By ASGAR HUSSEIN
A drowning man, it is said, will clutch at a straw. This perhaps explains President Maithripala Sirisena’s decision to reactivate the gallows. As the presidential election looms closer, he may have imagined that such a move will bolster his battered reputation.
Looking at it cynically, his decision to execute drug traffickers would prove popular. Any opinion poll will bear this out. Contrary to the Buddhist ideals of non-violence and compassion, there is a constant clamour for executing criminals here. However, it is foolish to imagine that this will create a safe, moral society. Rather, it will have profound social implications and erode our very humanity.
Implementing the death penalty will certainly deflect attention from the real issues confronting us. Executing criminals now and then will give us the illusion that justice has been done, but what is the point if others continue their activities with the patronage of powerful politicians and law enforcement officials? The gallows will only serve as a smokescreen for the vast-scale corruption and other evils at the very top.
In such a context, resurrecting the hangman will not curb crime. What will really deter criminals, however, is the certainty that they will be apprehended, prosecuted, convicted and sentenced. This is what needs to be pursued.
The sad truth is that our law enforcement, judicial and penal systems are severely compromised. The police are often alleged to falsely implicate people in crimes. The rich and powerful are known to use their connections to get away or manipulate things. Less influential people risk being wrongfully convicted due to fabricated evidence, perjury and misconduct by prosecutors. Further, there is no consistency or evenness in sentencing.
The fact is that those behind bars can always be kept in check. The real danger is from the criminals who keep evading the so-called ‘long arm of the law.’ Bringing them to justice, rather than hanging those already incarcerated, is what will create a safer society.
Whether driven by sinister political motives or not, reactivating the gallows is certainly myopic. Serious consequences would follow. Once implemented for drug trafficking, it could be extended to other crimes like murder. It will result in grave injustices to certain individuals in particular, and the dehumanization of society in general.
The death penalty is an inherently dangerous thing. As countless cases across the world have shown, the whole process is subject to the flaws of human nature. It has rightly been described as arbitrary and capricious. So much depends on the decisions of judges, juries and prosecutors, not to mention the machinations of the rich and powerful. Given the Sri Lankan experience, we should be very wary.
It is easy to believe that innocent people do not get convicted. After all, does not the law require that a crime be proved beyond reasonable doubt? However, in practice things are far different from the ideal. A miscarriage of justice could occur due to many reasons – the prejudices of judges and juries; perjury; suppression of vital evidence; framing by the police; fabricated evidence; seeking and interpreting evidence according to a preconceived theory disregarding other possible views; and of course manipulation through political interference.
Around the world, numerous people have been executed for crimes they didn’t commit. This is a frightening prospect. It means that the state – and all of us by extension – will have innocent blood on our conscience.
Final and irrevocable
If a death sentence is carried out, it is final and irrevocable. Nothing can be done to bring the dead man back to life. However, if a person is imprisoned and new evidence later comes to light proving his innocence, then he can be released and compensated. Imprisoning a man due to wrongful conviction is terrible, but it is far better than putting him to death.
The line between guilt and innocence is sometimes very blurred. In many criminal trials, it becomes very hard to reach a conclusion with absolute certainty. A reading of some of Sri Lanka’s celebrated criminal cases – including the Sathasivam case and the Pauline de Croos case – will make this abundantly clear.
It can be baffling when the scales of evidence are not clearly weighed down one way or the other. Even medical opinion can be divided. How then does one rationally assess the odds and probabilities of guilt? When the prescribed sentence is death, it is frightening that a life should hang so precariously on some arbitrary factors that will ultimately tilt the scales of justice.
In Sri Lanka, as in the US and many other countries, the law is applied unevenly. The death penalty is largely inflicted upon the poor, the uneducated and the mentally ill. The rich and powerful rarely suffer the consequences. After all, being able to afford a clever and eminent lawyer can make the difference between conviction and acquittal. By contrast, the poor cannot even afford a mediocre lawyer. Here it is worth quoting that Athenian statesman Solon, who said over 2500 years ago, “Laws are like spiders webs: if some poor weak creature comes up against them, it is caught; but a bigger one can break through and get away.”
There is no doubt that executions have a dehumanizing effect on society. Rather than promoting morality, they will distort the minds of our young. We often hear people say things like, “We must have punishments like in Saudi Arabia where criminals are publicly beheaded.” When they express such views, are they not aware of the deep flaws in such societies? Why do countries with the harshest laws have so many people who are cruel and intolerant? Have women in such places not been killed for having sexual relationships?
Severe punishments are a reflection of unenlightened societies. Rather than protecting people and resolving existing social ills, they come back full circle and corrupt from within. As the 18th century Italian jurist Cesare Beccaria stated in his highly influential treatise On Crimes and Punishment, “The death penalty cannot be useful, because of the example of barbarity it gives men.”
A gruesome history
Sri Lanka has a long and gruesome history of executions. It is said that during the days of the Sinhalese kings, there were 32 methods of execution. These have been described as “ranging from the famous areca nut tree device where a man was tied to two trees and then rent asunder, down to the barrel device where the victim was put into a barrel with nails projecting on the inside and rolled down a hill or slope.”
There are numerous acts of cruelty recorded in the olden days. For example, Robert Knox wrote about the tortures and painful deaths inflicted by the 17th century Kandyan King Rajasinghe II. He describes prisoners impaled on stakes and those killed by elephants.
Under the British, the gallows became a common form of execution. Among the sensational public hangings then was that of legendary outlaw Saradiel, on Gallows Hill, Kandy in May 1864. The execution attracted a vast crowd, including many European women. They would have been surprised to see that Saradiel was a small man, standing at just 5 feet 3 inches, rather than the powerfully-built and fearsome one they imagined him to be.
Author Leonard Woolf described some executions in the early part of the 20th century. As a junior civil servant based in Kandy, he had witnessed some gruesome hangings in Bogambara Prison. One execution he describes is particularly horrifying. A miscalculation of the drop or some other problem resulted in the convict’s head being practically torn from his body, “and a great jet of blood spouted up three or four feet, covering the gallows and the priest praying on the steps.”
Perversion of justice
The death penalty was suspended after the coalition government of SWRD Bandaranaike took power in 1956. At that time, and for some years after, there was much debate on the issue among politicians. Some spoke about cases where innocents died on the gallows due to mistaken identity or perjured evidence. Perjury – or giving false evidence under oath – has always been rampant in Sri Lanka.
Dr. Colvin R. de Silva, a prominent socialist, believed that innocents could suffer. He noted that there were serious weaknesses in the machinery of justice, from the early stages of investigation up to the later stages of the trial.
In 1958, the government appointed a commission of inquiry to look into the death penalty. It comprised eminent men and was headed by Dr. Norval Morris, who became a highly influential law professor and criminologist. The Morris report was very comprehensive. Its verdict was that the death penalty did not have a stronger deterrent effect than protracted imprisonment, and could claim innocent lives due to miscarriages of justice.
However, just two weeks after the report was published in 1959, Prime Minister SWRD Bandaranaike was assassinated. He was shot by a monk named Somarama, and in the shock and anger that followed, the death penalty was reintroduced. Though the Morris report was brushed aside after that, it came to be regarded as an invaluable study on the death penalty in other countries.
Many men died on the gallows after 1959. The last person to be judicially executed in Sri Lanka was J.M. Chandradasa, a young farmer convicted of murder. He was hanged at Welikada Prison on June 23, 1976. One of his final acts was to gift his corneas to the Eye Donation Society.
Since his execution, the gallows has not functioned as a machine of death in Sri Lanka. However, if President Sirisena has his way, more prisoners will die at the end of a rope. We now need to ask what a politicized society like ours can achieve from the death penalty.
It is simply not possible to promote civilized behaviour through state-sanctioned killings. These will further brutalize a country that has already seen so much hatred and violence. There is certainly no quick-fix solution to crime. However, a professional, efficient and independent criminal justice system will work far better than the gallows.