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The Supreme Court - Pic by Shehan Gunasekara
By S.S. Selvanayagam
The Supreme Court yesterday issued an Interim Order preventing implementation of the death penalty till 30 October.
The Supreme Court granted Interim Relief directing the Commissioner General of Prisons and the Welikada Prison Superintendent to immediately desist from executing any prisoner consequent to a death warrant signed by the President.
The Bench comprising Justices Buwaneka Aluvihara, Prasanna S. Jayawardena and Gamini Amarasekera also granted another Interim Relief suspending the operation of any and all death warrants signed by the President.
Both Interim Reliefs were granted until 30 October. The matter is fixed for support on 29 October for granting of Leave to Proceed.
Registrar is directed to communicate to the Prison Superintendent. Notices are to be issued to the Respondents within three weeks through the Registrar. A Fundamental Rights Petition was filed impugning the decisions for revival of execution complaining that they are shrouded in secrecy, with utter lack of transparency and accountability, and are arbitrary and in violation of the Constitution. Lawyer Kavindu Hewa Geeganage filed a Fundamental Rights Petition on behalf of condemned prisoner Mohammad Haniffa Praeem Nawas currently detained at Welikada Prison.
The Petitioner cited the Attorney General, Justice and Prison Reforms Minister Thalatha Atukorale, Prisons Commissioner General T.M.J.W. Thennakoon, Welikada Prison Superintendent T.G. Uduwara, Secretary to the President Udaya Ranjith Seneviratne, the Human Rights Commission and Bar Association President Kalinga Indatissa as respondents.
Counsel M.A. Sumanthiran with Pulasthi Hewamanna instructed by Gowry Shangary Thavarasha appeared for the Petitioner. Deputy Solicitor General Nerin Pulle appeared for Attorney General.
Petitioner bemoans the actions and the purported decision to carry out capital punishment/death penalty for the first time since in or around 1976.
Petitioner states the Petitioner is aware that Sri Lanka has had a moratorium on the death penalty at least since 1976, and there has been no capital punishment carried out since then.
He states that after the last execution in 1976, successive Presidents of Sri Lanka have refrained from placing their signatures on the death warrants, without which condemned prisoners cannot be executed in the prisons.
He claims although the Courts of Law sentenced persons to death, successive Presidents have periodically commuted death sentences to life or other terms of imprisonment.
He states that on 6 October 2015, an Adjournment Motion was tabled in Parliament titled ‘Revival of Death Penalty’.
However, immediately thereafter (October 2015) the then Minister of Justice publicly stated that the moratorium on the death penalty would continue, he points out.
Therefore, such was an unambiguous representation and assurance by the State and the Executive that such moratorium would in fact continue, he adds.
On 14 September 2015, the then Minister of Foreign Affairs, addressing the General Debate of the 30th Session of the UN Human Rights Council specifically stated that the Government was committed to “(…) maintain the moratorium on the death penalty with a view to its ultimate abolition,” he underlines.
On 1 January 2016, the Human Rights Commission of Sri Lanka recommended to the President to abolish the death penalty, he states.
He states that in June 2016, the then Minister of Foreign Affairs Mangala Samaraweera and the then Minister of Justice Dr. Wijeyadasa Rajapakshe participated in the International Conference against the Death Penalty (ICPM) in Oslo, Norway and Sri Lanka committed itself to moving forward in the abolitionist process.
Dissuading offending through the fear of punishment has never truly worked, he contends.
He states that attempting to lift the moratorium on death penalty in light of such is manifestly absurd, arbitrary, capricious and irrational and no rational nexus exists between such decision and any purported object thereof.
He states there has recently been an anti-drug overture with the backing of the State, and the President has indicated his wish to reintroduce the imposition of the death penalty.
As per the Prison Statistics, there are approximately 1,600 individuals who have been sentenced to death between 2007 and 2017, he states.
He emphasises that maintaining the moratorium on carrying out the death penalty is vital for Sri Lanka to ensure continued support and collaboration with foreign drug enforcement agencies.
He states there has been no transparency regarding the purported executions to be carried out. He says there is no clarity as to the number of people sentenced to death, the identities or the date(s) of execution.
It was reported that the death sentence was to be carried out on at least 13 prisoners. Thereafter, however, it was reported that the President had signed death warrants for four convicts.
The Commissioner General of Prison is reported to have said that he has not been informed of any decision to carry out executions.
He states the purported haste in carrying out such executions without proper training is arbitrary, irrational, capricious and/or unreasonable and could result in executions causing the condemned prisoner to unnecessarily suffer in pain in the process of execution.
He states that as a convention, prior to the moratorium on the death penalty in Sri Lanka, there was an inveterate practice; a) Of giving 14 days’ notice to the condemned prisoner prior to the imposition of the death penalty; b) Of granting an opportunity to the condemned prisoner to seek clemency; c) Of commuting the death sentence on the recommendations of the Minister of Justice, if either the Trial Judge or the Attorney General recommended that the death sentence should not be carried out.
The Petitioner states that as far back as 1956, after independence, the State suspended the death penalty and when such virtual abolition took place, condemned prisoners on death row had their sentences commuted to life.
Due to the lack of transparency in the process, it is not discernible why some prisoners have their sentences commuted and why some do not, he states.
The purported selection of specific individuals to impose the death penalty/capital punishment, is arbitrary, unreasonable, and made on no identifiable criteria, and without any justifications for the same, he states.
Such amounts to impermissible randomness of such process and such purported selection appears to have been carried out contrary to the law and the Constitution.
He states that to lift the moratorium on the death penalty after holding them in custody in an agony of suspense is tantamount to inhuman punishment.
He states all condemned prisoners currently on death row were issued such sentences at a time when the moratorium on the death penalty was in force.
Romesh de Silva PC, Faisz Musthapha PC, Suren Fernando, Sanjeeva Jayawardena PC, Saliya Peiris PC, Ali Shabry PC and Shaveendra Fernando appeared for the other Petitioners.
