Is the JSA ignoring the beam in its own eye?

By Kishali Pinto Jayawardena

The recent call by the Judicial Services Association (JSA) to resume implementation of the death penalty, apparently in order "to restore public confidence in the judiciary" is in the best traditions of looking at the mote in another's eye while ignoring the beam in one's own. It would have been more appropriate if the JSA had recognized that public confidence in the judiciary has decreased because of the basic inability of the legal system to deliver on issues of justice rather than indulge in its enthusiastic call for legal lynching as a remedy.

Sri Lankans have lost confidence in the law due to a variety of reasons, all of which will not be enumerated here. Suffice to say that some of these reasons (put simplistically) concern corrupt court registry processes, laws delays in both civil and criminal cases and other manifold procedural problems that impede the swift and effective delivery of justice. These include weaknesses in the police investigations procedures as a whole, plagued by politicization, corruption and inefficiency and a weak criminal justice system characterised by the quick release of offenders due to prevalent practices of parole and remissions.

If one is however to examine as to why the people have lost "confidence in the judiciary", it must be acknowledged over and above all other factors, that this is due to negative perceptions regarding judges themselves. It was not so long ago that two judges, respectively the President and the Secretary of this very same Judicial Services Association (JSA) had alleged before court that they had been prevented from holding the Annual General Meeting of the JSA. This, they contended, was due to the arbitrary actions of Chief Justice Sarath N. Silva who wanted to prevent them from holding positions in the Association as they had opposed him on the basis that his behaviour was not conducive to the honour and dignity of the office. This unseemly dispute continued to remain unresolved.

It must be recalled at that time, that heads of some media institutions whose journalists had reported on the latter cases and who had published/broadcast interviews with the concerned judges, were sent letters by the Registrar of the Supreme Court, making inquiries about the latter and warning that contempt of court charges may be made against them. The media institutions themselves responded to the letters of the Registrar, affirming that mere reportage of the disputes could not constitute contempt of court.

The incident (among many others) illustrated the imprecise nature of contempt of court in Sri Lanka, now an increasing concern. The need for a defined legal framework in order that the Sri Lankan judiciary be subjected to due and rigorous scrutiny whilst preserving basic respect for the institution itself, still remains outstanding.

These recent disputes have resulted in the judicial system being challenged more seriously than at any other time in the past. Ordinary and familiar procedural problems besetting the administration of justice have been aggravated by these developments. That the judges association should have advocated the death penalty as a convenient remedy whilst wholly disregarding other factors that have led to loss of public respect for the judiciary, is shocking but yet not surprising, given the decadent thinking of our times.

From another perspective, after decades of conflict and thousands of disappearances and extra judicial killings, is it not a possibility that actual executions carrying with it the horror of human beings deliberately being put to death by the State would lead to a further brutalisation of society and even less respect for the rule of law? Is it seriously contemplated that resumption of executions would gloss over fundamental defects in our criminal justice system, thus magically providing a quick fix solution to a diseased system? These are questions on which public opinion ought to be sought in a systematic manner. Reliance ought not to be placed on intermittent letters to the editor appearing in some newspapers as evidencing a collective call for the implementation of the death penalty.

Basic questions meanwhile concern the quality of justice itself. The present law mandates that the death penalty could be imposed by "an order of a competent court made in accordance with procedure established by law". To what extent however is the order of such a competent court infallible? In the United Kingdom, the United States and Russia (among several other countries), mistaken convictions have been discovered only after an innocent human being had been put to death. Other countries have recently released condemned prisoners who had been mistakenly convicted. They include the Phillipines, Malaysia, China, Taiwan, Trinidad and Tobago, Malawi, Turkey and Japan. In the latter instance, two innocent prisoners were released after each spent thirty four years under sentence of death. Thus it is that the perils of a mistaken conviction are not one to a million.

The argument that re imposing the death penalty may deter people from resorting to violent crimes has no substantive basis as indeed, was found by a Commission on Capital Punishment established in Sri Lanka in the late 1950's. Indeed, the JSA should be referred to a seminal decision of the South African Constitutional Court (The State vs T. Makwanyane and M. Mchunu, Case No CCT/3/94, 6 June, 1995) where the Court declared the relevant sub-sections of section 277(1) of the Criminal Procedure Act, (and all corresponding provisions of other legislation) sanctioning capital punishment to be inconsistent with the Constitution. The South African State was further forbidden to execute any person already sentenced to death under those provisions and ordered to substitute such sentences with lawful punishments.

The populist call of the JSA for the implementation of the death penalty needs to be seriously critiqued. This is not what one would expect from a primary association of judicial officers in the country.