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We shouldn’t be the judge

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Some die young and some live long.  Some die from natural causes, some from unfortunate accidents.  Some are murdered.  Let us consider a hypothetical case of a young girl, who was battered and strangled to death at the age of 19.  Let’s assume this gruesome murder was committed about 10 years ago. 

Let us now assume a different sequence of events.  Let us assume that nine years and 10 months someone decided to incarcerate a young boy.  At first he is not told what his fate would be.  His movements are strictly restricted, that’s all. A year later he is told that he would remain so restricted for the next 12 years and made to do hard labor to boot.  Six years after this decision was conveyed to him, let’s assume he is told that at some point that he would be killed.  Moreover, he is informed of the manner of killing.  Further restrictions are placed on him. 

How many deaths in the first instance, how many in the second, would anyone care to answer?  What is the weight of premeditation in the first case and what of the second?  If the second was punishment for the perpetration of the first, are we all ok and can we move on because ‘justice has been served’?

Now let’s move from fiction to fact.  Almost 10 years ago, i.e. in the early hours of July 2, 2005, a young girl was indeed murdered.  Nothing hypothetical about it.  Yvonne Jonsson was battered and strangled to death.  A young man by the name of Shermantha Jahamaha was arrested, tried and convicted.  The account above, of incarceration, is the story of Shermantha Jayamaha.  Nothing hypothetical about it.   

There is premeditation and there is premeditation.  If the law and justice is about punishment that fits crime, eye-for-an-eye and such, then the premeditation that is associated with the intended legal murder of Jayamaha outweighs whatever premeditation the courts decided was associated with the murder of Yvonne Jonsson.  That much is obvious. 

The argument is old.  It is 58 years old in fact.  Anyone who has read Albert Camus’ excellent essay ‘Reflections on the Guillotine’ would find it hard to approve or defend capital punishment.  The arguments of the death penalty being a deterrent, being moral and righteous, and especially (as related to the above case) being an equal extract for extract perpetrated are systematically and convincingly dismantled by Camus in that essay, first published in the ‘Evergreen Review’ in 1957. 

Let’s dwell a while on premeditation.  No murderer puts his/her victim through the kinds of torture that a condemned person is put through, legally, by the state, Camus argues. He asks, moreover, ‘which murderer tells his/her victim the date and time of death, offers elaboration on the method of execution, and subjects the victim to the torture of being held captive with little chance of the decision being overturned in a confined space? No premeditated murder can match the premeditation that the state imposes on a person, slammed, with the penalty of death.’
In this case, however, in addition to the general academic and moral interest in arguments for and against, there is a lot of material that makes for comment on issues of law and justice and moreover the issue of a convict’s right to appeal. 

As things stand Sharmantha Jayamaha is to be hanged for the murder of Yvonne Jonsson on July 1, 2005, barring a presidential pardon.  But that was a later conviction.  He was first found guilt under Section 297 of the Penal Code and convicted for Culpable Homicide not amounting to Murder.  He was sentenced to 12 years rigorous imprisonment together with a fine of Rs 300,000 and a default sentence of 3 years, to run consecutively. 
 
The Attorney General appealed the determination of the High Court.  The Court of Appeal set aside the High Court conviction and convicted Jahamaha for Murder under Section 296 of the Penal Code.  Jayamaha was sentenced to death.  This was the first time in the history of the Court that an appellant was found guilty of murder and sentenced to death in the Court of Appeal.  
Moves to overturn this decision were rejected by the Supreme Court.  The refusal was based on the ground that ‘there was no point of law of exceptional importance to be considered’.  But then again is the issue only about a point of law?  Does it not include the matter of discovering fact and of interpreting such findings as there could be?   In effect the statutory right of the convicted to appeal conviction by raising issues of both law and fact, as would have been the case if the conviction was in the High Court where the petition could be submitted to the Court of Appeal, was denied.  The unimpeachable right of a single appeal enshrined in Sections 331, 335 and 336 of the Criminal Procedure Code and Section 14 of the Judicature Act appear to have been denied Jayamaha. 

The Indian Constitution, for example provides what the Sri Lankan one does not vide ‘An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of the High Court [Article 134(1)]’ and this covers situations where ‘an appeal reverses an order of acquittal of an accused person and sentenced him to death’. 

Jayamaha, as things stand, will be the first person sentenced to death who did not have the right to even a single appeal of conviction and sentence.  He is condemned to be hanged without any court reviewing the said conviction and sentence.  

Counsel for the convict have made several points pertaining to evidence relevant to this case especially since the conviction was based largely on circumstantial evidence.  Some are pertinent in the establishment or otherwise of evidence.  Some are procedural issues. 

No injuries or any other incriminating factors were found on the Petitioner on examination of the Judicial Medical Officer.  The CID Chief investigating officer’s suspicions regarding the Petitioner had greatly diminished, and so informed his superior. The CID obtained fingerprints of the Petitioner without obtaining an order of the Magistrate and thereafter proceeded to the scene of the crime. The fingerprints were not signed by the person who had obtained them. The label of the fingerprint had slightly rolled up and was replaced by WM Abeyratne. The first statement made by the main witness Caroline Johnson to the police was not available at the trial. Foreign substance- hair found on the dead body of the deceased and was not identified.  Fingerprints observed on the dead body were not revealed in evidence.  The last person to see the deceased alive Kwan not available to give evidence. Time of death not established, since the time of the last meal was not established. Leggings that the deceased was wearing used as ligature for the strangulation not examined for DNA. Other two fingerprints found at the scene of the crime not identified or produced.

The Court of Appeal in all its wisdom determined however that the above facts notwithstanding Jayamaha, in the interest of justice, needs to be hanged.  In that premeditated way described above, let us add.  If he is indeed hanged and if greater wisdom descends that suggests for example that capital punishment is morally indefensible or simply that hanging is way out of proportion to the crime that Jayamaha had committed or worse if it was found that he was guilty only of assault, that there was no intention to kill and that it was someone else who had murdered the unfortunate victim, what then?  An aggregation of all sentiments of justice and fair play, the moral need to redress wrong and the constitutional safeguards ensuring this, will still be insufficient to reverse that eventuality.  He would be dead, simply. 

Gandhi said, famously, “an eye for an eye makes the whole world blind”.  He was wrong. The world was and is blind, and that’s why it keeps gouging out eyes and gouging out other eyes to compensation for inflicted/suffered myopia.  This needs to be reiterated until such time that better judgment empowers law makers and law enforcers.  It might be too late for Jayamaha and others. 


Yvonne Jonsson died young.  It was a tragic death.  A murder.  She did nothing to deserve such a fate.  Something inside her parents, sister, other relatives, friends and loved ones died that day, we can assume.  Those deaths will remain with them. 

Shermantha Jayamaha has not been hanged yet.  And yet, he has been killed many times already.  He was murdered long before the first conviction and long before the second conviction.  He is murdered ‘in absentia’ so to speak on account of denying his the basic single right to appeal his conviction.    His first ‘hangmen’ were those in the media.  We killed that young boy, as a tribe we should acknowledge. 

Consider the following from a reputed English Sunday paper:

‘Sheila Anthony, a domestic aide was the first to see the body of Yvonne. She told the inquest that she found the body in a pool of blood on the 19th floor.

‘“I took the stairs and when I reached the 19th floor I saw a female body that seemed bent into two lying in a pool of blood. It looked like the body of a girl. I got such a shock that I fell and rolled down the staircase all the way down to the 16th floor.”’

The lady would have had to roll down one flight of steps, ‘turn’ at the landing and turn thus several times to end up on the 16th floor.  This, let us remember, is one of the ‘milder’ of the many ‘judgments’ pronounced by the media in the weeks following the murder.  Feel free to extrapolate.  The determination(s) came long before the courts deliberated.  The media wanted him hanged (officially) so they hanged him.  In our eyes, there were no shadows of doubt.  An eye had been extracted and we extracted an eye in return.  We then picked the rest of his corporeality (so to speak) as vultures do. 

When the Court of Appeal announced its sentence, Jayamaha was put on Death Row.  By this time he had written notes that went into three 200-page exercise books.  The law confiscated these.  Small price compared to the ultimate price that the law deems he should pay for crimes the law determined he is guilty of, sure. 

Are we so good and pure that we can judge and deliver justice in the manner we have, one wonders.  If we couldn’t sleep well after that blameless young girl was cruelly snatched from our midst 10 years ago almost to the day, would we sleep better if Shermantha Jayamaha dies his final death at our hands, we have to ask ourselves. 

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