Cruel and degrading punishment

After convicted murderer Duminda Silva was granted a Presidential pardon last week, hundreds of death row inmates have launched a hunger strike demanding their sentences be commuted to life terms. These prisoners are asking for equal treatment before the law.

In the context of the arbitrary way presidential pardons have been issued in the recent past, their demand has merit.

The protest also raises the question about why Sri Lanka still has the death sentence on its statute books in the year 2021.

The death penalty has a chequered past in Sri Lanka. In 1956, Prime Minister S.W.R.D. Bandaranaike abolished capital punishment, only for it to be re-imposed to hang his assassin, Talduwe Somarama in 1962. Opposition to the death penalty increased in the 1970s and peaked after the botched hanging of J.D. Siripala alias Maru Sira in 1975.

Responding to public sentiment, the second Republican Constitution of 1978 made the sentence bureaucratically cumbersome. Thus, under the current Constitution, death sentences could only be carried out if authorised by the trial judge, the Attorney General, and the Minister of Justice. If there was no agreement, the sentence was to be commuted to life imprisonment. The sentence also had to be ratified by the President. These clauses have effectively ended executions and Sri Lanka has had a de facto moratorium of the death penalty for at least 45 years since its last judicial execution in 1976.

Despite the de facto moratorium, judges continue to pass the death penalty. This is primarily because in Sri Lanka the death penalty is a mandatory sentence for certain crimes. Unless there are certain mitigating circumstances, such as the convict being a minor, a pregnant female or person who is not of sound mind, judges do not have the discretion over the passing of the death penalty for individuals convicted of certain serious crimes. As a result, even though no prisoner on death row has been executed in the last 45 years, there are at present over 1,200 death row inmates in Sri Lanka.

By contrast, the Indian judiciary in Mithu vs. State of Punjab struck down Section 303 of the Indian Penal Code, which provided for a mandatory death sentence. In 1980 the Indian Supreme Court made it noticeably clear in Bachan Singh vs. State of Punjab, that capital punishment can be given only in ‘rarest of rare’ cases.  

Sri Lanka does not lay claim to an activist judiciary that might seek to take liberties with interpretation or challenge statutes passed by the legislature, however regressive or outdated such laws maybe. In this context, the only feasible option for change in the status quo is through legislation in Parliament. The legal philosopher Eugene Ehrlich argued that society is the main source of law and is a better source of law than legislation or judicial decisions.

Barring a moment of madness on the part of the former President in 2018, Sri Lanka’s moratorium on the death penalty has been a policy maintained by successive governments, whether UNP or SLFP and the tradition continues under the Gotabaya Rajapaksa presidency.

After a 45-year moratorium on the death penalty, it could be argued that Sri Lankan society has by default rejected this capital punishment for crimes, even though the punishment itself remains in the statute books.

Nearly half a century down the line, it is now time for legislation to reflect the will of the Sri Lankan people.

The death penalty is a cruel and inhuman punishment.

The death sentence is a great inequality in any country. Studies have made it abundantly clear that persons from poorer backgrounds and ethnic minority groups are disproportionately subject to the punishment from which there is no coming back.

The abolition of the death penalty will also auger well with Sri Lanka’s international obligations. The recent resolution passed by the European Parliament on Sri Lanka, which has serious implications on GSP plus trade concessions has called for the abolishment of the death penalty.

Increasingly, countries across the globe are abolishing capital punishment. The Government of Sri Lanka should consider legislation to do the same, while commuting all death sentences to life as an interim measure. When capital punishment was written into our laws, the world was a different place. In 2021, it is time.