Sunday Times 2
Death penalty is not the answer
We heard the shocking news this week that President Maithripala Sirisena had already signed papers for execution of four convicts, who were sentenced to death over drug offences. “I have already signed the papers and they will be carried out soon,” the President told media heads at a meeting.
Posters decrying the President's decision to implement the death penalty
Sri Lanka has not implemented the death penalty since 1976. Presidents J R Jayewardene, Ranasinghe Premadasa, D B Wijetunga, Chandrika Kumaratunga and Mahinda Rajapaksa did not implement the death penalty. President Sirisena’s name will be recorded in our history as the first President to execute its citizens after 43 years.
Last year, most of the known executions took place in China, Iran, Saudi Arabia, Vietnam and Iraq – in that order. China remains the world’s top executioner – but the true extent of the use of the death penalty in China is unknown as this data is classified as a State secret; the global figure of at least 690 recorded in 2018 excludes the thousands of executions believed to have been carried out in China. Excluding China, 78% of all reported executions took place in just four countries – Iran, Saudi Arabia, Vietnam and Iraq.
Of the 193 countries in the world, only 53 countries have the death penalty. The most recent countries to abolish capital punishment include Burkina Faso (2018), Guinea (2017), Benin (2016), and Madagascar (2015).
The death penalty should never be implemented. It is irreversible, and mistakes in judgements do happen. Execution is the ultimate, irrevocable punishment: the risk of executing an innocent person can never be eliminated. Since 1973, for example, more than 160 prisoners sent to death row in the USA have later been exonerated or released from death row on grounds of innocence.
Countries that execute persons commonly cite the death penalty as a way to deter people from committing crime. This claim has been repeatedly discredited, and there is no evidence that the death penalty is any more effective in reducing crime than life imprisonment.
In many cases recorded by Amnesty International, people were executed after being convicted in grossly unfair trials, on the basis of torture-tainted evidence and with inadequate legal representation. In some countries death sentences are imposed as the mandatory punishment for certain offences, meaning that judges are not able to consider the circumstances of the crime or of the defendant before sentencing.
The weight of the death penalty is disproportionally carried by those with less advantaged socio-economic backgrounds or belonging to a racial, ethnic or religious minority. This includes having limited access to legal representation, for example, or being at greater disadvantage in their experience of the criminal justice system.
History shows that in Sri Lanka, over a long period of time repugnance at the death penalty has been felt and expressed by individuals of varying political colours, and is a matter that should and can be taken out of party politics.
Attempts to abolish the death penalty in Sri Lanka commenced before independence.
As early as in 1928, the Legislative Council adopted a resolution moved by D S Senanayake that capital punishment should be abolished. Similar resolutions to this effect were thereafter at various times proposed by Susantha de Fonseka of Panadura, Dr A P de Zoysa of Colombo South, and Fred E de Silva of Kandy. All these attempts failed.
The most serious attempt to abolish the death penalty was made as a result of a decision of the very first Cabinet meeting of the government of Prime Minister S W R D Bandaranaike in 1956. The “Suspension of Capital Punishment Act” suspended the death penalty for a three-year period. However, after the assassination of Prime Minister Bandaranaike, the caretaker government headed by W Dahanayake repealed the Act. Executions resumed, but fell into disuse again after 1976 as Presidential pardons were given by successive Presidents from 1977.
All-Ceylon cricketer Mahadeva Sathasivam would have been hanged for the murder of his wife in 1951, if he could not have afforded to retain Dr Colvin R de Silva and get down Professor Sydney Smith, Professor of Forensic Medicine, University of Edinburgh, to support the crucial medical evidence of Professor G S W de Saram, the first Professor of Forensic Medicine of the University of Colombo.
Dr Daymon Kularatna of Galle, who was charged with the murder of his wife would have been hanged if he did not have resources to retain eminent lawyers Mr G G Ponnambalam and Dr Colvin R de Silva to defend him. In fact, the High Court had originally convicted Dr Kularatna.
I consider, based on scientific and circumstantial evidence, both were innocent. What is the plight of a poor, uneducated villager who is accused of murder who cannot afford competent defence lawyers?
Those who support the death penalty say that there are adequate safeguards listed by the Government, such as the recommendation of the trial judge, the Attorney General, and the Minister of Justice, affirming the death penalty, based on the evidence presented during the trial.
Should the State assume the role of executioner? Judicial executions are not an act of defence against an immediate threat to life. It is the premeditated killing of an identified prisoner for the purpose of punishment, a punishment, which could take another form.
On June 16, 1995, holding that the death penalty was unconstitutional, all 11 members of the Constitutional Court in South Africa stated that, “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.” Isn’t this equally true of Sri Lanka as well?
The Court also stated that punishment should be commensurate with the offence, but it does not have to be equivalent or identical. “The State does not have to engage in the cold and calculated killing of murderers to express its moral outrage at their conduct,” the Court said.
All should always remember what Dr Colvin R de Silva said during the Parliamentary debate to abolish the death penalty in 1956: “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 may never be brought to life again.”
Amnesty International opposes the death penalty in all cases without exception – regardless of who is accused, the nature or circumstances of the crime, guilt or innocence or method of execution. The death penalty is the ultimate cruel, inhuman and degrading punishment. A Buddhist country like Sri Lanka should never implement the death penalty.