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by Daphne Charles

The ongoing debate about re-enforcing the death penalty in Sri Lanka has lost none of its intensity in the past few months. In fact, not a day goes by without a letter to the editor or some form of discussion on the subject, in the print media, at least. The recent brutal killings have only renewed discussion on the matter. Plans to re-enforce the death penalty in the country has brought into the forum arguments for and against it.

The electric Chair - a modern execution method

While on the one hand, this seems to be the solution to curb the rising rate of crime in the country, humanitarian concerns and loopholes in the judicial system itself, added to the fact that the death penalty is irreversible, have made it difficult to arrive at a decision on the subject.

'Judicial hangings are one of the few horrors that our country has been spared for over a quarter of a century,' states The Civil Rights Movement of Sri Lanka (CRM), in their newsletter for the month of February. The stress certainly seems to lie on the word 'few', reminding us of the bloodshed and destruction in our little teardrop-shaped island in the past decades. Reports of murder, rape and organized crime hit the headlines almost daily.

Those in favour of the death penalty feel that the fear of punishment by death would be the only deterrent to such activities today, and talk of its re-enforcement suggests a bold step towards establishing a just society.

Expressing his personal views, Deputy Solicitor General Palitha Fernando explained that the death penalty exists in the Statute books unabolished, yet suspended. "Therefore, when the sentence to death is pronounced, the convicted are often amused and even ridicule the system, for they know the sentence will not be executed," he said.

He even spoke of instances when the convicted had walked out of court, threatening the other party to await their return. Therefore, he felt that if the sentence were to exist only in the book and not in execution, then it might as well be abolished altogether.

However, Fernando added that personally, he felt that the re-implementation of the death penalty would act as a deterrent to crime, for people would then fear the supreme penalty they would have to pay if they commit it. In response to the issue of the irreversibility of the sentence, he explained that such a sentence is pronounced only when it is proved beyond doubt that it is planned and brutal murder, and not in cases of culpable homicide. Palitha Fernando's comments are personal to him and in no way do they represent any official view.

Dr. Mareena Thaha Reffai categorically stated that she was in favour of the death penalty, "as long as we can rectify the judicial system." She explained that Islamic law, in fact, ordered the death penalty in proved cases of adultery, murder and rape. "At present, when someone is given the death sentence, they enjoy the benefits of free boarding and lodging; sometimes even their families are looked after by those in power. So they are actually better off than most normal people in our country," explained Reffai. She used Saudi Arabia as an example to show that fear of the death penalty being implemented could actually be a deterrent to crime.

She spoke of how on a Friday, during the prayer hour, one could find the shop owners having gone to the mosque with their shops left open. "Nobody dares to steal anything, because they know that their right hand would be cut off, if they do." She thus explained that fear of punishment would prevent them from the crime. "If we bring back the death penalty, everyone - the lawyers, judges as well as the general public - will be more careful, because it would be a matter of life and death. The judicial system would improve, as well," she said.

as the CRM points out, the international trend has been steadily against the death penalty with over half the countries of the world having now abolished it. In a 1995 South African judgment in which all eleven judges of the Constitutional Court are reported to have written judgments striking down the death penalty, one judge is said to have stated that while punishment should be commensurate with the offence, it does not have to be equivalent or identical.

'The state does not have to engage in the cold and calculated killing of murderers in order to express its moral outrage at their conduct.' Furthermore, Suriya Wickremesinghe, Secretary of the Civil Rights Movement states in the newsletter of the CRM (February), "Executing murderers means that society, in a chillingly systematic and calculated manner, kills people to teach people that killing people is wrong. The restoration of hanging would degrade us all."

United Nations Secretary General Kofi Annan stated in December 2000, 'The forfeiture of life is too absolute, too irreversible, for one human being to inflict it on another, even when backed by legal process. Let the states that still use the death penalty stay their hand lest in days to come they look back with remorse knowing it is too late to redeem their grievous mistake.'

Furthermore, Amnesty International in its report, 'The Death Penalty Worldwide: Developments in 2001' states that between 1973 and the end of 2001, 98 persons were released from death rows in the USA after compelling evidence of their innocence emerged. The large numbers of such cases is the main factor behind unprecedented concern in the USA about the fairness and reliability of the capital justice system, and probably accounts for the dropping support for the death penalty in public opinion polls.

There is no doubt that fear of the law and respect for fellow-human beings and their property needs to be instilled in the minds of everyone, in order to avoid the crimes that threaten the development of a free society.

However, do the gallows provide us with the full remedies for a way out? While it rids society of the perpetrator, doesn't it leave us with the crime and the motivations behind it? What, then, are the measures that can be taken to provide long-term solutions?

"Life is created by God, and God alone is responsible for life. No one else has the right to take it away," affirmed Revd. Fr. Sydney Knight, Dean of the Cathedral of Christ the Living Saviour. "Study of criminology and sociology will show that every crime has a deep-rooted reason. That has to be dealt with first," he added. Fr. Knight explained that concepts of discipline, law and order are important for a society, but that rehabilitation, too, should occupy an important role. While organizations that provide rehabilitation have the capacity to address only a particular problem, ongoing peer support too was important, so that so called 'criminals' may not return to their crime, he said.

Ven. Gnanabhiwansa Thera of the Suvisuddharama Temple in Wellawatte said that people commit the kinds of crime today, because they had no sense of shame. "Today we have people pulling out a knife and stabbing someone out of anger, because they have no shame of their deed." However, quoting the Dhammapada, he said that 'everybody is afraid of punishment (Sabbe tasanthi dandasse).' Therefore, he feels that instead of resorting to something as drastic as capital punishment, an act like public whipping would instill fear and shame in the minds of the would-be perpetrator, thereby preventing the crime.

Secretary of the Social Scientists' Association, Kumari Jayawardena affirmed that she was totally opposed to the reintroduction of the death penalty. "It's an outdated and barbaric means of punishment and is no answer to the increase in crime," she said. She added that it does not act as a deterrent to crime, but only brutalizes society further.

Jayawardena said that this was a 'cruel and unusual' method of punishment, such punishments being illegal under international law today. Many countries have done away with it, she said, including many states from the USA.

"It's a relic from another era," stated Jayawardene, adding that about fifty academics had recently signed a motion against the re-introduction of the death penalty to Sri Lanka. Instead, she suggested that punishments should be under the prevailing laws of the land and that Police law enforcement and detection procedures should be strengthened and modernized, to bring criminals to justice.

Dr. Deepika Udugama, Head of the Department of Law, University of Colombo claimed that the plans to reintroduce the death penalty to Sri Lanka reflected the absence of sound policy.

"These are populist and superficial solutions," she said, adding that they don't address the root-causes of why crime is rampant in the country today. Dr. Udugama said that with problems in our criminal justice process, this system would prove highly discriminatory, for only the average person who can't afford a good lawyer will be subject to such sentences, while the highly politically-connected people would get away with their crimes.

She suggested that instead of resorting to such 'archaic notions, we must work on long-term policies that will address the root-causes, especially as theories about punishment have progressed today. She further recommended that those proved of crime, be made to engage in social work, under strict supervision. "This would be useful, because at the end of that period, they would have gone through some sort of sensitivity," she said.

Clearly, the decision to reenforce the death penalty or to abolish it is going to be a hard one for the authorities. Whatever the ultimate decision may be, let's hope that it would ensure the protection of the rights of all citizens alike.

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