News
Kids on death row
Last week, a 17-year-old youth from Ilakwatta, Kalutara, was arrested for the murder of his neighbour over a dispute regarding the burning of garbage. It is alleged that he had thrown a stone at the 63-year-old man and the man had died of the resulting injury.
On hearing of the arrest, the youth’s father had a heart attack and died. The youth has been released under strict bail conditions and the case is in the Maligakanda courts.
Court cases in Sri Lanka can be painstakingly slow. It may be years before the case is heard and closed.
According to the Prisons Department, the number of unconvicted prisoners at the end of last year stood at 24,086. There were 902 unconvicted prisoners held in cells for periods ranging from six months to a year and around 96 people whose cases had dragged on for more than five years.
Question have been raised over what sentence this youth, who is only 17 years, would face when the case is concluded. Certainly, the case would be heard for years before a conviction is passed, and he will be 18 years old next year.
According to section 53 of the Penal Code no-one under 18 years of age who has committed an offence, including murder, can be sentenced to death. It states that the age of the person committing the offence is of primary relevance in deciding whether the person had a murderous intention, and consideration is given to the person’s capacity to perform the murderous act at that age.
In a classic case uncovered by the Lawyers for Human Rights and Development (LHRD) during a legal aid clinic in the Bogambara Prison, senior lawyer Kalyananda Thiranagama came across D.M.D. Ransinghe Bandara, 38, prisoner no. G5609, who was sentenced to death for an offence committed when he was a minor.
The incident had happened in January 1994 when Bandara was a child of 16; his 14-year-old younger brother was also sentenced to death.
Bandara has spent 12 years in custody after conviction and nine years in death row awaiting execution.
His father, elder brother and younger brother were indicted in the Badulla High Court in H.C. Badulla Case No. 126/1995 for using kattys and mammoties to attack and kill a person on January 2, 1994.
While the case was pending Bandara’s older brother, the second accused, died. The trial proceeded with the remaining three accused (the father and the two sons) and was concluded on October 14, 2003. The mother collapsed in the courthouse and died while the death sentence was passed on the three males.
An appeal lodged in the Court of Appeal (case no. 107/2003) against the conviction has been dismissed. The court, while acknowledging that Bandara and his brother had been children under 18 years of age (16 and 14 years) at the time of commission of the offence said the law did not mention that their age at the time of offence should be taken into account when passing sentence.
In another case, 1238/1997, also a murder case, three children and two adults were arrested in 2007 for an offence committed in 1992. The children have been in custody for the past nine years and the case, being heard in the Kegalle High Court, has not been concluded.
The Lawyers for Human Rights and Development group has filed fundamental rights cases in the Supreme Court (SC/(FR)226/15 and SC(FR)227/15) on behalf of the two parties, arguing that their fundamental rights under S. 53 of the Penal Code have been violated and that the Court of Appeal has no jurisdiction or power to impose a death penalty on a child under 18 years at the time of the commission of a murder.
The lawyers claim that if the Badulla case had been concluded early Bandara and his brother would have benefited. Article 37 of the International Conventions of Child Rights ratified by Sri Lanka in 1991 also states that in a murder case involving a child Penal Code S.53 should come into effect.
S.53 clearly states that the age of the person committing the offence is relevant when deciding whether he had the murderous intention.
Mr. Thirangama said there were many similar cases in the prisons of Bogambara, Welikada and Mahara. Successive pleas made to relevant authorities including the Legal Commission, the Ministry of Resettlement and Prison Reforms, the National Child Protection Authority (NCPA) and to the Attorney-General had gone unheeded.
The LHRD last month wrote to President Maithripala Sirisena seeking clemency for the accused but is yet to receive a response. S. 53 also states that “in lieu of the punishment the court shall sentence such person to be detained during the President’s pleasure”.
Ministry of Resettlement and Prisons Reforms Additional Secretary Kumar Ekaratne said the law was wrong and the Attorney-General’s office negligent in its duty. In any indictable offence it is the duty of the Attorney-General’s Department to advise the relevant magistrates court, he said.
He said the procedure was for the Magistrate Court to send copies of non-summary cases in triplicate to the Attorney-General’s office for advice. The files are scrutinised and returned with advice on whether or not to make an indictment.
Ministry of Resettlement and Prison Reforms Additional Secretary (Legal) Pumanthi Peiris confirmed the ministry had received a request from the LHRD about the two cases. She said that the law was unclear and did not state the age the offence was committed. “Only the President can decide,” she said.
A children’s rights activist said the state had to provide a counsel to accused who do not have lawyers to represent them and the lawyer was duty-bound to inform his client (the accused) of the mitigatory provision available for him and the right to use it at the time of delivering the verdict. “The accused should have spoken out,” she said.
She emphasised the need to amend the law, saying, “The law is ambiguous and needs to be changed”.
Former NCPA chairman, S. Ranmugge said that when indicting a child the judge should give due consideration to maturity and age. He said that under the Young Persons Ordinance the judge should consider the circumstances. “The child cannot be treated as an adult. It is violation of a child’s rights,” he said.