Justifying death penalty by exception

By Bernard Fernando

I read with interest several articles and statements issued by human rights defenders, civil organisations and some of the countries in the ‘Western bloc’, on the subject of ‘death penalty’ which appears to have disturbed a hornet’s nest both locally and internationally in the wake of Sri Lanka’s decision to reactivate the death penalty. 

Almost all of them have tried to justify the abolition of the death penalty in general on grounds of a) Absence of evidence to prove the deterrent effect of imposing death penalty, b) Prevailing loopholes and delays in the existing legal systems, c) Deemed unethical practice of governments robbing the right to life of human beings and d) Mistakes of judgment by the Judiciary in regard to individuals involved in homicide triggered by personal conflicts.

Let me deal with a few statements carried in some of them. One article first states: ‘Media quoted Prison officials saying most on the death row were stressed, not eating and feeling faint,’ proving that even for convicted prisoners, death penalty clearly operates as a deterrent. Then, later it states: ‘There is no evidence in Sri Lanka or any part of the world that the death penalty has prevented or reduced crimes.’

I found the latter statement as a highly-generalised, stock statement made by almost all human rights defenders both local and international. In the first place, I doubt whether strong empirical evidence is in fact available for the latter statement which obviously is tantamount to a contradiction of the former statement. 

Besides, one can never find concrete statistical evidence to prove the point beyond doubt, as the deterrent effect of death penalty at the outset operates in the mindset of hundreds and thousands of potential killers who surely would have been compelled to give up their devious plans to assassinate human beings. A net increase in murder crimes can happen due to demographic reasons.

Also, it further states: ‘All those on the death row, and all of their families, must be in agony and trauma, not knowing whether they or their loved ones are amongst the first four to be executed or when their turn might come.’ What about the agony and trauma of those numerous families whose innocent members were summarily robbed of their right to life by the anti-social, extremist killers as in the case of the brutal Easter Sunday attack and the 30-year war?

In such context, perpetrators of ‘suicide bombing’ and ‘serial killers’ who have repeatedly robbed the right of life of several innocents should not be allowed the right of life as they pose an insurmountable threat to the peaceful society at large like a malignant cancer. In our view, those charged for drug related crimes are also de facto ‘serial killers’. Years ago, it was the international community that marketed the death penalty for drug traffickers. The human rights defenders have conveniently side-lined the latter three categories.

Behaviour of international community

We meekly take for granted super powers like USA, Russia, Japan, India and most of the oil rich Middle-East countries which continue to have the death penalty in their law books. What kinds of embargoes are imposed on them? 

It is grossly unfair for developed countries to link economic support schemes such as GSP+ in developing countries to issues like the death penalty. It is an accepted global dictum that every rule can have exceptions. It is more so in social sciences. Therefore, we see no harm in resorting to exceptions in the practice for brazenly premeditated murder crimes by serial killers, perpetrators of suicide bombings and drug related criminals who by their continued existence pose a continuing threat to humanity. 

Isn’t it fair to assume that such individuals by their repeated mass killings have themselves renounced their own right to life? Their convictions in any court of law would be easy to establish and can safely be regarded as irreversible. If the mass murderer Prabhakaran was apprehended live, what would have been his plight?

In this context, it is relevant to recognise that the death penalty in the law books will greatly reduce extra-judicial killings such as those that happened during the 1971 and 1989 insurrections as well as State-driven terrorism in Sri Lanka. We cannot overlook global examples in the extra-judicial killings of Bin Laden and Muammer Gaddafi!

Alternative solution

Taking the foregoing into consideration, I venture to suggest the following strategic steps to solve the current death penalty conundrum in Sri Lanka.

1)  Continue the existing moratorium on death penalty.

2)  Exceptions to the existing moratorium to be struck on death sentences to be passed from a specified future date until further notice in regard to following categories.

a)  Perpetrators of mass suicide bombings

b)  Big time drug-traffickers (a definition has to be evolved to exempt small-scale culprits) and

c) Serial killers.

(This means all those presently in death row will continue to enjoy the moratorium.)

3) Concurrence of the concerned international community should be obtained for the above exceptions, the currency of which can be reviewed annually with a view to annulling them as early as possible.

In short, the proposal shall operate as a temporary measure to create a deterrent impact (however small), on the aforesaid categories of killers.