W R D Bandaranaike’s Government managed to get a Bill passed by Parliament suspending capital punishment for an experimental period. But even earlier, since the new Government came into power in 1956, no executions had been carried out. But ironically, the assassination of Bandaranaike followed soon after. The government of Bandaranike’s widow got through a Bill in Parliament to repeal the Suspension of Capital Punishment Act and judicial executions resumed thereafter. However, towards the tail end of the term of the Sirimavo Bandaranaike government, a decision was made not to enforce the death penalty administratively. Since then, all condemned prisoners have been saved from the gallows. The last execution took place in June 1976.

Increase in violent crime

Now, after over thirty five years, there is a move to re-introduce capital punishment inSri Lanka. The country is aware that in recent years there has been an alarming increase in violent crime, including against women and children. Murder is resorted even to settle simple disputes. It is not only criminal elements who engage in violence and murder. The public are aware of ordinary citizens, who otherwise would remain law-abiding, resorting to violence because they feel confident that they can, directly or indirectly, get the law-enforcers to turn a blind eye. There are many who blame the 18th Amendment and the subsequent politicisation of the criminal justice system for the deterioration of law and order. Prior to the enactment of the 18th Amendment, there was an independently appointed National Police Commission with disciplinary powers and, under the chairmanship of Ranjit Abeysuriya PC, this worked well and political interference in police work was minimal.

For whatever reason, there is undoubtedly an increase in lawlessness in the country Sexual violence against women and children is becoming increasingly commonplace. It is this that has led to the demand for the re-introduction of capital punishment. But few have stopped to analyse the problem of law and order and whether judicial executions will lead to a reduction in crime.

Kishali Pinto Jayawardene, who writes a legal column in one of our Sunday newspapers has last week analysed the issue of increasing criminality in our society and cogently argued that the death penalty is no solution to the problem. The Civil Rights Movement of Sri Lanka has also been a consistent opponent of the death penalty. In 2009 there was a proposal to resume judicial executions. Then there had been killings of high profile persons like Judge Sarath Ambepitiya and Lasantha Wickramatunge. The CRM then stated that they were by no means underestimating the serious law and order problems. But remedies had to be sought elsewhere. The imposition of an irreversible punishment was no answer to the problem of law and order; it would only serve to divert attention from truly effective measures, and make the national scene more brutal than it already was.

Is the death penalty a deterrent?

The common argument of those who favour for the return of the hangman is that the rise in violence homicides is because there have been no hangings since 1976. But there is no evidence to support this view. The sharp increase in crime has been in recent years, although judicial executions have remained suspended for over thirty five years.

Studies all over the world have shown that the death penalty does not act as a deterrent to murder. In the debates about the death penalty, it has been pointed out that most murders were committed on impulse and a person who commits a crime on impulse does not think of the consequences. Even in the case of pre-meditated murders, the death penalty has not been a deterrent. Killings, as in most other crimes, were planned on the basis that those who committed them would not be detected and/or escape justice. The judgement of the Constitutional Court of South Africa in 1995, quoted by the Civil Rights Movement, is equally applicable toSri Lanka: ‘The greatest deterrence to crime is the likelihood that offenders will be apprehended, convicted and punished. It is that which is lacking in our criminal justice system.”

In 1958, a Commission was appointed by the S W R D Bandaranaike government to go into the issue of capital punishment. The Commission was headed by Professor Norval Morris and included Professor T Nadaraja and Sir Edwin Wijeyratne. The Commission stated that in Ceylon, as elsewhere, the majority of murders were of an impulsive nature. In such a case, there was no ‘intellectual consideration at all prior to the killing, let alone a reflection on possible and remote penalties’. In the case of pre-meditated murders, the Commission stated that there was no evidence to show that that a person who would be deterred by capital punishment would not be equally deterred by the prospect of prolonged imprisonment. ‘It was precisely the type of person who committed a pre-meditated murder who hoped to avoid detection and in that frame of mind the possibility of capital punishment did not act as deterrent. Sir Edwin added a rider that capital punishment be retained for certain types of murders, but the majority rejected that view.

The recent murder of a businessman in Gampaha was allegedly by a person who wanted to take revenge on the businessman accused of having raped his sister. Some may empathise with the man for the sense of outrage he felt for then humiliation heaped on his sister. But murder is immoral even when it is done to avenge another crime. We have come a long way from the old ‘eye for an eye and tooth for a tooth’ era. We now consider such a principle as barbaric, inhuman and an affront to human dignity. This kind of revenge is for the underworld mafia, for those who have no respect for the law, or those, like the Gampaha murderer, who have no confidence in our criminal justice system. But the state must refrain from sanctioning such judicial executions which are immoral, degrading and barbaric. In the same judgement of theSouth African Courtquoted earlier, the Judges stated: “The state does not have to engage in teh cold and calculated killing of murderers in order to express its moral outrage at their conduct.” It is for this reason thatSouth Africaand many countries have abolished the death penalty.

Miscarriages of Justice

The carrying out of the death penalty is an irreversible act. When humans are fallible, mistakes, unintended or otherwise, in the administration of justice can happen. Dr Colvin R de Silva once said that the fact of the death penalty being irreversible was by itself a sufficient reason for its abolition. There have been several instances, both in our country and elsewhere, of clear miscarriages of justice. Innocent people have been executed or may have been had capital punishment existed. In the debate on capital punishment in 1958, Senator E W Kannangara, a former member of the Ceylon Civil Service, said that he had personally known of two cases where innocent men were hanged. The men were convicted on the evidence led and went to the gallows. But , he said, ‘everyone in the village, everyone who had anything to do with the case, knew that it was perjured evidence but no one could do anything in the matter.” Mahanama Samaraweera, then Member of Parliament for Matara, stated that he knew of a case where two people in Matara who had nothing to do with a murder were sentenced to death on absolutely false evidence. Fortunately for them, capital punishment had then been suspended and they escaped the gallows.

In Saudi Arabia, a young Sri Lankan woman Rizana Nafeek sits on the death row convicted of murdering an infant left in her care, although we know that this innocent girl, a minor at the time of the incident, went toSaudi Arabiaas a housemaid not as a nurse. She was not trained to look after infants and had no experience or training in dealing with a baby who had choked while feeding.

Strengthening law enforcement

The CRM quite rightly states that the integrity and reliability of police investigation is absolutely crucial, for ir iis here that evidence emerges on which a man may be eventually executed. Can we say, asks the CRM, that our investigative, law enforcement and legal system is such that there is no real possibility of innocent people being convicted and scapegoats being hanged? It does not require the CRM to tell us that numerous events inSri Lanka, several in recent times, show that it would be unwise to act on the basis that the police will always act fairly, impartially and within the law. We also know that criminal elements have the support and even encouragement of politicians who influence police investigations. In these circumstances, it is the poor and the disadvantaged and those without political influence who, as the CRM states, will be the most likely victims of miscarriages of justice.

The resumption of judicial executions and bringing back the hangman must be opposed. As Charles Irving, a British Parliamentarian, once said: “The deliberate taking of another person’s life in cold blood is an uncivilised act under any circumstances. To carry it out accompanied by the solemn ceremony of the State apparatus is totally obscene.” We need to acknowledge that if we are to tackle the problem of increasing violence and murder in our country, we need to turn our attention to reforming and strengthening our investigative, law enforcement and legal systems, instead of unthinkingly resuming the practice of judicial hangings. It is time for the media, our religious and civil society leaders and organisations to take up this issue.

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Latest comments

  • 0

    Probably it would be better to stop white van abductions and letal aggression by thughs,backed by political heavyweight.

  • 0

    Miscarriage of Justice can occur only when citizens are prosecuted for crimes, and wrong/incorrect sentences are passed by courts.
    In sri lanka,many criminals are not only not prosecuted, but are also ‘protected’ – eg.Julampitya Amare against whom there were more than 100 arrest warrants, but was never apprehended.
    In many instances,NO indictment/prosecution occurs – especially for murders in custody – eg.the recent death by beating of a prisoner in Vavuniya prison.
    This amounts to “officially sanctioned” miscarriage of justice.
    A ‘death sentence’ is an opinion of severity of a criminal act by a citizen, and is now not carried out – and results in life imprisonment.

    Enforcement of the Rule of Law is more important than debating about the Death Penalty.

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