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 increased steadily.

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 is perpetuated.
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 this country.

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 in.