Keeping the death penalty alive
28 September 2018
Sri Lanka declares it will resume executions for drug traffickers.
The tension was near explosion-intensity as the chief justice asked Mr T C I Ekanayake, the foreman of the jury, for its verdict. The jury found Miss De Croos guilty by six to one. Mr Fernando observed that one of the jurors had tears in his eyes as Miss De Croos calmly said, “I swear to you on all that I hold sacred and declare that I am innocent of this crime.”
– Donovan Moldrich, Hangman, Spare that Noose: A historical and analytical survey of the death penalty with special reference to Sri Lanka
Pauline De Croos was sentenced to death by hanging on 7 March 1968. She had been accused of murdering a young boy, the son of one of her lovers. With a reputation for “fast cars and faster men”, Pauline’s trial in 1966 and her conviction to death in March 1968 has oft been quoted as a miscarriage of justice. Fortunately for Pauline, she was granted a reprieve by the governor general, days before she was to face the gallows.
Pauline’s trial, and subsequent sentence based on circumstantial evidence, took place in the dark years after Ceylon had suddenly changed course and recoiled and receded from its trajectory to abolish the death penalty once and for all. She was as much a victim of circumstance as many were before her and many after.
In 2018, President Maithripala Sirisena announced that the death sentence of convicted drug traffickers on death row who continued to traffic drugs in the prisons would be carried out. If implemented, this would break the unofficial moratorium on executions which the country has maintained since 1976 when the last execution took place. Though Sri Lanka has not officially adopted a moratorium or abolished the penalty – the death penalty remains on the statute books for a variety of offences – no government has implemented it for the past 42 years, with convicted criminals usually facing life sentences instead.
According to current available data, the number of drug offenders sentenced to death or life imprisonment has increased from zero in 2005 to 30 in 2010, climbing up to a 32 in the year 2012. It dropped to 8 in 2013, only to rise again to 23 in 2016. No one has been executed in Sri Lanka since 23 June 1976.
A tortuous trajectory
Donovan Moldrich, a well-known journalist and former editor of the Times of Ceylon, has recorded in great detail the struggles of the Sri Lankan political leadership to end the use of capital punishment in the country over the last century. In his 1983 book Hangman, Spare that Noose, Moldrich documents in detail the manner in which the political leadership of Sri Lanka grappled with the issue of suspending the death penalty. He traces how, in 1958, the death penalty was suspended in Sri Lanka by law. (It was never completely abolished). In December 1959, this suspension was removed, and the death penalty was introduced once again. Thereafter, in 1976, an unofficial moratorium came into play and, since then, despite the violent conflict of three decades, no one has been executed in Sri Lanka, although many continue to be sentenced to death by hanging.
According to Moldrich, since at least 1928, legislators have been attempting to abolish the death penalty in Sri Lanka, then known as Ceylon. D S Senanayake, later to become the first prime minister of Ceylon, moved a motion to this effect in the Legislative Council on 2 February 1928, seconded by another heavyweight, Sir Baron Jayathileka. The motion was accepted 19 votes to 7. Other attempts were made over the subsequent years by a number of lawmakers, in 1936, 1942, and 1955. Moldrich writes that one legislator, Dr G P Malalasekera, called for the abolition of the death penalty in 1955 in view of the commemoration of 2500 years of Buddhism the following year. Better known for his translation of the English dictionary to Sinhala, Malalasekara was a Buddhist leader, scholar, academic and diplomat.
According to Moldrich’s record of historical events, it was the elections of 1956 that really contributed to the abolitionist movement in Sri Lanka. S W R D Bandaranaike won the elections in 1956 on a Sinhala Buddhist nationalist platform as founder of the Sri Lanka Freedom Party and, despite the violence his chauvinistic policies on language would later stir within the country, he was one of the few who, perhaps ironically, championed the abolitionist cause. Within weeks of his election as prime minister, and on the heels of his maiden cabinet meeting, Bandaranaike announced that capital punishment was suspended in Ceylon. In May 1956, a Suspension of Capital Punishment Bill was presented in Parliament, to amend the penal code to abolish the practice. Historic voting records supported the bill in the House of Representatives, with 61 votes for and 1 against. Unfortunately, however, the bill was defeated in the Senate 12 to 10, with retentionists like Senator E J Cooray opposing the bill.
The drive to abolish the death penalty was not abandoned, however, despite leading retentionists calling for commissions of inquiry into the issue. Apart from Senator Cooray, some of the more prominent members of the legislature who opposed abolition included Senator E B Wickramanayake, A H Macan Markar and Sir Razik Fareed. In 1958, a bill for suspension of the death penalty was introduced by the government, again under the premiership of Bandaranaike. This time, the bill was passed in the House of Representatives. The Suspension of the Capital Punishment Act No. 20 of 1958 was passed in May of that year. As implied by its title, the bill only suspended the practice in terms of the law, as opposed to abolishing it. During the period before the bill was passed, Moldrich records that no hangings took place, since the Minister of Justice had recommended to the governor general a suspension of implementation of the death penalty.
Unfortunately, fate again intervened to prevent full abolition. A series of events subsumed the massive victory of legislative amendments that suspended the death penalty by law; on 27 May 1958, days after the bill was passed, an extraordinary gazette was issued in response to communal riots that had taken place that month. This gazette made arson, looting and trespass liable to life imprisonment or death, though the suspension also remained in place.
In October 1958, the governor general established the Morris Commission, named after Dr Norval Morris, the Dean of the Faculty of Law, University of Adelaid, known globally for his work on criminal law. The other members of the Commission were Prof T Nadaraja, Dean of the Faculty of Arts, University of Colombo, and S Canagaraja, Secretary to the Commission. The Morris Commission report, which reviewed arguments for and against abolition of the death penalty, was issued in September 1959 with the majority of the commission arguing for continuing the suspension of capital punishment.
However, the abolitionist movement was doomed to the vagaries of unfolding events. The same month that the Morris Commission report came out, a man was gunned down in Colombo, an event that would completely alter the abolitionist trajectory that Sri Lanka had begun to take. S W R D Bandaranaike, the fourth Prime Minister of Ceylon and a key figure in the abolitionist movement was shot as he sat on the veranda of his private residence in Rosmead Place, Colombo, greeting citizens who had come to meet him. He was killed allegedly due to his refusal to grant lucrative government contracts to a former political supporter and a prominent Buddhist priest, Buddharikkitha Thero, a co-defendant in the murder case. On his death bed, Bandaranaike implored for compassion for his killer, another Buddhist monk named Somarama. Just before he was to undergo surgery for what would prove to be fatal bullet wounds, he recorded a statement to the nation, saying:
“A foolish man, dressed in the robes of a bhikku [a Buddhist priest] fired some shots at me in my bungalow this morning. I appeal to all concerned to show compassion to this man and not to try to wreak vengeance on him. I appeal to the people of my country to be restrained and to be patient at this time.”
Within a week, the suspension of the death penalty was removed by an extraordinary gazette dated 2 October 1959 (both this and the 1958 gazette were specific to the relevant crimes). The Morris Commission report, which provided sound and logical analysis of crime-rate changes in the years of suspension, and explored the political, economic and social reasons that led to increase in violent crime, was forgotten.
In the trial of the five accused, the jury found Buddharakkhitha Thero, H P Jayawardena and the assassin Talduwe Somarama Thero guilty of conspiracy to murder and to murder, respectively, and sentenced all three to death by hanging. This was followed by a controversial law, the Capital Punishment (Repeal) Act passed on 7 December 1959, which repealed the previous legislation and reintroduced the death sentence retrospectively for those who committed murder. However, a loophole in the law allowed two of the convicted, namely Buddharakkitha Thero and H P Jayawardena, to escape the death sentence. The government, now led by Sirimavo Bandaranaike, the widowed wife of the slain prime minister, then made a second attempt to introduce retrospective legislation applicable to those who had conspired to commit the murder of her husband. The intention of this retrospective legislation appears to have been to net in all three conspirators, and not just the man who had pulled the trigger. Amid controversy over this appalling use of the law to retrospectively hang the murderers of her husband, a second bill, which tried to also apply the death penalty to those who conspired to commit murder as well, was withdrawn on 25 January 1962. Somarama Thero, the man convicted of the murder of Bandaranaike, was hanged on 6 July 1962.
The death of prime minister Bandaranaike completely changed the course of history for the abolition of capital punishment in Sri Lanka, and until 1976, executions were carried out in Sri Lanka by hanging, the long tradition of suspension of capital punishment apparently forgotten. Some of the more controversial cases during this period included those of Pauline De Croos and Maru Sira, the nom de guerre of a local Robin Hood of sorts. The execution of Maru Sira led to an independent inquiry into how the penalty was carried out. Reports emerged that he had been drugged with pills introduced to his food, and there were allegations that he had been hanged while in an unconscious state. These reports painted a particularly gruesome picture in which the convict had endured a cruel and prolonged death by hanging due to the fact that he had not been standing but laid out on a stretcher at the time of execution. This incident led to a public outcry and inspired several films on the case. Between 1961 and 1976, 89 executions took place in Sri Lanka. On 23 June 1976, Jayasinghe Manaduge Chandradasa, a 25-year-old cultivator from Tissamarahama who had been convicted of murder, was the last person to be hanged in Sri Lanka, at the Welikada Prison in Colombo. While no specific event appears to have motivated the subsequent unofficial reprieve, it is interesting to note that Sirimavo Bandaranaike’s government fell the following year, succeeded by a powerful United National Party (UNP) administration, headed by J R Jayawardena, who would go on to become Sri Lanka’s first executive president. Since June 1976, the death penalty has not been carried out in Sri Lanka.
The years after the unofficial reprieve in 1976, however, were also peppered with the invocation of the need for the death penalty from time to time.. It almost seemed that the progressive voices had been silenced by the brutality of civil war, and although the death penalty was never implemented, the movement for abolition appears to have lost traction in the decades that followed. The death sentence was invoked under states of emergency in 1979 and in 1981. More successful attempts were made to remove the applicability of the death penalty at least from hugely controversial laws like the Prevention of Terrorism Act (PTA), which violates international human rights obligations on a number of counts. In 1982, for example, the Ministry of Justice suggested amending the PTA to remove the applicability of capital punishment under this law, but the recommendation was only implemented in 1988 when the PTA was amended by Act No. 22 of 1988 removing the applicability of the death penalty under that Act.
In subsequent years the call for the death penalty came to the fore occasionally. In the wake of a murder conviction in 1999 following a particularly brutal murder of a family of five, then President Chandrika Bandaranaike Kumaratunga declared on 14 March 1999 that the death penalty would be reinstated. Kumaratunga is the daughter of S W R D Bandaranaike, the architect of the abolitionist movement in the 1950s.
Such pronouncements were made again, in 2004, in the wake of the shooting of high-court judge Sarath Ambepitiya in cold blood, as he was returning home from court sessions. The Bar Association of Sri Lanka vociferously demanded the reinstatement of the death penalty.
Punishing the punished
In the most recent debate on reintroducing the death penalty, President Maithripala Sirisena appears to be drawing inspiration from the Philippines’ ‘drug war’ and the rhetoric of President Rodrigo Duterte on punishing drug offenders. On 10 July 2018, cabinet spokesman Rajtha Senaratne said that those who are on death row and carrying out drug trafficking within prison premises would be executed. In a bid to thwart the allegedly thriving trade of drugs within prison walls, the decision of the cabinet was to execute all those who had been condemned to death but were still engaged in trading or dealing in drugs while on death row.. This selective application of the death penalty defies logic. The manner in which such a selection would be made is unclear, and any other motivations for this sudden decision to warn of reimplementation of the death penalty are not in the public domain. There does not seem to have been a particularly barbaric or heinous crime committed which triggered this particular decision, unlike in previous instances when the killing of a judge (Sarath Ambepitiya in 2004) or the rape and killing of a child (Seya Sadewmi in 2015) triggered threats to implement the death penalty.
However the decision of July 2018 was neither new nor exceptional. Sri Lanka has been toying with the idea of implementing the death penalty, and the fact that the laws of the country still retain this barbaric punishment makes this rhetoric all the more believable.
The Penal Code of Sri Lanka (1885) and other domestic laws carrying penal provisions provide for the sentence of death for murder (Section 296); for perjury resulting in the conviction and execution of another person (Section 191); abetment to suicide (Section 299); robbery, kidnapping or abduction with the use of a gun (S.44A read with schedule C, Fire Arms Ordinance); manufacturing drugs, trafficking, importing or exporting a number of drugs, possessing drugs, drug offenses committed with the use of a gun (Poisons, Opium and Dangerous Drugs Act) and several other offenses such as extortion with the use of a gun.
Once convicted, the implementation of the death penalty is in the hands of the president. As per Section 285(1) of the Criminal Procedure Code 1979, the president of the republic will determine the time and place of execution. On the other hand, the president may also pardon a condemned prisoner, in terms of Article 34(1) of the Constitution. This is a blanket pardon for any offense for which the convict has been sentenced to death.
International law does not prohibit the use of the death penalty. However, the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), for example,) calls for the abolition of the death penalty. It can be argued that, although Sri Lanka has not ratified the Optional Protocol, the spirit of existing international obligations demand that Sri Lanka finally abolish the death penalty from its books; be it in terms of Article 3 of the Universal Declaration of Human Rights or Article 6 of the ICCPR. Since Sri Lanka is not party to the Second Optional Protocol to the ICCPR, the Universal Periodic Review of Sri Lanka in November 2017 saw a number of recommendations being made to the Government of Sri Lanka to finally abolish this punishment. Sri Lanka itself has repeatedly voted in favour of a moratorium on the implementation of the death penalty at the UN General Assembly, including most recently in 2016.
The Human Rights Commission of Sri Lanka (HRCSL) has been a vocal advocate for abolition. In January 2016, in a formal letter to the government, it recommended that Sri Lanka abolish the death penalty. Even in the most recent example of July 2018, the chairperson of the commission publicly called on the government to abolish the punishment. In its submission, the HRCSL made the salient point that the death penalty amounts to cruel, inhuman and degrading treatment or punishment and, thus, violates Article 11 of the Constitution of Sri Lanka which guarantees freedom from torture.
The arguments for abolishing the death penalty speak for themselves. It is the ultimate punishment in that it is cruel, inhuman, degrading and, above all, irreversible, not to mention in clear violation of the basic tenet of the right to life held so dear by the Universal Declaration of Human Rights. It disproportionately impacts the poor and the marginalised (Bachan Singh v State of Punjab, 1983), and the political, economic and social causes for crime are subsumed by a collective, communal call for vengeance. The death penalty has not been shown to reduce crime rates; in fact, the findings of the Morris Commission in 1959 proved exactly the opposite in Sri Lanka. More recent studies globally, such as the one carried out by Amnesty International in 2016, reaffirm this finding. Those who are sentenced to death may be subject to unfair trials. In 1981, for example, a Sri Lankan man named S Karthigesu was sentenced to death in Malaysia on what was later found to be false evidence, due to perjury committed by one of the witnesses. In a more recent example, in the year 2000, the Supreme Court overturned a death sentence upon finding that the evidence of the sole eye witness was “open to suspicion” (Wijepala v Attorney General, 2000).
The possibility of a miscarriage of justice, and the inability of a defendant, especially one who is poor or otherwise disempowered, to access a competent and adequately remunerated defence lawyer is another major concern in Sri Lanka. The UN Special Rapporteur on the Independence of Judges and Lawyers, Mónica Pinto, after her mission to Sri Lanka in early 2017, issued a report which raised concerns vis-à-vis delays in concluding cases – for example, with criminal proceedings dragging on for up to 15 years. The report also highlights the practice of plea bargaining, with judges pushing defendants to plead guilty to offences. These are just a few of the concerns relating to the justice system which make the use of an irreversible punishment all the more dangerous.
All of these arguments, however, are not unknown to the legislator who decides on the penalty and the judiciary that applies the law. One assumes that the general public is also aware of the arguments against the use of the death penalty, though it is that same public that calls for death. The most recent reflexes by the president of Sri Lanka and several important ministers – and even Buddhist and Catholic clergy – are no different from the avengers of Bandaranaike’s killers, despite his plea for compassion in his death bed. Every time a particularly brutal crime takes place or, as was the case in the most recent example, every time a politically expedient opportunity arises, the death penalty becomes a major plank for political and public debate.
It is also unclear why the death penalty was never implemented by successive governments since 1976, even though it was possible under the terms of the law. One can only guess what the possible reasons might have been; from religious convictions on compassion for all living beings to realising the inefficacy of the punishment. Whatever the reasons, they were rarely expressed by successive holders of the Office of the President, in whose hands still lies the fate of prisoners on death row. Instead, the death penalty is used, time and again, for righteous rhetoric, ostensibly as a measure necessary to curb crime.
Pauline was convicted and sentenced to death at the age of 22 in 1968. The lone dissenting judge in her case, justice A L Sirimanne, recommended a retrial. Her appeals were rejected, and it was only the wheel of fortune and the discretion of the governor general that saved her from the gallows, days before the date of execution. Pauline was a great writer, and her diaries played a major role in the building of prejudice against her. The poet in her provided wise counsel to a nation that as yet refuses to show compassion and non-violence. On the walls of the cell she occupied in the Welikada prison, it is said, she wrote:
“To love is to live, what is life without love?”
Pauline de Croos was released on license in 1977. She eventually migrated to Australia and would have turned 72 in 2018.
~ Dinushika Dissanayake is the Deputy Director for Southasia at Amnesty International based in Colombo. The views expressed here are her own.