Will death sentence correct society?
The latest to throw their considerable weight behind the growing
chorus for the imposition of the death penalty on those who commit
serious crimes is the Association of Magistrates, a body representing
what is sometimes referred to as the minor judiciary. Although thus
called, these judicial officers by and large hear the major portion of
the criminal cases in the country, albeit not those that carry the death
It is understandable that the Magistrates who are exposed routinely
to the base crudities of a society in turmoil are calling for the
termination, as it were, of the lives of those who offend grievously
against society. One need not study the statistics of crime to realize
that the law-abiding citizen is under siege today. Particularly, in
Colombo, there is hardly a household from which some item of value has
not been stolen in recent times. In the city streets we observe in
horror indiscipline bordering on mayhem. Compounding the difficulties
for the Mr. Good Citizen, it is commonly perceived that corruption, the
implacable enemy of a system of law and order, is widely prevalent.
Justice and punishment, seems to depend more on the person who is facing
the criminal charge, and the resources he could command, than the
seriousness of his act. In this gloomy atmosphere we can hardly fault
the judicial officers for wanting the hangman back. But, is the solution
offered by the Magistrates the answer to the problem?
Many learned researches have drawn our attention to the fallacy of
the argument that pain of death acts as a deterrent to murderers. It has
been pointed out by them that the death sentence does not necessarily
discourage a person contemplating murder. Most of the murder charges in
our courts get reduced to manslaughter on the absence of pre-meditation.
Even in the cases of deliberate murder the root causes are often of a
social or psychological nature, suggesting that the remedy lies
elsewhere. In many of the murder cases in our country the provocation
for the act could be traced to unresolved land and property issues. It
is generally known that land matters can take decades to be resolved in
our courts. In a poor and over-populated country the frustrations
created by civil cases dragging on sometimes beyond the life span of the
litigants is not difficult to imagine.
Similarly, even a minor dispute between neighbours, can easily become
a nightmare in which the parties are tormented endlessly by an
incompetent and insensitive system. In the existing situation only a
person, who thinks life is eternal, and the price you pay is constant
humiliation, will come forward as a witness even in a simple case like a
When the partners in a marriage wish to dissolve that relationship
their divorce proceedings can become a tortuous passage with many
unanticipated problems bedeviling them.
This harsh reality of the prevailing system of justice exists with a
background of a society where corruption and influence can get a man to
the top of the line. It is perhaps to be expected that some among us
loose control and are driven to murder.
The professions such as lawyers and doctors are also a part of our
colonial heritage. Their current form is the outcome of a long and
colourful history in Europe. We read of famed pleaders there, even going
back to medieval times, who fought fearlessly on behalf of their
clients. Oftentimes their service was gratis. The profession of lawyers
developed in a culture in which it was possible to argue on the basis of
accepted laws, which were not subject to the whim of the Sovereign. A
good lawyer, as now accepted, is not merely a person who has passed his
exams and given his dinners. He is a man of the world, sophisticated,
learned and capable of complex thinking. Much is expected of his
professional input in quality as well as range. A modern lawyer's
intellectual interests should not be confined to the dusty domes of
legal literature but must dive deep in to the larger pool of human
learning and wisdom. By the very nature of the work the profession is
concerned with it is an independent existence that a lawyer embarks on.
There is no impulse towards collectivism in this discipline so focused
on principles of justice and rationality. The number of supporters he
can muster does not determine the efficacy of a lawyer's argument. A
judge hears the evidence impartially and independently.
Those on a higher rung in the judicial ladder may review his
decision. In this system of thought, which demands proud individual
independence, there is no room for 'unionism' as exists among for
example, blue-collar workers. Such an association, if it were to exist,
should only concern itself with those issues that affect their immediate
welfare and not matters of policy. There is no question of referring to
the opinion of the 'union' when a judge is hearing a case.
The demand of the Magistrates for the extreme punishment however
draws our attention once again to the severe law and order crisis we are
facing. Only two years ago criminals allegedly awaiting trial shot dead
a judge of the High Court in his own house. It is a sad fact that in
recent times criminals have assassinated several public servants for
merely doing their job. This includes police officers, prison officers,
customs officers and even public figures like politicians. In these
attacks against a system of law and order, the rank of the victim is
What matters is that they were decent law-abiding citizens making the
supreme sacrifice upholding the law of the land. In the circumstances,
to respond precipitously to the death of a member of one branch of the
large machinery of the State may smack of insensitive elitism.
Whether we respond to barbarism with barbarism is a matter ultimately
in the hands of the policy makers. The legal system we have adopted is a
search for justice, underpinned by fine principles, which set us apart
from the enemy we fight. If we also use the methods of the murderous and
the rapists where is our claim to moral superiority?