Crime and punishment

by Justice P.H.K. Kulatilaka

"History is indeed little more than the register of the crimes, follies and misfortunes of mankind". - Edward Gibbon [1737-1794]

Humans are born innocent. They inherit from their mothers the tenderness of the heart. When they are able to stand on their feet 'goodness' prevail upon most of them and they stick on to it. The society takes it as its norm, 'the civil society'. On the other hand some acquire 'badness' and the civil society shuns them and for positive reasons refuses to have them in their fold as their kith and kin.

The latter group themselves into a different brand, the crime doers. Some hardcore criminals were adorned with titles, e.g. Potta Naufer, Choppe, Maru Sira, Vambotta, Mahawatte Padme, Sotthi Upali to name a few of them. Some readers may remember during the late seventies how one Aggona Chandare a convicted rapist was graced with a presidential pardon assumed police powers.

Centuries back Maximilien Robespierre [1758-1794] said "crime butchers innocence to secure a throne and innocence struggles with all its might against the attempts of crime".

Our Penal Code was drafted at a time when modus operandi in committing murder was by using weapons such as manna knife, kris knife, sword, rod or a pole and a locally manufactured galkatas. Exceptions to the offence of murder as set out in section 294 were drafted to suit the commission of the offence with such weapons. Now the circumstances under which heinous offences are committed and the type of sophisticated weapons used are quite different. In that scenario those provisions now become obsolete and call for amendments.

The writer does not intend in making a critical analysis but to give the reader an idea as to the nature of the punishments visited on a crime doer in our country.

Conscience

Crime stands at the top of the list of matters that prick the conscience of the law abiding citizens who desist from committing crimes and continue to believe in moral values. Albeit, they are utterly helpless against the emergence of a gun culture and wide spread use of firearms in committing crimes which some explain as a by-product of terrorism of yesterday. Some criminals are contract killers who are attracted by 'big money' offered to them. These killers are risk takers. Possibility of getting caught and convicted is low. It is common knowledge now that only about five percent of the prosecutions end up in conviction.

The rising trend in gruesome crime is a constant worry for the peace loving citizens of the country. Deeply ingrained in their minds is the question as to when crime will hit them or their families.

Punishment is an expression of civil society's disapproval of crime and the degree of disapproval is expressed by the magnitude of punishment as prescribed by the Penal Code and other statutes. The trial judge has a huge responsibility to decide the punishment especially where he has to exercise judicial discretion. In the case of the Attorney General vs. H.N. De Silva then Acting Chief Justice observed " A judge should in determining the proper sentence first consider the gravity of the act itself and should have regard to the punishment provided in the Penal Code or other statutes under which the offender is charged.

"He also should have regard to the effect of punishment as a deterrent".

Historically deterrence had been the sole criterion of curbing crime. When it came to heinous crimes punishments were extremely cruel. Robert Knox in his book An historical relation of Ceylon referring to the method of punishment by the King said, 'He seems to be naturally disposed to cruelty... His cruelty appears both torture and painful death he inflicts, and in the extent of his punishment, viz. upon whole families for the miscarriage by one of them'.

The British after they became the rulers of Ceylon by Proclamation of January 30, 1800 abolished barbarous modes of punishment.

Capital punishment

Death sentence is the gravest form of punishment that is prescribed by our law. An accused who had been convicted of murder under section 296 of the Penal Code or convicted under the relevant provisions of the Poison , Opium and Dangerous Drugs Ordinance ' shall be punished' with death. It goes on the footing that a serious crime must be answered with a grave punishment. Murder is unique in that it destroys the person it injures.

A person who willingly or knowingly takes away the life of another forfeits his right to life. Death sentence is a mechanism of State defence.

Radio, television, daily news papers and other media are filled with startling news of gruesome murder. One of the arguments against enforcing the death penalty is the often misconceived maxim of the English Law that, 'it is better that ten guilty men should escape than one innocent man should suffer'. Siripala alias Maru Sira was the last person to be hanged [1975]. In today's context he is just a minnow.

In terms of section 281 of the Code of Criminal Procedure Act sentence of death will not be pronounced if the convict is under 16 years of age but in lieu of that punishment the court shall sentence him to be detained during the President's pleasure. If the court finds that a woman found guilty is pregnant the court in lieu of death sentence shall sentence her to life or for any other term. [See section 54 of the Penal Code read with section 282 of the Code of Criminal Procedure Act]. Here the legislature has recognised the right to life of an unborn child.

To be continued