The need to move forward from the present death sentence implementation procedure

Death sentences are imposed by the High Courts of Sri Lanka. It may be after a trial before a High Court Judge or before a seven-member jury or in some instances before a specially-arranged Trial-at-Bar where the trial takes place before three High Court Judges.

Trials are conducted under well-established procedure of law and based on well-designed law of evidence. Rights of the accused are protected by numerous procedural and substantial laws including specially-enacted laws such as International Covenant on Civil and Political Rights Act, No. 56 of 2007. The accused even get free legal representation in the High Court, if they so elect, at the cost of Government.

Those convicted to death by a High Court will have two opportunities of appeals. The first opportunity is to appeal to the Court of Appeal where the appeal will be heard by at least by two Judges of the Court of Appeal. Secondly, the accused can go before Supreme Court against the Court of Appeal decision which will be heard by three Judges of the Supreme Court.

If it is a death sentence imposed by a Trial-at-Bar, the accused has a right of appeal directly to the Supreme Court where the appeal would be heard by five judges of the Supreme Court.

Despite thorough scrutiny of law and evidence by eminent and independent judges at different levels of judiciary, the execution of death sentence has been finally left to the President of Sri Lanka by the Constitution of Sri Lanka as well as by the Code of Criminal Procedure Act No. 15 of 1979. 

Section 285 (1) of the Code of Criminal Procedure Act provides that the President has to decide the date and place of execution of the death sentence. Section 286 (b) read with Article No. 34 of the Constitution requires the President to consider three reports before making a decision as to whether he orders the execution of the death sentence or not.  

After conviction, the High Court Judge needs to send a report to President who is then required to forward it to the Attorney General with instruction for his advice. The Attorney General is then required to study that report and forward a report to President with his advice. The President is then required to forward the said report to the Minister of Justice for Recommendation. The President, upon receiving a report from the Minister of Justice with recommendation, needs to make a decision about the execution of the death sentence and forward an Order to the High Court. 

The above system appears to be so cumbersome and time consuming that as a result the general public is unaware as to how many convicted cases with death sentence have gone through this process. All that is apparent is that no one has been executed in this country for the last four decades despite the gradual rise of crimes.

Whenever a brutal crime receives nation-wide publicity, the topic of death sentence and execution come in for public discussion and dry down eventually. Non-implementing of the death sentence has in a way lowered the faith of the general public in the criminal justice system in the country. Most of the accused who face trials and who are convicted for death sentence often do not take it as a serious matter because of the undeclared moratorium of death sentence in Sri Lanka.

Rather than letting or tasking the President of the country to sign death warrants for each and every conviction throughout the country, we should move forward by introducing a system of automatic implementation of death sentence, with the President’s power to pardon on desired cases. 

The current system of calling for a report from the High Court Judge seems meaningless and irrational as the High Court will convict the accused and impose a death sentence only on the strong evidence placed at the trial without any doubt, which we call that the case has to be proved “beyond reasonable doubt”. 

Calling for a report from the Attorney General is also seemingly baseless as it is the Attorney General who initially decides on the available evidence as to whether an indictment should forward to High Court against the accused, and it is the Attorney General who prosecutes the case in trial and defends the conviction at the appeal.

In its longstanding trading in the Attorney General’s Department, the Attorney General or his officers would never justify an unfair conviction but always assist Court to arrive a just decision. A report from the Minister of Justice, except for political reasons, would be no use in deciding the execution of death sentence. 

The law has to be changed by amending section 284, 285 of the Code of Criminal Procedure Act and Article 34 of the Constitution. Amendments have to be brought to have the death sentence executed on a specific date after a dismissal of appeal. For example, the Commissioner General of Prison shall be made required to execute the death sentence on the 90th day at dawn at Welikada Prison from the dismissal of appeal.

If the accused has made no appeal against the conviction or has withdrawn the appeal, a provision needs to introduced, like in the Singapore system, for the Attorney General to file a Petition of Confirmation, thereby having the trial brief being scrutinised by two Judges of the Court of Appeal and decided within three months. In that event, the death execution can be carried out on the 90th day from such decision of the Court of Appeal, if the conviction is affirmed. 

As a country, if we are able to change the law or introduce a new system of execution of the death sentence, we will have to live with the present burden and recurrent cost due to death row prisoners and their continuous crimes, said to be committed even from the prison cell.  

Section 285 (1) When a person is sentenced to death the sentence shall direct that he be hanged by the neck till he is dead on a day and at a place decided upon by the President.

Section 286. With regard to sentences of death the following provisions shall take effect:

(a) after sentence has been pronounced a warrant shall be made out and signed by the Judge who passed the sentence or by his colleague or successor in office for the commitment of the person sentenced to the custody of the superintendent of a prison. Every such warrant shall be addressed to the superintendent of the prison in which the convict is to be kept pending execution of sentence and the provisions of section 290 shall apply to every such warrant:

(b) so soon as conveniently may be after sentence of death has been pronounced the Judge of the High Court who presided at the trial or in case of his absence or inability his colleague or successor in office shall forward to the President the notes of evidence made by the Judge at the trial with a report in writing signed by him setting out his opinion whether there are any and what reasons why the sentence of death should or should not be carried out;

(c) the President after considering the said report shall inform the High Court of any order he may have made thereon ;

(d) the President may order a respite of the execution of the warrant or appoint a date and time and place for its execution ;

Article 34. (1) The President may in the case of any offender convicted of any offence in any court within the Republic of Sri Lanka – 

(a) grant a pardon, either free or subject to lawful conditions;

(b) grant any respite, either indefinite for such period as the President may think fit, of the execution of any sentence passed on such offender;  

(c) substitute a less severe form of punishment for any punishment imposed on such offender ; or

(d) remit the whole or any part of any punishment imposed or of any penalty or forfeiture otherwise due to the Republic on account of such offence: 

Provided that where any offender shall have been condemned to suffer death by the sentence of any court, the President shall cause a report to be made to him by the Judge who tried the case and shall forward such report to the Attorney-General with instructions that after the Attorney-General has advised thereon, the report shall be sent together with the Attorney-General’s advice to the Minister in charge of the subject of Justice, who shall forward the report with his recommendation to the President. 

(2) The President may in the case of any person who is or has become subject to any disqualification specified in paragraph (d), (e), (f), (g) or (h) of Article 89 or sub-paragraph (g) of Paragraph (1) of Article 91-(a) grant a pardon, either free or subject to lawful conditions; or (b)reduce the period of such disqualification. 

(3) When any offence has been committed for which the offender may be tried within the Republic of Sri Lanka, the President may grant a pardon to any accomplice in such offence who shall give such information as shall lead to the conviction of the principal offender or of any one of such principal offenders, if more than one.

In Singapore, cases having a charge with a death sentence are heard by a single judge in the High Court. After conviction and sentencing, the sentenced has one appeal to the Court of Appeal. If the accused does not appeal or withdraws the appeal, then the Public Prosecutor should lodge a Petition for Confirmation, by which Court of Appeal will examine the record of proceedings and the grounds of decision and shall satisfy itself as to the correctness, legality and propriety of the conviction and sentence. If the appeal fails, the final recourse rests with the President, who has the power to grant clemency on the advice of the Cabinet. 

When the President receives a petition for clemency, he requests the judges who tried the case to make reports on the case to him. The President then forwards these reports to the Attorney-General (AG) and instructs the AG to send these reports, together with the AG’s opinion on them, to the Cabinet. This is so as to allow the Cabinet to advise the President whether the offender should be granted clemency. Since 1965, the President’s clemency has been granted only on seven occasions. 

In India, executing a death sentence is a relatively long process which might take a decade. After handing down the death sentence by the trial court which is called a session court, the accused has two appeal opportunities to the High Court and then to the Supreme Court. If the accused fails in both, he can still forward a mercy petition via the Governor, Home Ministry to the President. The President of India finally decides about it under constitutional clemency powers. Death execution will not be implemented until a reply from the President comes for the mercy petition.  

In Japan, after the conviction in the trial Court, the accused has the right to appeal to the High Court and then to Supreme Court which will be heard by three judges and five judgments, respectively. According to the Japanese Code of Criminal Procedure, the death penalty must be executed within six months after the failure of the prisoner’s final appeal upon an order from the Minister of Justice. However, the period requesting retrial or pardon is exempt from this regulation. Therefore, in practice, the typical stay on death row is between five and seven years.

The Minister of Justice can pardon a convicted prisoner. The execution warrant is signed by the Minister of Justice after internal consultations within the Justice Ministry. Once the final approval is signed, the execution will take place within five business days.

(The writer is an Attorney-at-Law)