Focus on Rights
The horror of hanging the wrong person
By: Kishali Pinto Jayawardene
All those optimists (in cluding myself) who naively
believed that moves by the Government to reintroduce capital punishment
were a passing phrase, announced in the heat of the moment and in the wake
of a number of brutal murders in the country, are now eating their words.
 It
appears that, on the contrary, the Government is serious about capital
punishment. Case records of prisoners sentenced to death are being called
for and reviewed on a case by case basis.
The observations of the judge who tried the case are to be forwarded
to the Attorney General for instructions and thereafter sent to the Minister
of Justice who will make his recommendations and in turn pass it on to
the President. If all three reports are adverse, Presidential signing of
the death warrant will take place and convict will be hanged by the neck
until he or she is dead. Thereby, it is hoped that the rising levels of
murder and drug related crime would decrease.
Beg pardon but are we not superbly and absolutely missing the wood for
the trees? That the public cry for justice appears to be strong given this
apparent increase in criminality in the country has to be conceded. To
maintain a lynch call that all would be well once executions are resumed
is however coming on a bit too strong.
What about the deeper maladies in the system for instance? Take the
weaknesses in the police investigations procedures as a whole, plagued
by politicization, corruption and inefficiency. Or the present criminal
justice system with its ineffective methods of imprisonment of offenders
who get away virtually scot free with prevalent practices of parole and
remission. Or the increasing brutality of society itself today, immunized
by an ongoing war to the extent that torture, gang warfare, rape and murder
are matters of deja vu to the average Sri Lankan?
What would be amusing if it were not so tragic is the manner in which
the need to address all these problems is so conveniently bypassed and
the focus so tantalisingly on the death penalty alone. Is it seriously
contemplated that resumption of executions would gloss over these fundamental
defects, thus magically providing a quick fix solution to a diseased system?
Is it not rather that actual executions carrying with it all the horrors
of human beings deliberately put to death by the State would lead to a
further brutalisation of society? These are questions on which public opinion
ought to be sought in a systematic manner before executions are resumed
in actual fact.
For those indecisive souls wavering on the borderline between anti and
pro death penalty, one convincing argument should clinch their opting for
the former rather than the latter. This has to do with basic questions
concerning the quality of justice itself.
The present law mandates that the death penalty could be imposed by
'an order of a competent court made in accordance with procedure established
by law.'
To what extent however is the order of such a competent court infallible?
Horrifying details of cases where persons convicted as criminals and
hanged but later found to be innocent are not uncommon. A case today galvanising
the staid British public illustrates well how this miscarriage of justice
can happen. Here, Hanratty, a 25-year-old petty criminal was hanged some
37 years ago for the murder of a man and the rape of his girlfriend.
Now, new evidence has revealed that vital evidence that could have led
to his acquittal had been suppressed at the time of his trial. This evidence
had been suppressed by senior police officers. The disclosures have led
to a wave of public indignation against the execution.
Friends and family members of the hanged man who had always been convinced
that Hanratty had nothing to do with the murder have hailed the new evidence
as vindicating their fight to clear his name. It has all along been maintained
by them that Hanratty had been used as a scapegoat by the police when public
horror at the nature of the crime drove them to seek a conviction at any
cost. The case is now being used as a good example of the dangers of capital
punishment.
Hanratty is not unique in his plight. In February 1998, an appeal court
in the United Kingdom posthumously overturned the conviction of Mahamood
Hussein Mattan, a Somali national who was executed in September 1952 after
a trial strongly tainted by racism.
In February 1994, authorities in Russia executed Andrei Chikatilo for
the highly publicised murders of 52 people. The authorities acknowledged
that they had previously executed the wrong man, Alexander Kravchenko,
for one of the murders in their desire to stop the killings quickly. Another
innocent man suspected by the authorities of the killings committed suicide.
On April 21, 1998, the Supreme Court of Uzbehkistan posthumously quashed
the conviction of a former Uzbek government minister, Usmanov who was executed
in 1986 on charges of corruption.
A number of countries which retain the death penalty have recently released
condemned prisoners who were mistakenly convicted. They include the Phillipines,
Malaysia, China, Taiwan, Trinidad and Tobago, Malawi, Turkey, Japan and
the United States of America. In Japan, two innocent prisoners were released
after each spent 34 years under sentence of death.
Thus the perils of a mistaken conviction are not one to a million. Instead,
they are very real and the ultimate horror of a human being deliberately
being put to death for a crime that he or she did not commit is not something
to be taken lightly.
Meanwhile, in its letter to the President recently, Amnesty International
Secretary General Peirre Sane expresses deep concern that Sri Lanka may
be on the verge of resuming executions, after 23 years of being a de facto
abolitionist country. Sane urges that the policy change be reconsidered
and points out that what is necessary is an in depth study to increase
understanding of the actual situation of criminality in the country, its
causes and the means available for combating it.
"This in turn may help to increase the public understanding of
crime prevention and criminal justice and provide more support for anti-crime
measures which are genuine and not merely a palliative for public cries
for law and order," the London based human rights body cautioned.
Essentially, the argument that re imposing the death penalty may deter
people from resorting to violent crimes has no substantive basis, as was
found by a Commission on Capital Punishment instituted in Sri Lanka in
the late 1950s.
Indeed, this argument loses much of its force with countries such as
South Africa and Russia virtually outlawing the death penalty in spite
of having some of the most violent crime rates in the world. In 1995 for
example, a decision of the South African Constitutional Court declared
the death penalty to be incompatible with the prohibition of 'cruel, inhuman
and degrading treatment' under the country's interim constitution. The
judgement had the effect of abolishing the death penalty for murder.
Meanwhile, in Russia, President Boris Yeltsin early this month, signed
a decree commuting the last death sentence in the country to a prison term,
emptying death row and in effect eliminating capital punishment.
For Sri Lanka to consider re-introducing the death penalty in the face
of developments to this effect in the rest of the world is assuredly not
wise. What is needed is a more serious study into all the aspects of the
problem of rising criminality in the country to implement wide ranging
reforms to our criminal justice system, including the streamlining of police
investigation procedures. In the absence of such an effort, capital punishment
can only amount to a particularly unsavoury plaster over a continually
festering wound.
Strong govt. only solution to mess
By Kumbakarana
This is an era in which the world sees constitutional
changes as the panacea for all the vicissitudes of the state. But today
there is no meaning in this, because the state that exists today is different
to the one which existed several decades ago. The majority of politicians
and the so-called intelligentsia belong to the 1960 era. They do not understand
the state as it would exist in the new millennium.
They keep on repeating that "Tamil grievances" will be remedied
once they receive the legal protection of constitutional changes. In this
context one should take a look at the transformation which has overtaken
the state.
Political experts generally categorise the Executive and the Judiciary
as inter-connected under the Constitution. This is only an academic idea.
The more modern interpretation is that the state is a collective entity
which represents capital, ideology and the military machine. Be that as
it may, the modern creed is that the state is withering away.
First, what has happened today is that the state's right to decision-
making has "devolved" upon global institutions such as the World
Bank and the IMF. In addition, the recent events in Iraq and Yugoslavia
show that the rights of the state over security have been partly usurped
by the UN and organisations like NATO.
Second, the state is further eroded due to regional organisations. Sri
Lanka faces this challenge due to the impact of organisations like SAARC
and SAPTA.
Third, the identity of the state is further diminished by the globalisation
of capital and a global commercial culture. We have seen this happening
quite clearly in Sri Lanka in the last two decades.
Fourth the state is further weekened under pressure from separatism, terrorism
and the impact of various civilizations. Not only is there globalisation
of capital but there is also free transfer of technology and free movement
of arms and armaments. As a result, not only has the state become incapable
of eliminating these forces, it has sometimes to give away part of its
territory to separatists.
The impact of civilizations is different to the situation. Civilizations
whose origin are fundamentally Islamic, Judaic and Christian have become
ever more complex. Accordingly Filipino Catholics receive the support of
French Catholics and Filipino Muslims receive the support of the Saudis
and other Middle Eastern countries. In Sri Lanka too various religious
groups receive support from abroad from their co-religionists.
Therefore, there is every likelihood that the Buddhists would seek support
from the Buddhists of North India, Indo-China and East Asia. This is already
happening among the Hindus, Christians and the Muslims. The cumulative
impact of all of this is the further erosion of the state of Sri Lanka.
Fifth, the bureaucracy erodes the power of the state. Already powers belonging
to the political centre have been devolved to Provincial Councils and Pradeshiya
Sabhas and passed on further into the hands of the central bureaucracy.
The result of the so-called devolution of power to the periphery has been
that the bureaucracy has got bloated and increased immensely in power and
overtaken the political power of the state.
For example, the transfer of teachers was the responsibility of at least
three officials before the PCs came into being. Now, the number of officials
has increased to 13. Those who talk glibly about making life more simple
and convenient for the general public in official matters are only increasing
the power of the bureaucracy.
In addition, members of various political parties too fall into the
grip of the bureaucracy. Every party member becomes the prisoner of party
leaders or the General Secretaries in the Executive Council.
Sixthly, in the private sector, entrepreneurial groups, NGOs, voluntary
organisations and media associations have snatched a significant proportion
of responsibilities from the state. In addition, the organised criminal
underworld ingratiates itself into this situation. Not only are these organisations
not subject to the writ of the state, but they also try to manipulate the
state.
When you look at this lot, it is clear the power of the state has fallen
into the grip of certain local and foreign organisations and private gangs.
In this connection we must specifically mention the so-called Tamil
"grievances". (This was an invention of the leftists about a
"Peeditha" Tamil community and now, only Thondaman voices this
view. The so-called 'grievances' of the Tamils have been transmogrified
into what is called the 'aspirations' of the Tamil community).
The myth called Tamil "grievances", in fact refers to the
economic, social and majoritarian political power conferred on the Tamil
community by the British as a gift has now gone and vanished forever.
On the other hand if the Tamils are asking for solutions for their 'Grievances'
from the government (if indeed they exist), it is counter productive. Why?
Because the Sri Lanka government is unable to solve not only the grievances
of the Tamils, but also of the Sinhalese and Muslims as well, in matters
of employment, land, education etc. because the powers of state is being
eroded.
The private sector has been glorified as the 'engine of growth' by both
the UNP and the SLFP. Under such a system there is no greater absurdity
and one more frightening than trying to solve Tamil grievances by constitutional
changes. It will only go to prove what Prabhakaran says: That the Tamil
problem cannot be solved by constitutional means.
On the other hand the Tamils and Muslims have begun to understand this.
Instead of waiting for the government to provide them with jobs, land etc.
they are using their own assets to obtain these requirements.
The current settlement of Tamils in the city of Colombo and their previous
settlement in the Wanni and in Maduru Oya are other such examples. But
both the government and the national Sinhala movement have not realised
this.
However, it is imperative to strengthen the weakened state. This is
not possible by constitutional and cultural slogans alone as in 1956 and
1972 . Nor can it be achieved by opening up the process of government as
in 1977 . It can be achieved only by establishing a powerful government
with a powerful national movement within the system of globalised capital
and commercial culture.
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