By Udaya P Gammanpila Courtesy Ceylon Today

The debate about imposing the death penalty has bounced back.  It was triggered by President Maithripala Sirisena’s announcement that he would grant approval to hang prisoners with pending capital punishment and engaged in the drugs trade, while facing a prison term.

Buddhist priests vehemently opposed imposing death penalty in the past. They frequently quoted the Buddha’s teaching Sabbetasanthidandassa – sabbetanjeevitanpiyan in the Dhammapada. However, the Western community and western-funded NGOs have now come forward to voice against capital punishment in response to the President’s statement. Hence, it is noteworthy of the Buddhist view and my opinion about capital punishment.

The Buddha has advised to prevent killing any living being, since everybody fears death as much as the killer. The target audience of this Gatha is the public and not the king.

The Buddha has acknowledged the State’s monopoly in respect of killing much before the western world.  King Bimbisara had attained Sovan status. King Kosala frequently met the Buddha to discuss Buddhist teachings. The Buddha never advised any king to disband his army or to give up capital punishment. In fact, King Kosala waged wars being a close friend and faithful disciple of the Buddha according to the Kosala Sanyuktha Sutra.

There are two reasons for the State’s monopoly over killing. The first is national defence.  The State must destroy internal and external enemies who wage war against the State. The second is the maintenance of law and order. The maximum punishment imposable on a violator of the law is the death penalty.  That is why it is called capital punishment.  The Government provides security to innocent people by killing the killer.  It also discourages future killings.

If everybody respects the right to life, there will be no need for the death penalty.  However, the Government must protect the peaceful majority by punishing the minority who violate the Law. Hence, it is a crime to violate the rights of the majority to protect the rights of the criminals.  In this backdrop, I am in agreement with imposing the death penalty subject to four conditions.

Most of the murderers have committed homicides because of instant anger.  When a person returns home at an unexpected time, he finds his wife is on his bed with a stranger, naturally triggers instant anger and results in an altercation which might lead to death. Most people control their anger and resolve the issue through discussions.

Although he is responsible for the murder, such a person is not a threat to society. Hence, in my opinion he should not be punished with the death penalty.  On the other hand, such murders cannot be discouraged by imposing the death penalty.

In the instance where a drunken father who tortures and rapes his own daughter, the daughter and mother kill him, implementing a well thought-out plan.  Although it is an organized crime, the murderers do not pose a threat to society.  Further, the death penalty in this instance would not serve as a deterrent.

Usually, contract killers are from the underworld. Execution of murders for money is their profession. Considering the risk associated with the contracts, they charge hundreds of thousands of rupees.  Some demand to settle them overseas to avoid police arrest. They kill to live for a better life! They will be discouraged to kill,  if there is a risk to their life as a result.  Hence, my first condition is that capital punishment should be applicable only for contracted murders out of all the homicides.

Underworld leaders are now not in fear of the law since they can easily avoid law enforcement authorities with the support of politicians and the police.  Hence, equal and fair application of capital punishment is my second condition.

The strongest argument against capital punishment is that many innocent people have been unduly punished.

Criminal Law is based on the principle that: “It is better that a hundred guilty persons escape, than that one innocent suffers”.  The benefit of the doubt is given to the suspect and the intention of the suspect is examined in the judicial process, based on this principle.

Criminal procedure has been drafted in such a way that the innocent is saved to great extent.  The suspect will be indicted in a High Court only if a prima facie case is revealed in the inquiry held in the Magistrate’s Court. If the suspect is found guilty, he can appeal to the Court of Appeal.  If he is not satisfied with the judgment, he can appeal to the Supreme Court.  A newspaper has recently reported that only 4% of the complaints received by Police, ends up with suspects being punished.

Despite the precautionary measures mentioned, innocent people have been subject to the death penalty because of the manipulation of the law by politicians, the Attorney General and the police.  Sometimes, judges are misdirected by witnesses who deliberately and innovatively lie in Court.  Victims do not appeal against the judgment since they cannot afford to retain lawyers any further.

In the light of the above, my third condition is the implementation of Automatic Appeal to the Court of Appeal, if the High Court sentences a person to death.  If the sentenced person cannot afford a lawyer, the Legal Aid Commission should arrange a lawyer who has at least 10-years experience in the Criminal Courts.

The fourth condition is that capital punishment should be restricted to contracted murder, terrorism and the illicit drug trade. Society will appreciate if capital punishment is imposed subject to the above four conditions.