Death penalty not the answer

by Prof. Ravindra Fernando

The death penalty can be considered as a pre-meditated and cold-blooded killing of a human being by the State, in the name of justice. It violates the right to life as proclaimed in the Universal

Prof. Ravindra Fernando, Senior Professor of Forensic Medicine and Toxicology, and Acting Director, Centre for the Study of Human Rights, University of Colombo.

Declaration of Human Rights (UDHR).As of March 2015, 99 countries have abolished the death penalty for all crimes. In 2014, at least 22 countries around the world carried out executions.

In 2014, at least 2,466 people were sentenced to death worldwide - up 28% on 2013. Some 23 countries can be considered abolitionist de facto; they retain the death penalty in law but have not carried out any executions for the past 10 years or more. In 2013, 22 countries across the globe executed 778 people. Five countries led the way - China, Iran, Iraq, Saudi Arabia, and the US, in that order.

Less than 80 countries retain and use the death penalty today.

Objectives of punishing criminals are three-fold: deterrence, retribution and rehabilitation. While death penalty, the ultimate cruel, inhuman, degrading punishment, does not result in retribution and rehabilitation, its supporters argue of its deterrent effect.

All available research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment and such proof is also unlikely to be forthcoming. The evidence as a whole, still gives no positive support to the so-called deterrent hypothesis.

No real deterrent

Nowhere has death penalty been shown to have any special powers to deter crime. On the contrary, it diverts attention from a real solution that is efficient, prompt and comprehensive: investigation of crime followed by effective prosecution.

Only two things about the death penalty are, however, certain beyond dispute. One is that it is irreversible. The other is that innocent people have been executed. Aren't these compelling reasons why this particular punishment should have no place in our criminal justice system?

There are documented cases on innocent men and women being executed.

Timothy Evans was executed on 5 March 1950 in England for murdering a woman. Three years later, another man, John Christie, admitted responsibility for killing six women, including the woman that Evans purportedly killed!

A man named Mattan was convicted on 24 July 1952 at Glamorganshire Summer Assizes, Swansea, Wales, for killing one Lily Volpert in her shop on March 6 1952. Leave to appeal was refused on 19 August 1952. Mattan was hanged at Cardiff Prison on 3 September 1952. Referred by the Criminal Cases Review Commission, the Court of Appeal quashed the conviction on 24 February 1998, ruling that the conviction was unsafe because the evidence of the main prosecution witness was unreliable.

Innocent but executed

James, a veterinarian, was convicted at Stafford Crown Court in England on 25 May 1995 of the murder of his wife Sandra, in January 1994.

He was sentenced to life imprisonment as the death penalty was then abolished in the UK. The cause of death was a fatal dose of immobile, a drug used in veterinary practice to anaesthetize horses.

The Criminal Cases Review Commission referred the case to the Court of Appeal on 28 November 1997, and the conviction was quashed on 28 July 1998 on the grounds that the terms of a note in Sandra's handwriting, discovered more than two years after her death, were consistent with her intention to commit suicide.

In February 1994, authorities in Russia executed serial killer Andrei Chikatilo for the highly publicised murders of 52 people.

The authorities acknowledged that they had previously executed the "wrong man," Alexander Kravchenko, for one of the murders in their desire 'to stop the killings quickly.'

It has been documented that in a period of 10 years, the DNA profiling tests have provided stone-cold proof that 69 people who were sent to prison and death row in the US did not commit the alleged crime!

History shows that in our country, over a long period of time repugnance at the death penalty has been felt and expressed by individuals of varying political colours, and is a matter that should and can be taken out of party politics.

Attempts to abolish the death penalty in Sri Lanka commenced before independence.

As early as in 1928, the Legislative Council adopted a resolution moved by D.S. Senanayake that capital punishment should be abolished. Similar resolutions to this effect were thereafter at various times proposed by Susantha de Fonseka of Panadura, Dr. A.P. de Zoysa of Colombo South, and Fred E. de Silva of Kandy. All these attempts failed.

The most serious attempt to abolish the death penalty was made as a result of a decision of the very first Cabinet meeting of the government of S. W. R. D. Bandaranaike in 1956. The "Suspension of Capital Punishment Act" suspended the death penalty for a trial three-year period.

However, after the assassination of Prime Minister Bandaranaike, the caretaker government headed by W. Dahanayake repealed the Act. Executions resumed, but felt into disuse again after 1976 as Presidential pardons were given by successive Presidents from 1977.

Rise of executions

Should the State assume the role of executioner? Judicial executions are not an act of defence against an immediate threat to life. It is the premeditated killing of an identified prisoner for the purpose of punishment, a punishment which could take another form. What then is the solution for the rising crime rate in Sri Lanka?

How to respond to public anger when persons convicted of particularly grave crimes are released after what appears to be an unduly short period?

On 16 June 1995, holding the death penalty unconstitutional, all eleven members of the Constitutional Court in South Africa stated that, "The greatest deterrence to crime is the likelihood that offenders will be apprehended, convicted and punished. It is that which is lacking in our criminal justice system." Isn't this equally true of Sri Lanka as well?

The Court also stated that punishment should be commensurate with the offence but it does not have to be equivalent or identical. "The State does not have to engage in the cold and calculated killing of murders to express its moral outrage at their conduct," the Court said.

Our criminal justice system is heavily weighed against the poor and the disadvantaged, who not have the capacity, knowledge and resources to search for evidence that would show their innocence, and who has less access to competent and experienced lawyers. Therefore, they are the most likely victims of miscarriages of justice.

Hanged if not for...

All-Ceylon cricketer Mahadeva Sathasivam would have been hanged if he could not afford to retain Dr. Colvin R. de Silva and get down Prof. Sydney Smith, Professor of Forensic Medicine, University of Edinburgh, to support the crucial medical evidence of Professor G. S. W. de Saram, the first Professor of Forensic Medicine of the University of Colombo.

Dr. Daymon Kularatna who was charged for the murder of his wife would have been hanged if he did not have resources to retain Mr. G. G. Ponnambalam and Dr. Colvin R. de Silva to defend him.

I consider, based on scientific and circumstantial evidence, both were innocent. What is the plight of a poor, uneducated villager who is accused of murder who cannot afford competent defence lawyers?

Those who support the death penalty say that there are adequate safeguards listed by the government such as the recommendation of the trial judge, the Attorney General, and the Minister of Justice, affirming the death penalty, based on the evidence presented during the trial.

This I do not think is an ideal mechanism for arriving at a life and death decision as political considerations and pressures, and public outcry are bound to be key factors.

During the Parliamentary debate to abolish the death penalty in 1956, Dr. Colvin R. de Silva said, "Of all things that the State may take away from man there is one thing which if you take away you cannot only not return but you can never compensate him for, that is his life. You may put a man in prison and deprive his liberty.

You cannot, of course, return him the days he was in prison, but you may in some degree compensate him in other ways for the wrong that is recognised to have been done when you locked him away.

But if you take his life, you may compensate his dependants and his relatives but never, can you give him anything adequate or inadequate, to replace that which was taken from him, once you are dead you may never brought to life again."

Sri Lanka is a signatory to the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty in 1989.

The Protocol says, "...noting that article 6 of the International Covenant on Civil and Political Rights refers to abolition of the death penalty in terms that strongly suggest that abolition is desirable...that all measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life, desirous to undertake hereby an international commitment to abolish the death penalty." All states signed this Protocol have agreed that "No one within the jurisdiction of a State Party to the present Protocol shall be executed" and "Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction."

The quality of some of our judgements, to say the least is unsatisfactory.

This is not my opinion but the opinion of the Supreme Court. This is what the Supreme Court said about the judgements of the District Court and the Appeal Court in the Soysa vs. Arsecularatna case. "It appears that neither the original Court nor the Court of Appeal gave adequate consideration to the question of causation...In any event, the Court of Appeal was clearly in error when it concluded that the defendant was negligent...Neither Court could have fallen to this error, if a proper evaluation of the evidence was made, as to what symptoms of the malady manifested and when they did manifest."

The Supreme Court thought that in this case the other Courts did not evaluate evidence properly.

Isn't that exactly what is expected from a Court?

We have to also consider the problems faced by the police in crime investigations. Some of them are: Inadequate human and material resources, insufficient training, inadequate medical and scientific support services, insufficient time to investigate crime, politicisation of police, influence and bribery.

Failures

The Kotakethana double murder case failed perhaps due to one or more reasons I have described above. I am not surprised even if there is an acquittal in the case of brutal gang rape and murder of school girl Vidya Sivaloganathan in Pungudutivu.

The debate for or death penalty should not be opened. It should never open. Rather than justifying the death penalty, Sri Lanka should abolish the death penalty.

- colombomedics75.org