1. Historical context
Divided into ten stages, the historical context with regard to capital punishment in Sri Lanka is as follows:
1st period ˇV this refers to the earliest recorded times where capital punishment held sway in this country and which state of affairs continued right up to the 1st century A.D.
2nd period ˇV in the period between 1st century A.D. and the 13th century, there appears to have been four brief stages where capital punishment was abolished or un-enforced.
3rd period - during the 13th century and the early part of the 20th century, it would be reasonable to infer that capital punishment continued to operate with no positive movement at resistance.
4th period ˇV between 1928 and 1958, there manifested four attempts to abolish capital punishment, all of which were abortive:
- Motion in the Legislative Council in 1928;
- Motion in the State Council in 1938;
- Resolution in the House of Representatives in 1955 which, though approved by the House, could not be implemented due to a change in government;
- Bill presented in Parliament in 1956, passed in the House of Representatives but rejected in the Senate;
5th period - in April 1958, the Suspension of Capital Punishment Act No. 20 of 1958 was passed by both Houses of Parliament. According to the provisions of the Act, the Act was to be in force originally for three years.
6th period - in May 1958, at the height of the civil disturbances consequent to communal riots taking place in the country, the government proclaimed a state of emergency under which offences against property such as arson, looting and similar offences were declared to be punishable with death. The proclamation remained in force until March, 1959.
7th period - on 15th October, the Governor-General appointed a Commission of Inquiry on Capital Punishment under the provisions of section 2 of the Commissions of Inquiry Act No. 17 of 1948.
8th period - following the assassination of the Prime Minister in September 1959, the death penalty was restored in the country. From the year 1958 to 1976 for example, there has been a total of 89 executions out of 1,200 and 92 sentences of death imposed on offenders.
9th period - since the eighties however, actual executions have been rare and article 34 of the Constitution which empowers the president to grant pardons, respites and remissions has been availed of for commutation of the death penalty to life imprisonment.
2. Prevalent Issues
The government first announced a policy change with regard to the death penalty on 13 March 1999 as part of a larger issue of the presidential prerogative of granting remissions of sentences imposed by the courts. The intention was that death sentences imposed in cases of murder and drug trafficking would be carried out and would not be commuted to life imprisonment if the judge who heard the case, the Attorney General and the Minister of Justice unanimously recommended the execution of such sentence. If all three reports are adverse, the Presidential signing of the death warrant will take place and "...he (she) will be hanged by the neck until he (she) is dead."
The intention of the government, as stated, has been reiterated in the year 2002, raising very problematic issues with regard to the fact that Sri Lanka appears to be on the verge of resuming executions, after 23 years of being a de facto abolitionist country.
Thus, activists have continued to urgently present convincing and credible arguments as to why there should be a wholesale abolition of Section 52 of the Penal Code (which provides for the imposing of the death sentence on offenders) in the context of Sri Lankaˇ¦s international obligations under article 6 of the International Covenant on Civil and Political Rights (ICCPR).
While recapitulating some of the principal arguments advanced by the adherents of the retentionist school of thought, activists are addressing these arguments from, interalia, the theoretical standpoints of deterrence, retribution, rehabilitation, long term effect, administration of justice, alternative punishments, prison administration, public opinion, legal factors such as the onus of proof, constitutional and human rights norms and religious values.
The thrust of these arguments is that accepted human rights norms should triumph over perceived criminal justice, particularly with regard to women and juveniles in the prevalent criminal justice system.
Towards that end, activist groups are presently engaging in an in-depth historical study of the law and practice relating to capital punishment in Sri Lanka with particular focus on relevant religious, social and cultural factors that militate against the imposing of the death penalty; carrying out factual studies of the existing situation with regard to offenders on whom sentence of death has been passed involving thorough documentation of death penalty cases and death row conditions, with particular reference to women as well as with reference to juveniles detailed "during the Presidentˇ¦s pleasure", which is the alternative punishment provided with regard to persons under the age of eighteen years to the imposing of the death sentence. (Section 53 of the Penal Code).
Posted on 2003-11-25