Asian Centre for Human Rights

Dedicated to promotion and protection of human rights in Asia

 

ACHR REVIEW
[The weekly commentary and analysis of the Asian Centre for Human Rights (ACHR) on human rights and governance issues]

Embargoed for 1 December 2004
Index: Review/49/2004

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.


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