The two men who were sentenced to death in the Galle tsunami murder case being led to the prison

Hang the death penalty

By Denzil J. Gunaratne

We are all agreed that to judicially hang an innocent man would be a most horrid thing to do. And yet we know that ever so often it has happened in those countries in which the ultimate penalty is a part of judicial procedure. The recorded cases of these instances are too numerous to mention here. Any old prison hand in Sri Lanka will tell you the same. The case in England, of the murder at No. 10, Rillington Place, where the actual murderer gave evidence against the executed man, immediately comes to mind. The judicial procedure is not a perfect science, emotion, prevarication and perjury, inadequate representation and sheer wickedness are all too common. These factors cause judicial miscarriages more often than people may imagine.

The recent incident where two persons were sentenced to death for the murder of a woman struggling against the force of the tsunami intent on stealing her gold chain, no doubt deeply hurts the normal citizen. The first reaction would be that those responsible be hanged, drawn and quartered. This is not surprising. Here, where a woman was crying out for aid to free herself from the fury of the waves was set upon by persons whose avarice had overcome common humanity, not only did they steal her gold chain but pushed her back into the waters and left her to die. I go merely by what the newspapers have said about the incident.

But is this a rare phenomenon? The European wars, the stories about which are legion tell us that armies were followed by camp followers. Many of them wives and children of the soldiers themselves, but also many who joined them to loot from the dead and dying. At a time when medical facilities were not available to the wounded, the injured soldiers were mostly left to die on the field of battle. When the battle was over and night fell, the ghouls started on their work. They stripped the dying as well as the groaning and moaning wounded of their valuables, often killing them to facilitate the removal of personal items. Many of these vultures also happened to be women. This was a frequent occurrence in warfare all over the world and our country is no exception.

The British soldiers who had invaded Kandy were struck down with malaria, and were dying by the dozen. The Kandyan soldiery caught them in their sick beds, stole all their belongings, butchered every one of them and dumped their bodies in a well in the city. That was after disarming and beheading at Lewella, those who were able to walk. Moreover, after having promised them their lives.

Take for instance, the terrible tragedies that occurred with the recent bombings, while the injured lay in pain there were people who, on the pretext of helping them pilfered their belongings. In some cases perverts even fondled the injured women. I am personally aware of an incident in Weligama when a serious accident caused the death of nearly six people. I happen to know that at least two of the victims were buried without identification because someone had stolen all that they possessed. Rings, purses, letters, envelopes, chains, travel bags and everything which may have helped to identify them. So there are two homes in which a son or a father or brother took a trip towards Matara that day and never returned home. They lie buried there at public expense in a cemetery at Weligama. It is indeed a shabby world, where but to think is to be full of sorrow.

There was a recent item in the newspapers where it was said that several Magistrates had met the President and requested him to sign the death warrants of those who had been sentenced to death. I am an aggrieved party. The cry comes in the wake of the assassination of Judge Sarath Ambepitiya. Today the military stands sentinel over our courts, it is rather frightening. Men have been convicted for this crime and their appeals dismissed and the learned judges wish them to be executed. In that event, logically the 180 or so others who share the death row must also suffer the same fate. Is it the heinousness of the crime or the status of the dead that determines the punishment? The case of Rita Jones and the many other gruesome murders come to mind. Why did they want to kill Judge Ambepitiya? What was their grievance against him?

Many years ago, traveling at night on the lonely stretch of road between Bibile and Monaragala, I saw a small group of people, many of them women, standing round a motorcyclist fallen on the ground. Having stopped, I was implored to take the injured to hospital. They had no mode of conveyance themselves and were helpless to assist the cyclist. Most of the women were weeping and I assumed that the victim was a relative of theirs. A young man agreed to assist me to take the injured to the Monaragala hospital where we admitted him and I returned to drop off the young man to the spot where the accident had occurred. I was surprised to learn that the injured person was unknown to the small crowd standing there. They thanked me profusely for the assistance extended to the injured man and said I had gained great merit. As far as I was concerned it was the only reasonable thing for me to do. The response of those individuals warmed the cockles of my heart. They cried for a stranger as if he was one of their own, they thanked me as if I had helped each and every one of them. The milk of human kindness flowed through those veins that night.

On another occasion, I was again driving at night, this time from Mahiyangana to my destination, Bibile. Having driven all the way from Colombo, and not on the best of roads for six or more hours I was looking forward to a bath, a drink and a hearty meal, when my old Peugeot suddenly coughed and stopped. Those days there were not many houses along this road and the jungle was all around. I managed to roll the car to a spot where I saw a kerosene lamp burning and resigned myself to sleeping hungry and send a message at dawn for assistance. The old man who lived in the little wattle and daub hut came up to me and offered me dinner, it was late at night but he insisted. He also informed me that the last bus to Badulla would be going past soon and that I could send a message through the driver to my destination, and so get help. I dithered to accept his offer as I knew that he had already had his meal but accepted on his insistence, His words were "what is it to give you a meal Mahattaya, please eat whatever there is" and so he and his wife gave me a freshly cooked meal of which I partook with great relish.

The old man needed no lessons in generosity to strangers. Sure, all of us have received this kind of treatment at some time or the other and our faith in humanity is revived endlessly.
The argument for the retention of the death penalty is based on the following matters.

(1) That death is the only fitting punishment for particularly reprehensible offences.

(2) The death penalty acts as a deterrent.

(3) For the protection of society at large.

As for the first argument, how is one to decide on the heinousness of an act for which the death penalty is suited. Justice Harlan put it succinctly in McGautha V. California, 402 US 1831 (1971) when he said, "To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are at present beyond human ability."

The other argument regarding the enforcement of the death penalty is that it would be a deterrent to those who have intentionally taken the life of another. The fact that this is a fallacy has been proved ever and anon. One crying example would suffice. In the seventeenth century and earlier, the punishment for picking pockets was death. The hangings were done, mostly on Tyburn Hill near London and amongst a large gathering of the public. Incidentally, the word gala is derived from gallows, and a gala day was a day on which the crowds gathered to watch these hangings. While their colleagues were being hanged, the pickpockets themselves had a field day among the crowds. So much for deterrence.

Studies have shown that society at large is not as affected by the presence of the death penalty or its absence. It appears that in the majority of cases, murder is committed by a person known to the victim and that rational thought has almost no part to play in the act. It seems that society is no more protected by the retention of the death penalty than by its absence and that crime, specifically murder, is the result of other forces acting on a particular society. Possibly, the inability to obtain proper redress from due process of law, political chaos, racial prejudice, the possibility of non apprehension and such other factors. I always believed that a man would never ride a motorcycle without a helmet if he were certain to be apprehended and punished, it is more the certainty of being apprehended rather than the severity of the punishment that prevents the offence.

The time I visited the gallows at Welikada, there was a name, if my memory serves me well, written in chalk. It was Chandrasena or Chandradasa written on the wall just behind the trap door through which the condemned man fell. The gallows there could execute three men simultaneously. But no one could tell me what old unhappy far off things caused him to come to this dire pass. Whatever it was he must have been poor, possibly ill-defended, without influence and did not have powerful friends. There is a fallacious belief that death by hanging is instantaneous, that the condemned man immediately becomes unconscious when his neck is broken. On the contrary, many hangings are botched, and groans and moans have been heard even after the man has been cut down for the autopsy. It has been classified a cruel and degrading punishment according to UN reports.

Death by hanging or by any other means, is an ultimate, it cannot be undone. As a former judicial officer I have made many mistakes. Forget those who have gone free because I was not convinced of their guilt in law. I also believe, that despite my best efforts to avoid it, I may have pronounced guilty those who were in fact innocent. Fortunately there are forra that are specifically established to undo those mistakes. If the learned Magistrates who visited the President can say without a qualm that they have never made such a mistake in their judicial careers, I beg to humbly bow my head in shame and sorrow. Peccavi, I have sinned.

The learned Magistrates who met the President know that they do not have the power to pass the death sentence, undoubtedly by effluxion of time as they rise in the ranks, they will obtain that power as long as the punishment stands on our statute books. But when a judge actually knows that his decision might in fact eventually end up with the accused being hanged, the duty turns more burdensome. In those days no murder verdict was returned by a judge sitting alone; a jury always shared the burden. A common summation would warn a jury that they were not to consider the eventual result of their verdict and that their duty was to find the accused guilty or not guilty as charged which is an impossibility.

Even then, many judges summed up in a manner so as to not have a "guilty of murder" verdict foisted on them and attempted in their summing up to dilute the verdict to one of culpable homicide. The same thing happened in more enlightened times when juries brought in verdicts of not guilty for capital offences, in order to spare the man from being hanged. Seventeenth century England had many offences for which the punishment was death. Ironically, to kill another's horse received a less rigorous punishment than to have stolen it. Children as young as twelve and thirteen were hanged for petty offences. Today in Sri Lanka not only murder but possession of over a certain amount of heroin attracts the death penalty.

But I must be fair; the Magistrates are not alone in their thinking. Many eminent judges, lawyers, criminologists and even philosophers endorse the death penalty. Some of them have provisos such as imposing the death penalty only for murder. In some countries, such as Sri Lanka, the death penalty may be visited on drug traffickers. In some countries death is recommended on adulterers, and those committing rape and unnatural offences. In times of war many offences carry the penalty, such as desertion, treating with the enemy and espionage. In Hitler's Germany homosexuals were habitually put to death along with gypsies and Jews.

An aberration of the concept of euthanasia was the killing of mentally unsound persons and those who were terminally ill, they being classified as "useless eaters." The methods of putting people to death through the ages are diverse. There was garroting, hanging, the guillotine, beheading, burning at the stake, poisoning, stoning, by firing squad, lethal injection, the electric chair. In ancient times the condemned men were thrown to wild animals or forced to kill each other in gladiatorial combat for the entertainment of the public. In Sri Lanka men were crushed to death by elephants or foisted on a stake.

When and where will it ever end, when will we ever learn. What also comes to mind is the common occurrence today of extra judicial killings. A man in custody is taken to some spot, ostensibly for the purpose of "discovering" weapons or loot or to show the hiding place of an accomplice or any other reason which the ingenuity of the men in charge are capable of concocting. There he attempts to grab a T 56 from his custodian who shoots him dead in "self defence." And we clap our glass to our sightless eye and be damned if we see it. No trial, no jury, no evidence, no judge, the verdict "justifiable homicide."

I beg your pardon Sirs, but to me killing is all the same. Some readers may think, this writer has not been the victim of a serious crime, he therefore does not know the trauma and the agony of the relatives of the tragically departed. Believe me dear reader, I know, I know. I too have had my share of sorrows. My father in law was killed in 1989 at the height of the "Reign of Terror" by the then JVP. After shooting him, they stole his "protective" gold chains and talismans and the rings he was wearing before they doused the vehicle with petrol and set it on fire. His children were not left even a corpse. We brought the charred remains from the village and cremated it in Colombo fearing to perform the obsequies there. He was 84.

The family began to receive numerous telephone calls and anonymous letters detailing the names of suspects, rumours and second hand conversations regarding the assailants were rife. Some were of business rivals, some of young men from villages nearby and some distance away, disgruntled former employees were named and even some security personnel were suspected. But we did nothing, for there was nothing to be done. Inter arma silent leges. In the clash of arms the laws are silent.
As I pass Welikada gaol and see the prisoners being marched in, I tell myself, that, there but for the grace of fate go I. And yet there is still time to go there, for I have learnt never to praise the day until the twilight comes, and not even then. A Commissioner of Prisons once described himself as "the keeper of the innocents."

During the Second World War when someone asked Churchill (I think it was him), what he would expect a British soldier to do, if he captured Hitler alive, Churchill replied that he would leave the decision in the hands of the Tommy concerned, this was greeted with laughter. But today we don't have that option. Lease an uninhabited island from the Nicobars, the Andamans or the Maldives, or wherever, our own Guantanamo Bay, give them the basics and let them rot there, but don't kill them. How would our President Advice corporal Gunaratne if he captured Prabhakaran alive?
Are we not killing enough in this internecine war, daily the death toll mounts and the pyres are burning in the villages of Sri Lanka, do we need to add to the number?
“Any man's death diminishes me”,
Wrote John Donne,
“Because I am involved in mankind,
“Therefore, never send to ask for whom the bell tolls,
“It tolls for thee.”
* The writer is a former judge and President’s Counsel