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Capital punishment and the reality driving agitation for its restoration

Capital punishment to resolve the breakdown in the rule of law

The absolute lunacy displayed in the spontaneous campaign to restore the death penalty in Sri Lanka, while it is mind-boggling, is understandable.

The contradictions within the arguments advanced are astounding but, again, understandable.  What is driving the fury is the sense of frustration of a public justifiably upset by a total lack of law and order and seeking a means of venting their spleen in a manner that will provide results, no matter how short-term or ephemeral.

The Sri Lankan reality is of a complete break down in the maintenance of law and order and a disappearance of the rule of law.  Neither of these is some exotic concept that even a relatively unsophisticated public might not understand and want.  However, the catch here is the fact that the public has been bludgeoned and brutalised into a mind-set that treats the rule of law, as we have understood it for a very long time, as some exotic concept.  If we can’t effect the change that is needed, the next best thing is to lash out and blow off steam by going to an extreme that will relieve the pressure if not provide a solution.

Review of letters to the editors of newspapers in any country in the world subsequent to a reporting of some particularly horrendous crime will show the same pattern: an outburst of indignation accompanied by suggestions of what form of cruelty may be visited upon the miscreants in order to exact appropriate revenge.  While there is no gainsaying that this does help to blow off steam, it does nothing to prevent a recurrence of the cruelty that provoked such sentiments.

Low conviction rate

What is additionally ironical in the Sri Lankan context is the fact that this expressed need for harsher and yet harsher punishment is in a context where the conviction rate of accused do not even enter the double-digit area.  In fact, convictions are said to amount to about 5% of prosecutions launched.  When one factors in the reality that a very large number of prosecutions are not even launched once a politician flexes his or her muscle, the number of criminals sentenced would drop to a level that could accurately be described as ‘infinitesimal.’

Therefore, the arithmetic of those calling for the re-imposition of the death penalty does not add up.  You are only going to remove a tiny fraction of murderers from society if you bring back the death penalty.  Therefore, even assuming the deterrent effect of capital punishment – something disproved with absolute consistency over many years past – it won’t work.

If this is the mathematical reality what on earth is the purpose of   bringing back the hangman (or lethal injection or what have you), because if you don’t have convictions, you can’t have executions.  End of story.

The factors that must be addressed in Sri Lanka are very different.

Political interference

The fact that there is political interference in the area of capital crimes up to and including murder cases against politicians being “frozen” indefinitely (or not even instituted), has to be addressed in this context.  This is the tip of an iceberg of perversion of the law.  The submerged part of this iceberg is that, by the same token, innocent people could well be falsely accused (and convicted) of crimes they did not commit.  This is particularly so in a context when all the normal legal processes that we have taken for granted, seemingly forever, have been suspended, including that cornerstone of modern jurisprudence, habeas corpus.

In this situation, extra-judicial executions by those who used to be called the “custodians of the law” makes this scenario even more frightening.  Give this some thought, my friends.  This is not just “bleeding-heart chatter.”  This is the here-and-now reality of Sri Lanka.

A lawyer friend of mine, now alas no longer among the living, gave me a piece of advice when I was nonchalant in seeking his advice to deal with an attempt at a blatant frame-up.  He said, “Never assume that because you are innocent, you will be found not guilty.”  This piece of advice becomes particularly appropriate given the status quo in Sri Lanka.

A corollary of the disappearance of the right to be treated as innocent until proven guilty is the fact that one’s right to a good defence is directly related to the ability to retain good legal counsel.  And a good legal defence costs money.  And if you don’t have money, lots of it, you are going to be out of luck in the matter of proving your innocence.  The simple reality attached to this is that poor people don’t have money and will, therefore, be denied justice and could pay the ultimate price for their poverty. 

At an advantage

The other side of that coin, very visible in Sri Lanka today, is the fact that those who have lots of money are underworld figures and politicians, both of whom would be at a distinct advantage in the matter of escaping capital or any other punishment for reasons that have nothing to do with justice.

An interesting sidebar to all of this is what appears to be the matter of extra-judicial executions, something the general public appeared to have little problem with until the Angulana executions.  Now all hell has broken loose but the unfortunate reality here is that the central issue around the Angulana killings has not been addressed: extra-judicial punishment meted out by those who were, supposedly, the “custodians of the law.”  That is the real problem: a break-down in the administration of the law, not a few “rogue” policemen committing heinous crimes.

To respond to violence, abhorrent crimes and the like by exacting a tooth for a tooth and an eye for an eye will, as Mahatma Gandhi once said, do little other than make us all blind.  A return to the rule of law, re-establishing a regimen of law and order, is not only the best way to deal with an escalating major crime wave, It Is The Only Way.









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