Death penalty is not the answer

It was reported that President Maithripala Sirisena’s proposal to implement the death penalty to drug traffickers was received with almost unanimous applause by the ministers, at the Cabinet meeting. The sole exception was Finance and Mass Media Minister Mangala Samaraweera, who openly stated he was principally opposed to the death penalty.

The death penalty can be considered as a pre-meditated and cold-blooded killing of a human being by the State, in the name of justice. It violates the right to life as proclaimed in the Universal Declaration of Human Rights (UDHR).

At the end of 2017, 106 countries (a majority of the world’s states) had abolished the death penalty in law for all crimes, and 142 countries (more than two-thirds) had abolished the death penalty in law or practice. Most executions took place in China, Iran, Saudi Arabia, Iraq and Pakistan – in that order.

The objectives of punishing criminals are threefold: deterrence, retribution and rehabilitation. While the death penalty, the ultimate cruel, inhuman, degrading punishment, does not result in retribution and rehabilitation, its supporters argue of its deterrent effect.

The death penalty does not have a deterrent value. It does not decrease crime. In the United States, states, which implement the death penalty do not have lower homicide rates. Nowhere has death penalty been shown to have any special power to deter crime. On the contrary, it diverts attention from a real solution that is efficient, prompt and comprehensive crime investigation followed by quick and effective prosecution.

How many were sentenced to death in the United States for crimes they did not commit? The result of a new study released recently believes the figure is 1 in every 25 (4 percent).

There are many documented cases of innocent men and women being executed.

One was that of Timothy Evans, who was executed in March 1950 in England for murdering a woman. Three years later, another man, John Christie, admitted responsibility for killing six women, including the woman that Evans purportedly killed!

In February 1994, authorities in Russia executed serial killer Andrei Chikatilo for the highly publicised murders of 52 people. The authorities acknowledged that they had previously executed the "wrong man," Alexander Kravchenko, for one of the murders in their desire 'to stop the killings quickly.'

It has been documented that DNA profiling tests carried out in a period of 10 years have provided stone-cold proof that 69 people who were sent to prison and death row in the US did not commit the alleged crimes!

History shows that in Sri Lanka, over a long period of time repugnance at the death penalty has been felt and expressed by people of varying political colours, and it is a matter that should and can be taken out of party politics.

Attempts to abolish the death penalty in Sri Lanka began before independence.

As early as in 1928, the Legislative Council adopted a resolution moved by D.S. Senanayake. It called for the abolition of the capital punishment. 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 to suspend the Capital Punishment Act'. The decision was taken at the very first Cabinet meeting of the 1956 government of S.W.R.D. Bandaranaike. As a result, the death penalty was suspended for threeyears. However, after the assassination of Bandaranaike, the caretaker government headed by W. Dahanayake decided to reimplement the death penalty. Executions resumed, but virtually remained suspended after 1976 as Presidential pardons were given by successive Presidents from 1977.

For a correct conviction, the police, judicial medical officers, the Department of Government Analyst, the lawyers prosecuting and defending, and a jury are responsible.

The quality of some of our judgments, to say the least is unsatisfactory. This is not my opinion but the Supreme Court's opinion in the Soysa vs. Arsecularatna case.

It is well-known that our criminal justice system is heavily weighed against the poor and the disadvantaged, who do not have the capacity, knowledge and resources to search for evidence that would show their innocence, and who have less access to competent and experienced lawyers. Therefore, they are the most likely victims of miscarriages of justice.

All-Ceylon cricketer Mahadeva Sathasivam would have been hanged, if he could not afford 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, who was charged with the murder of his wife, would have been hanged if he did not have resources to retain G. G. Ponnambalam and Dr. Colvin R. de Silva to defend him. In fact, the High Court 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 and cannot afford competent defence lawyers?

We have to consider the problems faced by the police in crime investigations and they should be solved. Some of them are: Inadequate human and material resources, insufficient training, inadequate medical and scientific support services, insufficient time to investigate crime, politicisation of police, influence and bribery.

The debate for or against death penalty should not be opened. It should never open. Rather than justifying the death penalty, Sri Lanka should abolish the death penalty NOW.

The only world leader who praised President Sirisena for attempting to replicate his country’s ‘ successful’ war on drugs is the Philippines' President Rodrigo Duterte, under whose rule, acccording to the the Human Rights Watch, at least 12,000 havebeen killed as of January 2018.

Sri Lanka is a signatory to the Second Optional Protocol to the International Covenant on Civil and Political Rights, in 1989. The Protocol says, "Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction."

Although the death penalty is in our statute books, we have not implemented it since 1976. Presidents J. R. Jayewardene, Ranasinghe Premadasa, D. B. Wijetunga, Chandrika Bandaranaike Kumaratunga and Mahinda Rajapaksa quite correctly did not implement the death penalty. I am certain that President Sirisena would not execute any prisoner.

Dr. Colvin R de Silva once observed that the simple fact that the death penalty was irreversible was in itself a sufficient reason for its abolition.

I wish to conclude this article with what Dr. Colvin R. de Silva said during the Parliamentary debate to abolish the death penalty in 1956. He said, “Of all things that the State may take away from man there is one thing which if you take it 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 recognized to have been done when you locked him away. But if you take his life, you may compensate his dependents 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."

(The writer is an Emeritus Professor of

Forensic Medicine and Toxicology, University of Colombo, and Professor of Forensic Medicine, Sir John Kotelawala

Defence University).