|
Sri
Lanka: The return of the gallows
The
declaration of Sri Lankan President Chandrika Kumaratunga that executions
of death sentences shall be effective from 20 November 2004 for
rape, murder and narcotic crimes represents a serious setback for
Sri Lanka. The declaration was a direct response to the assassination
of Justice Sarath Ambepetiya of the Colombo High Court and his bodyguard,
Inspector Upali on 19 November 2004 by an alleged accused in a murder
case being heard by him. Justice Ambepitiya was known for his tough
verdicts – and had also just given a sentence to a woman drug trafficker
when he was killed. He is also known to have given record jail terms
to child molesters. In 2002, Justice Ambepitiya sentenced the leader
of the Liberation Tigers of the Tamil Eelam, Velupillai Prabhakaran,
to 200 years in jail in absentia over a 1996 bomb attack at the
Central Bank in Colombo, which killed 91 people.
After an emergency meeting
on 20 November 2004, President Kumaratunga took several important
decisions to reduce rising organised crimes in the country. A Special
Police Unit for the security of the judges and law courts has been
set up. The Crime Prevention Unit of the police has been directed
to reorganize and strengthen its forces with immediate effect to
contain organised crimes. President Kumaratunga further instructed
the Minister for Public Security, Law and Order to amend the criminal
laws, in addition to adopting regulations, systems and procedures,
to minimize delays in the trial of these crimes.
Although, death penalty
has not been enforced since 1976, the courts in Sri Lanka regularly
award death sentences for murder and narcotic crimes. In July 2003,
the Colombo High Court sentenced two police officers and three local
residents of Bindunuwewa in the central district of Bandarawela
in Sri Lanka for their involvement in the massacre of 27 young Tamil
men held in Bindunuwewa detention centre in October 2000.
The mainstream political parties and the
state-controlled and private media and the Buddhist clergies have
been lobbying for tough laws to curb the rise of crime, including
reactivating the death penalty. In 1995, with the support of then
opposition United National Party, the parliament unanimously passed
a resolution to reactivate capital punishment following which the
President appointed a task force headed by the Attorney General
"to make recommendations". On 13 March 1999, President
Kumaratunga through a Presidential Proclamation reactivated capital
punishment as a deterrent against rising organised and serious crimes
in the country. However, in the face of strong opposition, death
sentences have been automatically commuted to life in prison. In
January 2001, the government however revoked a decision to automatically
commute capital punishment to a life jail term. Those handed a death
sentence since then have yet to exhaust their appeals through the
legal system.
Article 8 of
the Sri Lankan Constitution provides that “Every person has an inherent
right to life and a person shall not be arbitrarily deprived of
life. Any restriction shall not
be placed on the rights declared and recognized by this Article.”
The reactivation of the death penalty violates the constitutional
guarantee on the right to life and Article 6 of the International
Covenant on Civil and Political Rights to which Sri Lanka is a party.
There is no empirical evidence
to prove that death penalty is an effective deterrent against crimes.
But, the death penalty constitutes the ultimate cruel, inhuman and
degrading punishment. As the Director of National Human Rights Commission
of Sri Lanka Mr. Nimal Punchihewa stated on 22 November 2004, “Nowhere
in the world has capital punishment reduced crime. The human race now
calls themselves 'civilized' as they have got rid of inhuman methods
such as capital punishment. If we are going back to it, that means
we are going against the civilization.”
The death penalty also raises
many questions about the administration of criminal justice system.
Starting with the lodging of a complaint to the final judgement
in the form of conviction, the police and investigating agencies
play a critical role. Police is an integral part of the prosecution
and routinely disregard evidence that may favour acquittal and prefer
to document evidence that may support conviction. The use of torture
in custody to extract confessions is well known in Sri Lanka and
the chances of innocent people being executed for rape, murder and
narcotic crimes are high. In a country ravaged by internal armed
conflict for more than two decades in Northern and Eastern parts,
the law enforcers, most particularly the police have a propensity
to categorise all crimes as crimes against the state. Once death
penalty is enforced, it cannot be revoked if there were miscarriages
of justice.
With the reactivation of
the death penalty, the procedure embodied in the 1999 Presidential
Proclamation would be enforced. As per this procedure, death sentences
imposed in cases of murder and drug trafficking can be carried out
and would not be commuted to life imprisonment if the judge who
heard the case, the Attorney General and the Minister of Justice
unanimously recommend the execution. If the reports of the trial
judge, the Attorney General and the Justice Minister are adverse,
the Presidential signing of the death warrant will take place and
"...he (she) will be hanged by the neck until he (she) is dead."
The power of the President to grant pardons, respites and remissions
that has been earlier availed for commutation of the death penalty
to life imprisonment pursuant to Article 34 of the Sri Lankan Constitution
will have little meaning. The President has to sign the death warrant
when the trial judge, the Attorney General and the Justice Minister
unanimously provide adverse opinions against the condemned. This
procedure is inherently unfair. The Attorney General and the Justice
Minister represent the interest of the State and cannot be considered
impartial. The trial judge has too much of an association with the
proceedings and is likely to stand by his/her earlier verdict.
There has been significant
rise of organised crimes in Sri Lanka. However, according to NHRC’s
Director Mr. Punchihewa, political intervention in judiciary and
investigations together with lack of trust on judicial processes
due to slow pace of investigations are some of the main reasons
for the increase in crime. President Kumaratunga needs to address
such systematic flaws including the nexus between politicians and
criminals in order to eliminate organised crimes. Addressing the
gallery by introducing medieval and retributive justice through
enforcement of death penalty cannot reduce organised crimes in Sri
Lanka.
|