Sunday Times 2
Capital punishment – A humane perspective
The media highlights that the capital punishment may be reintroduced shortly. All Presidents of Sri Lanka have seemingly expressed hesitancy to reintroduce the capital punishment which was rescinded by late S.W.R.D. Bandaranaike.
This dillydallying indicate the apparent indecisiveness of Sri Lanka’s decision makers while the great difficulty experienced in recruiting a hangman is somewhat indicative of the public disdain towards execution by hanging.
Nevertheless, there have been instances where governments have used capital punishment deliberately to punish targeted individuals. The S.W.R.D. Bandaranaike assassination was a case in point. Mr. Bandaranaike’s Government passed the ‘Suspension of the Capital Punishment Act’ in 1958, ironically, shortly before the prime minister himself became the victim of a murderer. In the aftermath of the assassination, the succeeding government hastily reintroduced the capital punishment in December 1959 by an Act of Parliament. The obnoxious feature of this new Act was its retrospective effect which intended to target certain specific individuals despite Mr. Bandaranaike’s last request for clemency for his assassin. Consequent to this Act, all three major suspects of the case received death sentences.
However in a subsequent appeal, two of the suspects got their death sentences mitigated to life imprisonment due to a loophole in the new Act. Enraged with the appeal court’s decision, the Government brought an amendment to the new Act to include conspiracy convictions also to be punished with death by rectifying the legal flaw on which the two convicts received the mitigation.
However, this amendment was later withdrawn. I highlighted this instance to show that capital punishment can at times become an instrument to punish targeted individuals. If killing of an unarmed person is legally and ethically wrong, one cannot support a system that justifies capital punishment which appears as retaliation. Can anyone justify killing an unarmed helpless prisoner who may have been already rehabilitated by the time his trial reaches the determination or verdict stage after years or even decades? In such cases the person who is ultimately sent to gallows is a reformed, well-mannered and repenting individual and not a person with murderous intentions.
Here I wish to present a few reasons to demonstrate why capital punishment is an unfair instrument.
1. Every criminal could be rehabilitated rather than eliminated. No person is a born-criminal. Every person is born innocent. It is the society that makes him a criminal or a sage. His being born into a certain environment which led him to criminal behaviour is not of his choosing. If he were born in a disciplined society he would have grown up with ethical values.
2. In disciplined societies criminality is rare. Values are inculcated in early life. Sadly though, in our country Sri Lanka, school curriculum does not provide for this facility which is the responsibility of the State. Sri Lanka has successfully and rewardingly rehabilitated thousands of terrorists who had killed hundreds. Then why should we not consider rehabilitating criminals instead of eliminating them.
3. The opinion that capital punishment is a deterrent is not acceptable because everyone who commits a murder does not contemplate on the consequences of his action because his mind is at least temporarily masked against reason and restraint, a situation which most offenders themselves later realise and repent for. Strong criminal behaviour is often connected to personality traits such as excess hormonal activity or genetic disposition which are beyond the perpetrator’s control. No record is available to ascertain that capital punishment has reduced crime rate anywhere in the world.
4. Another perspective is that though we all admit that actions of mentally retarded individuals cannot be considered culpable, we do not use the same criteria on suspects who may be mentally imbalanced to the extent of their being unable to take a proper decision at a crucial moment. Furthermore no psychiatrist can come to a definite conclusion as to what degree of mental imbalance the suspect would have been in, at that particular instance when he committed the offence or even at the time of his subsequent medical examination since there is no fool-proof method to measure the exact degree of mental retardation of a person and draw a line where insanity takes over from sanity. Hence the psychiatrist’s subjective opinion can influence the decision between life and death for the suspect.
5. Another prime factor that would decide against the suspect in a trial is his legal representation. The representing attorney may be overworked, inadequately informed or lacking in trial experience. An eloquent lawyer can bear upon the final outcome. These factors to may exercise a considerable degree of influence on the nature of the judgment even to the extent of death penalty being pronounced on an innocent person as has so happened in many instance the world over. Furthermore, different judges may give different judgments. Even the judges on the same bench having heard the same case may decide differently. This again shows that their determinations can be subjective. When capital punishment is mandatory on certain crimes, judges have little or no opportunity to exercise their sentiments in such cases.
6. Punishment with death leads to a vicious circle extending further violence and lasting dissention among warring families closing all avenues for reconciliation and peace. Furthermore when capital punishment is meted out to a person it is not only that person who undergoes punishment, but all members of the family who may be totally innocent and suffer great traumatic repercussions. I have recently read of a request made by the mother of a murder victim pleading for leniency for her son’s murderer as she did not want another mother to undergo the same agony that she is going through due to the killing of her son.
7. Death sentence is meted out only to those who get apprehended. Others with influence and financial capacity or state patronage can often slip away while the less fortunate get sentenced. This is a universal fact true of all countries. At varying times the State to retrieves death sentence on selected convicts even at the last minute on grounds of clemency. Upon all homicides committed in countries where capital punishment is exercised only a handful of the perpetrators get apprehended and sentenced to death. But when it’s a matter that decides between life and death only for the apprehended and the helpless persons with no influential backing or capacity to defend themselves, it amounts to ruthless discrimination.
8. Some critics are of the opinion that capital punishment is necessary to bring justice and consolation to the bereaved family of the victim of the murder. This opinion is unfair because if the bereaved family seeks or be satiated by the elimination of the perpetrator it is not justice but sheer vendetta and revenge which should not be encouraged by the state. Such an exercise does not bring back the life of the murdered person or rectifies the loss brought upon his family.
These reasons would convince a judicious person with a rational mind that capital punishment is unjustifiable when looked at from a humane perspective and that rehabilitation is a biter alternative to elimination.
(The writer is chairman of Green Wheel Group)