Amila Wijesinghe – LLB (Hons)

Ladies and Gentlemen, distinguished speakers and guests.

We are here today to discuss the future of the death penalty in Sri Lanka. This is something that is of great relevance to this country, as an issue that has been a matter of significant contention within our society’s history. Quite often, events which gain national prominence due to their exceptionally tragic and gruesome nature, can have a drastic impact on public perceptions towards the death penalty. We have seen this to be true in Sri Lanka where recent events have brought the issue of capital punishment to the forefront of public debate, and this is one of the reasons why we are here today. Ours is a country that has de facto gotten rid of the death penalty – we haven’t had an execution since the 1970’s, however what we’ll consider today is whether we should implement the penalty of death which still remains in our statutes, or move towards true abolition de jure (by law). We have with us today some very qualified and distinguished speakers who will be able to share with us some of their views. These speakers come from a broad cross-section of society and we will have the opportunity to hear their different perspectives on this issue based on their experiences. I will try and make some brief notes on the context in which this debate is set.

Right to Life

A common consideration of many when discussing the issue of capital punishment, is whether a state has the authority to end a person’s life when there is a broad global consensus that every individual has a Right to life that must be safeguarded by the state to the best of its abilities. Some people even call the death penalty ‘State-sponsored murder’. Article 6 of the International Covenant on Civil and Political Rights (which Sri Lanka is party to), recognises that ‘every human being has the inherent right to life’. However, it also goes on to state that ‘in countries that have not abolished the death penalty, (the) sentence of death may be imposed’ for the most serious crimes. I think this is a recognition that the right to life is not necessarily absolute. In fact there are many circumstances where an individual’s right to life is qualified due to his actions. For instance, a mass-shooter who has a gun and starts shooting is a threat to the public and their fundamental rights and he therefore forfeits his right to life as the state can then legitimately kill him through the police.  An interesting aspect of international law is that whilst the right to life can be limited in certain circumstances, the prohibition on torture is absolute. This has attained the highest authority in international law of jus cogens, which means it cannot be derogated from under any circumstances. In other words, a state can’t torture you, but it can kill you – sometimes. This is something worth bearing in mind for the discussion on the death penalty, as one point raised by many abolitionists is the view that the implementation of the death penalty constitutes torture (or cruel and degrading treatment) due to the extended legal proceedings and uncertainty of outcome, resulting in severe physical and mental pain. It is however, a matter of debate, whether this should apply to lawful sanctions such as the death penalty, where it is an inherent aspect of the punishment itself.

Retributive vs Rehabilitative Justice

Another important consideration is the legal and moral perception of justice as a retributive or rehabilitative mechanism. Is the purpose of our penal system to make a person suffer for the crime he has committed and perhaps provide the family of a victim of murder some closure – or is it based upon reforming the individual during his punishment and reintegrating him into society. Most systems can be considered a mix of the two. People see the law as providing punishment that is proportionate to a crime committed and its value as a deterrent, but we also recognise the right to be pardoned or receive parole based on conduct. We want an individual to pay for his crime, however it’s not usually an eye for an eye. We do not believe that someone who has committed assault should be beaten up equally as punishment. We don’t believe that a rapist should be punished by sexually assaulting him. So in this sense, capital punishment can be seen as unique when a man is executed for committing murder.  Public perceptions towards the role of the law and penal system can vary between the societies of different countries and we cannot for example cut and paste the approaches of the western liberal countries. Asian and African states tend to take a stronger view towards the death penalty as a just punishment for the worst criminals. We therefore must strive to accommodate and implement our own principles. However, as we’ve already seen, certain crimes that are exceptionally gruesome which receive wide media coverage can cause a significant shift in public opinion towards capital punishment. There is a tendency to focus on those that are guilty whilst overlooking the fundamental safeguards that must be protected to ensure the interests of the innocent. The problem with public opinion is that it can be quite fickle, and it’s a difficult thing to base a legal system solely on. This is precisely why forums such as this are of such importance as they facilitate public debate and understanding on the issue and I’m sure our expert speakers will provide us with some invaluable insight.

Alternatives and International Examples

As the theme of our discussion today is the future of the death penalty in Sri Lanka, I think it is extremely pertinent for us to consider the alternatives available and the experiences of other countries that have moved away from capital punishment whilst retaining public confidence in their legal systems. Any alternative to the punishment of a serious criminal offense, must be socially, morally and economically viable – and quite importantly, especially in Sri Lanka, it must satisfy the retributive demands of the public who must be confident that the criminals are being punished.

One example is the United States, which actually abolished the death penalty between 1972 and 1976. After the death penalty was reinstated following the case of Gregg v. Georgia in 1976, many states increasingly turned towards the alternative of Life imprisonment without parole. This would be indicative of a shift in attitudes towards the penal system, where the objective is not to change or improve the criminal, but to punish him. It is about retribution. This makes it much easier for the public to feel that there is a just punishment when there is no option for a dangerous criminal to be released from prison after a few years. The use of LWOP has been adopted by other countries such as England and Wales, the Netherlands, Kenya and Turkey. Some countries like Vietnam, will consider amnesty after a minimum of 20-30 years.

In the United Kingdom, there is a mandatory sentence of life imprisonment for the crime of murder. At the time of sentencing, the court will impose a tariff, which is the minimum amount of years that must be served in prison, so that the need for punishment is met, only after which a prisoner can be considered for release.

Conclusion

In Sri Lanka, we have to realise that there is a thing called penal populism, where there is a relationship between politics and policy. The politicians of the country have to be able to reassure the public that they are guaranteeing retribution and deterrence for the most serious of crimes and this is the context of the issue in our country.

That concludes my brief notes on the issue, I thank you for listening and I look forward to hearing from our eminent panel who will continue this discussion at a very important time when our government is deliberating on a new constitution.

Amila Wijesinghe – LLB (Hons), Postgraduate student of the LLM Public International Law (University of Nottingham)