Examining the death penalty

Cabinet this week approved a proposal to amend the Code of Criminal Procedure Act on capital punishment for minors, a move that has been welcomed by activists but also has shone a light on the continuing prevalence of the death penalty in general in Sri Lanka.

While a de facto moratorium on capital punishment in Sri Lanka continues, the country is yet to take steps towards its formal abolition.

Indeed, despite the moratorium, judges continue to pass the death penalty. This is primarily because in Sri Lanka, the death penalty is a mandatory sentence for certain crimes. As a result, even though no prisoner on death row has been executed in the last 45 years, there are at present over 1,200 death row inmates in Sri Lanka. 

On the surface, the argument for the death penalty is a simple one. Crimes and the level of violence in Sri Lanka have undoubtedly increased. Therefore, the death penalty is seen as a deterrent and, in the cases of child abuse, rape and drug trafficking, a worthy form of retribution.

There have been and always will be cases of the executions of innocent people. No matter how developed a justice system is, it will always remain susceptible to human failure. Unlike prison sentences, the death penalty is irreversible and irreparable. Moreover, the death penalty is often used in a disproportional manner against the poor, minorities and members of racial, ethnic, political and religious groups. Sri Lanka, with its already overburdened and poorly resourced legal system, would find it incredibly difficult to ensure that no innocent party gets sentenced to death. Such a legal process would also be time-consuming and expensive so not necessarily a faster path to justice. 

Perhaps the most telling argument of all is that the death penalty violates the right to life, which happens to be the most basic of all human rights. It also violates the right not to be subjected to torture and other cruel, inhumane or degrading treatment or punishment. Furthermore, the death penalty undermines human dignity, which is inherent to every human being.

The death penalty lacks the deterrent effect which is commonly referred to by its advocates. As once stated by the General Assembly of the United Nations: “There is no conclusive evidence of the deterrent value of the death penalty (UNGA Resolution 65/206).” It is noteworthy that in many retentionist states, the effectiveness of the death penalty in order to prevent crime is being seriously questioned by a continuously increasing number of law enforcement professionals.

Public support for the death penalty does not necessarily mean that taking away the life of a human being by the state is right. There are undisputed historical precedents where gross human rights violations have had the support of a majority of the people, but which were condemned vigorously later on. It is the job of leading figures and politicians to underline the incompatibility of capital punishment with human rights and human dignity.

Capital punishment remains in the statute books but implementation was suspended more than 30 years ago. The Government’s current position on hanging is unclear, but increasingly it appears the people are for it. Yet, it cannot be denied that political patronisation, lack of resources, outdated laws and massive backlogs are creating a mockery out of justice far more than the lack of the death penalty. Social attitudes, too, need to change as society is responsible for the creation of criminals as well as rehabilitating them and re-admitting them to public life. Tougher laws should certainly be introduced for offenders but it has to come with an overall overhaul of the entire judicial system of Sri Lanka. The death penalty in and by itself will do little to reduce crime in the present environment.