|Ills of Criminal Justice
System vs Death Penalty
The issue of the death
penalty has surfaced again this week. Newly appointed Justice
Minister Milinda Moragoda publicly stated that his personal view
was that a re-introduction of capital punishment in Sri Lanka
would benefit the administration of law, order and justice in
this country. The minister is reportedly due to discuss this
with President Mahinda Rajapaksa shortly.
The death penalty has always been controversial, not only in
countries such as ours, but also in the developed world. In Sri
Lanka, its enforcement has been a moral dilemma, as well as a
politically contentious issue.
Introduced to the country by the British, capital punishment
was retained after Independence. However, it was abolished in
the “revolution” of 1956, ushered in by then newly elected Prime
Minister S.W.R.D. Bandaranaike, only to be re-introduced,
ironically, in the aftermath of Bandaranaike’s assassination.
It stayed that way for nearly two decades, until the advent
of the ‘Dharmishta’ society proclaimed by J.R. Jayewardene in
1977. Under the 1978 Constitution introduced by JR, capital
punishment was retained in the statutes, but its actual
implementation required the agreement of the Trial Judge handing
the sentence, the Attorney General, the Minister of Justice and
the President himself. In effect, this put an end to carrying
out the death penalty. Thus, the last execution in this country
has been carried out some 33-years ago, in June 1976.
It was during the tenure of President Chandrika Kumaratunga
that the issue emerged again. In 1999, in response to a wave of
crimes, Kumaratunga stated that capital punishment would be
reinstated. What really happened though was that the previous
practice of commuting the death penalty to life imprisonment was
discarded. Therefore, the number of prisoners on death row
Yet another change came about in 2004, when High Court Judge
Sarath Ambepitiya was gunned down outside his residence.
Kumaratunga declared the death penalty will be reactivated and,
in legal terms, this has been done, but again, capital
punishment has not been implemented yet.
The Justice Ministry stated this week that there were 273
prisoners on death row, and with the recent spate of triple
murders, the abduction and rape of school children and armed
robberies, this number can only increase.
There is a school of thought that reintroducing capital
punishment - with death sentences in fact being carried out -
would reverse this trend towards crime. Simple logic would tend
to support this hypothesis. However, this must be placed in the
context of the entirety of our criminal justice system, and not
viewed in isolation.
Statistics revealed by the authorities in this regard are
shocking indeed. About 1.5% of our population is in prison and
this, in comparison to other countries, is apparently quite
high. The prisons hold some 30,000 prisoners, when they are
equipped to incarcerate only 10,000, and among them, over half
are involved in drug related offences, directly or indirectly. A
significant number of prisoners are in jail simply because they
cannot furnish bail.
These are by no means impressive statistics. They only paint
a gloomy picture of the way the law works in this country, and
how some exploit legal loopholes, while others stand to be
exploited by the law.
Moreover, we were recently regaled with stories of how
prisoners have spawned a culture of their own in the jails they
inhabit. Apparently, the very prison system that is supposed to
rehabilitate them has been transformed into a network of
organised crime: we had the tragicomic scenario of prisoners
masterminding an extortion racket from jail with the use of
mobile phones, and demanding a ransom from the Governor of the
Western Province for good measure!
We also know that this culture of crime is patronised in a
big way by politicians, so much so that, there is an unholy
symbiosis between the local politician and the regional gang
leader. The politician needs the gangster to ensure his election
victory; thereafter, it is payback time, with criminals
extracting their dues. As a result, the vicious cycle of crime
Re-introducing the death penalty will almost always be a
deterrent to serious crimes, and will probably help in subduing
the current crime wave we are witnessing. Nevertheless, it is
not a magic wand that could be waved for all the ills of our
criminal justice system to disappear overnight.
The newly appointed Minister of Justice has his work cut out
in trying to fashion improvements in this system. The delay in
administering justice is in itself a huge problem, and the axiom
that justice delayed is justice denied holds true for many in
We had the former Chief Justice heralding the dawn of a new
era in the administration of justice in Sri Lanka. In
particular, he practised a brand of judicial activism that
pushed the boundaries of the judicial system. His critics would
argue that he encroached on areas that would have otherwise been
dealt with by the executive or the judiciary. Nevertheless, it
was a worthwhile experiment, and we note that our judicial
system has changed for the better as a result.
A similar shift of paradigms in the administration of justice
in criminal matters is a necessity for our nation.
Re-introducing the death penalty may take us towards that goal,
but much more needs to be done, if we are to get there. In that
sense, to die or not to die is not the simple answer that we are
searching for, to make Sri Lanka a better, safer place to live