Features
Death Penalty again in focus (Part I)
By Dr Jayampathy Wickramaratne,
President’s Counsel
The decision was challenged in the Supreme Court by several petitioners, who contended that it had been recognised, and is an accepted norm, that drug-related offences are not classified among the most serious types of offences. There was thus no rational basis for the President’s selective choice of whom to execute, especially considering that he has commuted the death sentences of persons convicted of far more serious types of crimes. It was also an act which would have far-reaching consequences on the country and its citizenry and is irreversible. It cannot, therefore, be carried out, based on the whims and fancies of one person, acting contrary to the position of the State, as a whole. Many death row inmates have been in post-conviction custody for a long period of time, and the belated implementation of the death penalty would be contrary to due process of law. The President’s decision to implement the death penalty was thus arbitrary and irrational and violative of Article 12(1) of the Constitution. It was further contended that even if the implementation of the death penalty was permissible, death by hanging is a cruel and inhumane method of execution (compared to more humane forms, such as lethal injection) and, as such, also amounts to cruel, inhumane and degrading treatment, within the meaning of Article 11 of the Constitution. Executing the death penalty on persons who have already served a long period of imprisonment amounted to a dual punishment: lengthy incarceration, under very severe conditions, followed by an execution.
On 05 July 2019, the Supreme Court issued an interim order staying the execution of the death penalty. The interim order was extended from time to time. On 23 February 2023, the Attorney-General informed the Court that President Wickremesinghe would not sign any warrant of execution. The Court terminated the proceedings, reserving the right of the petitioners to revive the cases in the event of an imminent threat of any execution being carried out in the future.
A few days later, on 01 March 2023, Opposition and SJB leader Sajith Premadasa told an election rally that those convicted of terrorism, including the Easter Sunday bombings, and trading in drugs, would be executed under an SJB government, even though that would be opposed by liberals. SJB stalwart Eran Wickramaratne was quick to respond that the SJB did not have an official position on the death penalty. On 22 October 2020, Premadasa had told Parliament that the death penalty should be carried out on those convicted of terrorism, and involvement in the drugs trade, as a business. When Minister Sabry asked him whether that was his personal opinionm or that of his party, Premadasa confirmed that it was the position of the party.
Eran Wickramaratne, an economist and liberal, is no doubt aware of the consequences of his Party, even speaking in favour of the death penalty, while in the Opposition, let alone executing convicts when in power. After President Sirisena began talking about resuming the death penalty, Heads of Missions (HoMs) of the European Union, in Sri Lanka, called for abolishing the death penalty, after meeting a group of government legislators. ‘The HoMs reiterated their call to Sri Lanka to maintain its moratorium, on the death penalty, with a view towards complete abolition. During the meeting, the HoMs restated the strong and unequivocal opposition of the EU, and its Member States, to capital punishment, in all circumstances, and in all cases,’ a statement from the EU Delegation in Sri Lanka said. ‘If Sri Lanka resumes capital punishment, Colombo will immediately lose the GSP Plus status’, an EU diplomatic source had told the AFP.
Premadasa’s position is not new. When MPs Hirunika Premachandra and Ranjan Ramanayake moved an adjournment motion, in the last Parliament, in October 2015, calling for the execution of those convicted of raping children, and killing them, Premadasa expressed similar views. The large majority of Members who spoke on the motion were opposed to the death penalty, both from a human rights perspective, as well as a criminal justice point of view.
The writer participated in the debate and cited the landmark case of Makwanyane where the South African Constitutional Court held that the death penalty was inconsistent with the Interim Constitution of South Africa. Justice Chaskalson famously stated that the greatest deterrent to crime is not the death penalty but ‘the likelihood that offenders will be apprehended, convicted and punished’, adding what is true for most countries: ‘It is that which is lacking in our criminal justice system.’
The Left in Sri Lanka has always been against the death penalty. Dr N.M. Perera, speaking in the State Council, on 20 November 1936, opposed the idea of ‘an eye for an eye, a tooth for a tooth.’ During the Parliamentary debate to abolish the death penalty, in 1956, Dr Colvin R. de Silva said, ‘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. You may put a man in prison and deprive his liberty. You cannot, of course, return him the days he was in prison, but you may, in some degree, compensate him, in other ways, for the wrong that is recognised to have been done when you locked him away. But, if you take his life, you may compensate his dependants, and his relatives, but never can you give him anything adequate, or inadequate, to replace that which was taken from him. Once you are dead you can never be brought back to life again.’
Being one of the finest criminal lawyers this country has produced, Dr de Silva surely knew the frailties of our criminal justice system. In Makwanyane, Justice Mahomed commented on the irreversibility of the death penalty if it is later found that an innocent person had been executed: ‘Its inherently irreversible consequence, makes any reparation, or correction, impossible, if subsequent events establish, as they have sometimes done, the innocence of the executed, or circumstances which demonstrate manifestly that he did not deserve the sentence of death.’
Innocent but sentenced/executed
Criminal justice history is replete with cases of innocents executed, including from countries claiming to have better criminal justice processes. In England, Timothy Evans was executed, in 1950, for murdering a woman. Three years later, serial killer John Christie admitted responsibility for killing six women, including the woman Evans purportedly killed! In Russia, in February 1994, serial killer Andrei Chikatilo was executed 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.’
Knee-jerk reactions to terrorism, at the expense of human rights, are common. The cases of the Guildford Four and the Maguire Seven, related to the conflict in Northern Ireland, may be mentioned. Four persons were sentenced to life imprisonment, in 1975, in the Guildford Four case, convicted of bombings carried out at the Guildford Pub, in 1974, by the Provisional Irish Republican Army. The Guildford Four’s claims that their confessions had been extracted by force were rejected by the trial court. The court expressed regret that the Four had not been charged with treason, which still carried the death penalty. Years later, evidence pointing to the innocence of the accused, but concealed from the trial court, surfaced. They were released in October 1989 after their convictions were quashed on the basis of the evidence discovered.
The Maguire Seven were charged with possessing nitroglycerine, allegedly passed to the IRA to make bombs, in December 1974. They were tried and convicted in 1976 despite the accused claiming their alleged confessions were obtained under severe duress. They were sentenced to imprisonment, and their appeals failed. Later, evidence that the London Metropolitan Police beat some of the accused into confessing to the crimes and withheld information that was favourable to them surfaced. This led to the convictions being quashed in 1991 in a special appeal.
H.G. Dharmadasa, a former Commissioner of Prisons, who witnessed seven judicial hangings, told the Daily FT, in July 2019, that there is no guarantee that an innocent would not be executed, however watertight the case may seem. ‘Judges and juries can make mistakes, and the manner in which crimes are sensationalised in the media often blur the line between fact and fiction and can influence judgments. You can hang 100 guilty men, but if you hang one innocent man, the system is a failure,’ Dharmadasa opined.
(To be concluded)