Will death sentence correct society?

By Ravi Perera

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 sentence.

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 motorcar accident.

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 immaterial.

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?