Following the attack on the APS, Pakistan removed the moratorium on the death penalty. The hangman Albert Pierrepont said capital punishment is “a primitive desire for revenge”. This post looks at the case of Sri Lanka.
There has been an organised move to bring back the hangman and implement the death penalty in Sri Lanka. Several weeks ago, Colombo District MP Hirunika Premachandra presented in Parliament an adjournment motion for the revival of capital punishment in Sri Lanka. She said that once the motion went through Parliament she would request President Maithripala Sirisena and the government to consider bringing back capital punishment. The motion seems to have been grounded in the member’s belief that capital punishment is the solution to the increasing anti-social and violent activities within the country. An adjournment motion does not end in a vote but some members of the government supported the motion while others spoke against it. In the course of the debate, the Minister of Justice made a statement in the House, confirming the government’s intention to sign the UN moratorium in November 2016. Subsequent to his statement in Parliament, the Minister was reported to have said that the moratorium on the penalty will continue but it will not be abolished.
The death penalty is a cruel, inhuman or degrading form of punishment and it should be eliminated from the statute books. It is pre-meditated killing by the state. Curiously, even before the fair member had tabled her motion in Parliament, the Prison Commissioner had advertised the vacancies for the post of hangman and refurbished the gallows at the Welikade Prison. In the vernacular, a hangman is referred to as vadhaka, commonly known as ‘alugosuwa’, a word which is of Portuguese origin (algoz). The main criteria for selection as alugosuwa were that applicants shall be five feet and four inches in height, psychologically and physically fit and they should pass a medical test. The Commissioner had advertised the job as involving “light administrative work only”, and hired two out of the fourteen applicants who had attended the interview. Previous attempts at recruitment ended up in the alugosuwa doing the bunk.
A frequent justification provided by governments for retaining the death penalty is that it is demanded by the public. For instance, the Indian Law Commission in its 1967 report considered public opinion as an important factor in retaining the death penalty but in its most recent report on the subject, the Law Commission has recognised that it is not necessary for the government to follow public opinion on every issue, stating that the Government “has a duty to drive public opinion towards options which support fairness, dignity and justice, which are constitutionally enshrined ideals.”
As was said by Mohan Gopal, an Indian academic, the public will always demand the highest punishment provided in a legal system, regardless of what it is. “If the highest punishment allowed by the law were to be imprisonment for life, then most members of the public are likely to be satisfied with that punishment being given to those convicted of the most gruesome crimes.”
The government ought to lead public opinion against deeply entrenched cultural norms when faced with issues concerning human dignity and equality. The government cannot bring back slavery merely because a majority of the country’s population are in favour of slavery. Likewise, governments do not frame fiscal policy based on the views of the majority in the country. In a comprehensive statement of the Civil Rights Movement of 31 August 2009, Suriya Wickremasinghe underlined the importance of weighing the pros and cons of the death penalty, and pointed out that this is an issue on which public opinion can be fickle.
In the South African case of Makanyane, the Attorney General argued that ideas about what is cruel, inhuman or degrading are, to a large extent, shaped by contemporary attitudes within society, and that in South African society the death sentence for extreme cases of murder was not regarded as a cruel, inhuman or degrading form of punishment. The South African Supreme Court rebuffed this argument stating that the question it had to decide was “not what the majority of South Africans believe a proper sentence for murder should be. It is whether the Constitution allows the sentence.” Public opinion, although it might have some relevance to the enquiry, cannot be decisive. “If public opinion were to be decisive there would be no need for constitutional adjudication.”
The Court explained that certain fundamental rights such as the right to life cannot be made to depend on the outcome of public opinion.” The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to shield them from the reach of majorities and officials and to establish them as legal principles to be applied by the courts.
Hanging is a sordid business
Hanging is a sordid business. Lord Goddard, who presided over Derek Bentley’s trial in the UK, harboured very strong views in favour of capital punishment and did not believe that the act of killing could have any mitigating circumstances. Strangely, according to his clerk, Lord Goddard wet his trousers each time he passed the death sentence and kept an extra pair of trousers at hand on such occasions. Derek Bentley, who was convicted by Lord Goddard, received a posthumous pardon following a finding long after his execution that he had been wrongly convicted. Many years later, an appeal court over-turned Bentley’s conviction, and found Lord Goddard to have prevented a fair trial. Derek Bentley’s counsel told the appeal court that Lord Goddard had been blatantly prejudiced and his summing up to the jury left them with little option but to convict Bentley.
Lord Denning, who on many occasions had passed the death sentence and also gave evidence before a Royal Commission for its retention, changed his mind years later. To him, it was an ethical and not a legal question. He asked: “Is it right that we, as a society, should do a thing – hang a man – which none of us individually would be prepared to do, or even witness?”
Three yards of chord and a sliding board,
Are all the gallows need
So with rope of shame the herald came
To do the secret deed.
Carl Sandburg, the American poet, poses the following question in his poem “The Hangman at Home”:
WHAT does the hangman think about
When he goes home at night from work?
When he sits down with his wife and
Children for a cup of coffee and a
Plate of ham and eggs, do they ask
Him if it was a good day’s work
And everything went well or do they
Stay off some topics and talk about
It has been said that a hangman had to have steely nerves and a good stomach. Albert Pierrepont, at one time Her Majesty’s Chief Executioner, was advised by his uncle: “If you can’t do it without whisky, don’t do it at all.” Albert Pierrepont holds a special place in the hangman’s hall of fame. A ‘scion’ of the Pierrepont dynasty of hangmen – there had been other dynasties before his, such as the Billingtons – Albert’s father and uncle had been the King’s executioners. They took pride in what they did although they did it on the side.
Albert wished to follow in their footsteps after he had read the diaries of the executions which his uncle had meticulously kept. He spoke of his efforts to fine tune the process of hanging to make it quicker and efficient, but ticking off a few seconds out of the time it took to kill a man could not have removed the cruelty out of hanging.
Some years ago, when the Sri Lanka prison department advertised for a hangman, nearly 200 had applied. The notice was carried only in a Sinhalese newspaper. No detailed job description was given in the notice but women were excluded. Many of the applicants who turned up at the interview made a quick exit when the duties associated with the job were made clear to them. Two hangmen who were hired in 2013 failed to show up for work. Another hangman who was hired in 2014 did the bunk after he saw the gallows for the first time.
The hangman must have a good brain for maths, too. For a start, it is crucial to get the length of the rope right and have the noose in the right position. It is difficult to get the neck to break instantly; it would require the hangman to accurately work out the ratio between the length of the rope and the weight of the prisoner he needs to hang. The drop has to be right to bring about a quick death. If the drop is too short, it would cause the victim to slowly suffocate to death or, if too long, it would result in his decapitation.
Many countries have given up the death penalty
Death by hanging was introduced in Sri Lanka during colonial times. Sri Lanka has not carried out an execution since 1976 although capital punishment remains in the statute books. According to reports, there are more than one thousand prisoners on death row, including many who are going through the appeal process.
The last execution in the United Kingdom took place in 1964. In 1999, the death penalty was removed for all crimes following the ratifications of the European Convention on Human Rights and the Second Optional Protocol to the ICCPR.
The Maldives have not executed anyone since the 1950s. Since 2004, India has had a moratorium on executions, although three persons have been executed since November 2012. By 1967, only 12 countries had abolished capital punishment for all crimes in all circumstances. Today, 140 countries have abolished the death penalty in law or in practice.
In its latest report on the death penalty, the Indian Law Commission has re-examined its own previous recommendations made in 1967 to retain the penalty and has now recommended its abolition except in terror-related cases. The Commission has concluded that the socio-economic and cultural conditions in India, which had influenced the Commission’s recommendations in 1967, have changed. In exempting terror related offences from its recommendation to abolish the death penalty the Indian Law Commission went against its own logic and experience.
Russia is a signatory to the UN moratorium resolution and has resisted calls for its restoration for the reason that the death penalty was not the best choice for dealing with terrorism. A Russian lawmaker has rightly observed: “For terrorists, it is often an honour to die while carrying out an attack. Therefore, they can actually consider execution as a good thing.” In 2013 a proposal to execute convicted terrorists, paedophiles and people who involve children in illegal drug use was rejected by the Duma.
UN on death penalty
Capital punishment has been regulated in international human rights treaties as an aspect of the right to life, as guaranteed in the International Covenant on Civil and Political Rights (ICCPR). The ICCPR was adopted by the General Assembly of the United Nations on 16th December, 1966 and entered into force on 23rd March, 1976.
Article 6 of the ICCPR provides that “nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.”
Member States which signed up to the Second Optional Protocol to the ICCPR adopted in 1989 by the UN General Assembly have agreed not to execute anyone within their jurisdictions. In 2007, the UN General Assembly called on states to “progressively restrict the use of the death penalty,” and “establish a moratorium on executions with a view to abolishing the death penalty.” The resolution has been reinforced by subsequent resolutions in 2008, 2010, 2012, and 2014.
Sri Lanka acceded to the ICCPR on 11th June, 1980 but is yet to sign up to the Second Protocol. The ICCPR Act No 56 of 2007 was enacted by the Sri Lankan Parliament to give effect to certain articles of the ICCPR relating to human rights which had not been given recognition through legislative measures. However, the death penalty continues to remain in the statute books and express reference to it is made in the constitution. The death penalty is one of the punishments which can be imposed under the provisions of the Penal Code.
Article 12 (4) of the Constitution states that “[n]o person shall be punished with death or imprisonment except by order of a competent court, made in accordance with procedure established by law.” This despite the guarantee given in Article 11 that “[n]o person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The death penalty is a cruel, inhuman and degrading punishment.
The constitutional prohibition of cruel, inhuman or degrading punishment would extend not only to the imposition of the death penalty but also to its implementation. One can never be certain that, in its implementation, the punishment would be humane. The Indian Supreme Court had to deal with this issue, and made a post mortem obligatory after every hanging stating that “making post mortem obligatory will ensure just, fair and reasonable procedure of execution of death sentence.” A post mortem would assist in discovering whether the person died as a result of the dislocation of the cervical vertebrate or by strangulation but it will not prevent the prisoner suffering a painful and brutal death.
Sri Lanka has signed up to the moratorium proposed by the UN General Assembly and voted for it when it came up regularly before the UN every other year, but abstained both in 2012 and 2014. The moratorium has been in respect of the carrying out, and not the imposition, of the death sentence, which are converted to terms of imprisonment. Notwithstanding the insurgency and civil war, the moratorium has been in place even though the courts have been imposing the penalty. In 2014 alone, over 61 people have been sentenced to death, including juveniles.
The UN Human Rights Council, in resolution passed in 2013, acknowledged “the negative impact of a parent’s death sentence and his or her execution on his or her children,” urged “States to provide those children with the protection and assistance they may require,” and called upon a study to be made on this issue.
Problems about definition
Perhaps the most straightforward argument for the death penalty is that it saves innocent lives by preventing convicted murderers from killing again. One commentator has recently floated the idea that the death penalty is a deterrent “at least to those criminals who committed the crime as they will no longer be available to commit crimes.” Not only does this proposition assume that every murderer is likely to kill again, but it also implies that the only way to prevent repeat killing, for example, would be execute every murderer—a policy that is politically and morally indefensible.
This raises the question: what crimes should be made capital? Any law requiring the imposition of the death penalty could not rest on an uncertain basis. It would need to define, with the utmost precision, the class of case in which it may be imposed as the penalty, and whether it is the only penalty or simply the maximum penalty available to the judge.
The Indian Supreme Court in Bachan Singh ruled: “A real and abiding concern for the dignity of human life postulates resistance to taking a life. That ought not to be done save in the rarest of rare cases.” The Indian Supreme Court itself has questioned whether it is possible to apply this test in a principled and consistent manner. In the Bariyar case, the Supreme Court noted the lack of uniformity in the court’s approach in imposing the death penalty and that it has been affirming or refusing to affirm the penalty without laying down any legal principle.
In a case decided in 2013, the Supreme Court acknowledged that uniform standards were not being applied by the judiciary and the executive when dealing with those convicted of capital offences. In its consultation paper on the death penalty, the Indian Law Commission observed:
In recent years, the Supreme Court has admitted that the question of death penalty is not free from the subjective element and is sometimes unduly influenced by public opinion. In this context, it is imperative that a deeper study be conducted to highlight whether the process of awarding capital sentence is fraught with subjectivity and caprice.
In England, the Gowers Commission of 1954 (see here) concluded that there was no satisfactory way to distinguish between capital and non-capital murder. William Whitelaw, the Home Secretary, arguing against the restoration of the death penalty in the House of Commons, recognised that the application of the death penalty raised very difficult issues of principle and practice, and highlighted the anomalies that arose in which the issues of life and death could not properly be resolved. Do we, for example, hang a burglar who, in a panic, kills someone who disturbs him but let off a woman who slowly poisons her ill- treating husband to death?
Does the death penalty deter?
The deterrence element of a punishment has as its aim the prevention of offending by using the fear or threat of punishment. As was said by the Federal Constitutional Court of Germany, “Respect for human dignity especially requires the prohibition of cruel, inhuman, and degrading punishments. [The state] cannot turn the offender into an object of crime prevention to the detriment of his constitutionally protected right to social worth and respect.
The death sentence, it has been argued, meets the sentencing requirements for extreme cases of murder more effectively than any other sentence and that it has a greater deterrent effect than life imprisonment. The fallacy in this proposition is that it is not the severity of punishment that deters crime but certainty of detection and punishment. Suriya Wickremasinghe pointed out, in an article she wrote in the Ministry of Justice magazine, that people support or oppose the death penalty for different reasons. She cited Susanta de Fonseka’s statement in Sri Lanka’s colonial legislature in 1936:
Sir, is it not likely that murders are on the increase today because … people realise that the chances of detection are small and that the chances of conviction are even less? No, Sir, what is wanted is not severity of punishment: what is wanted is certainty of detection, certainty of punishment.
The Indian Supreme Court has been divided in its opinion as to the deterrent value of the death sentence. In Bachan Singh, the Indian Supreme Court observed that the death penalty served as a greater deterrent than life imprisonment. In other cases, the Court has refused to acknowledge deterrence as the primary justification for imposition of the death penalty, or doubted the efficacy of deterrence itself. These doubts have now been put to rest by the Indian Law Commission’s finding that there is no special deterrence value in the death penalty. The Indian Law commission in its recent report concluded that there has been a decline in the murder rate despite a corresponding decline in the rate of executions, thus raising questions about whether the death penalty has any greater deterrent effect than life imprisonment.
Chief Justice Chaskalson of the Supreme Court of South Africa, in the Makwanyane case, dismissed the argument based on deterrence stating that it has not been shown that the death sentence would be materially more effective to deter or prevent murder than the alternative sentence of life imprisonment. It is worth quoting his words. He said:
The greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished. It is that which is presently lacking in our criminal justice system; and it is at this level and through addressing the causes of crime that the State must seek to combat lawlessness.
He also said that, under the Constitution, retribution cannot be accorded the same weight as the right to life and dignity:
In the debate as to the deterrent effect of the death sentence, the issue is sometimes dealt with as if the choice to be made is between the death sentence and the murder going unpunished. That is of course not so. The choice to be made is between putting the criminal to death and subjecting the criminal to the severe punishment of a long term of imprisonment which, in an appropriate case, could be a sentence of life imprisonment.
Law is brought into disrepute if the justice system is ineffective and criminals are not punished. But if the justice system is effective and criminals are apprehended, brought to trial and in serious cases subjected to severe sentences, the law will not fall into disrepute.
The major assumption of the deterrence theory is that potential offenders make rational decisions before they embark on criminal adventure, that they are risk-averse and not risk-seeking. It assumes that potential offenders pause to conduct an analysis of the consequences of their conduct before or while committing the crime, calculating the death penalty as a serious and important cost. It ignores the fact that a large number of crimes are committed in a fit of rage or anger, or when the offender is clinically depressed, or is motivated out of strong emotions such as revenge or paranoia.
In 1958, the S W R D Bandaranaike government appointed a Commission, which was headed by Professor Norval Morris and included Professor T Nadaraja and Sir Edwin Wijeyratne as its members, to review the issue of capital punishment. The Commission’s conclusion was that the majority of murders in Ceylon, and elsewhere, were impulse killings, and, even in the case of pre-meditated murders, there was no evidence that a person who would be deterred by capital punishment would not be equally deterred by the prospect of prolonged imprisonment.
After his retirement, Albert Pierrepont publicly expressed his views against capital punishment, which he described as “a primitive desire for revenge”. He believed that most of the people he had executed had killed in the heat of the moment, and that capital punishment did not act as a deterrent.
That, indeed, is one of the objections against death penalty. Many murders are committed in a moment of madness without sufficient thought, if any, being given to the consequences of the crime. Even a calculating criminal with a pre-meditated plan to kill might not be deterred because he would probably think of himself as clever and capable of avoiding the consequences of his actions.
Advocates of the death penalty argue that it meets the need for retribution demanded by society to respond to high levels of crime. The retribution element of punishment is justified on the basis that it shows society’s revulsion to the offence and to punish the offender for his wrongful conduct. However, retribution is not an acceptable basis of punishment.
The purpose of punishment should be to reform an offender and rehabilitate him. The Indian Supreme Court in a recent case said that “retribution has no Constitutional value in our largest democratic country.”
Justice Bhagwati of the Indian Supreme Court in a dissenting opinion he gave in a challenge to the death penalty regarded the death penalty as arbitrary, discriminatory and capricious. He said that death penalty is, in its actual operation, “discriminatory, for it strikes mostly against the poor and deprived sections of the community and the rich and the affluent usually escape, from its clutches.”
Miscarriages of justice
There are other objections to the death penalty. It is imposed following a process that is fallible and cannot be reversed. There have been many cases in which justice had miscarried. The courts and the justice system often get it wrong and there is a serious likelihood that the wrong man would be sent to the gallows.
In 1950, Timothy Evans, a man of low intelligence, was convicted by an English court of killing his wife and his infant daughter and sentenced to death. Evans signed separate confessions after being questioned by detectives, who knew that he suffered from learning difficulties. Three years later, the infamous John Christie confessed to the killing. Evans was posthumously pardoned but he remained dead.
Miscarriages of justice may be uncovered many years after the event. Derek Bentley was hanged in 1953 for the killing of a policeman. He was mentally backward and made confessions to the police but it was subsequently proved that his confessions had been edited by Police. It was only in 1998, following a review of his case, that his conviction was declared unsafe as Bentley did not get a fair trial because the trial judge had misdirected the jury and summed up unfairly for a conviction.
UN Secretary General Ban Ki Moon said of the death penalty:
The taking of life is too absolute, too irreversible, for one human being to inflict on another, even when backed by legal process … We have a duty to prevent innocent people from paying the ultimate price for miscarriages of justice. The most sensible way is to end the death penalty.
The unarticulated rationale of the death penalty is that the person on whom it is inflicted is unworthy of living. Justice Blackmun of the US Supreme Court, in a dissenting judgment opposing the death penalty, said he was optimistic that the Court:
eventually will conclude that the effort to eliminate arbitrariness while preserving fairness in the infliction of [death] is so plainly doomed to failure that it—and the death penalty—must be abandoned altogether. I may not live to see that day, but I have faith that eventually it will arrive.
There is no jurisprudential justification for retaining the death penalty in the statute books after making the commitment to adhere to the UN moratorium, which has as its ultimate objective the abolition of the penalty.
The very first precept of the panchasila prohibits the taking of any life. On the subject of killing, the Dhammapada exhorts:
Everyone fears punishment; everyone fears death, just as you do. Therefore do not kill or cause to kill.
*Dr Reeza Hameed is an Attorney-at-Law and this article has been published on Pakistan Horizon with permission and thanks. See earlier posts by Dr Hameed on important constitutional issues here, here, here and here. Links by Editor.