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Numerous defects in local legal system could lead to wrongful murder convictions

10 Nov 2021

By Ruwan Laknath Jayakody Defects inherent in the Sri Lankan legal system that could lead to wrongful convictions for murder are manifold, a forensic pathologist noted. These include wrongful indictment for murder; the murder suspect not being adequately represented by counsel; the non-representation of the accused by lawyers in certain types of murder cases, thus leading to the provision of a State defender by the court; the failure of defence counsels and judges to seek second opinions in respect of medical and scientific evidence which are of a dubious nature; the failure to obtain a report from a psychiatrist as to the mental state of the accused at the time of committing the murder; judicial errors on the part of judges; and perverted jury verdicts such as a divided jury verdict (of five to two) where there is reasonable doubt as to whether the verdict is sufficient to sentence a person to death on a murder charge. These observations were noted in an opinion piece on “The need to abolish the death penalty”, authored by retired Colombo Chief Consultant Judicial Medical Officer (JMO) L.B.L. De Alwis and published in the Sri Lanka Journal of Forensic Medicine, Science, and Law 9 (1) in July 2018. The death penalty – or capital punishment, judicial hanging, or sending to the gallows – constitutes the killing of a convict by legal statute. In this situation, De Alwis noted, the Head of State (Executive President) is literally the executioner, as he gives the final order for execution, including the date, time, and place of execution. Hence, the State, as per De Alwis, legalises, solemnises, and sanctifies the act of the termination of a human life. In the Sri Lankan Penal Code as amended, offences for which the death penalty is applicable include murder and conspiracy to murder, abetment of suicide when an individual commits suicide, and the possession of two or more grams of heroin. In Sri Lanka, hanging by the neck is the only mechanism, as per G.K. Pippet’s “A history of the Ceylon Police: 1795-1870”, that is used and implemented to cause death in the judicial setting. De Alwis described the said method as cruel. The Amnesty International organisation too has described the death penalty as “cruel, inhuman, and degrading”, and therefore called for its abolition. The World Medical Association has declared that the death penalty is the ultimate cruel, inhuman, and degrading punishment, as it violates the right to life, and therefore called on governments to immediately and totally abolish the death penalty. De Alwis further explained that there is mental torture for the convict sentenced to death to wait out days, weeks, or months before the date of execution, while there is physical torture experienced during the execution, such as when struggling against pain and death. There is also the mental torture inflicted on the next of kin including the wife, children, and parents, most of whom, according to De Alwis, end up destitute upon the execution of the breadwinner. Does the State who took the life of the prisoner take care of the dependents, De Alwis queried. However, in Sri Lanka, at present, death sentences have not been executed. Most prosecuting counsel, according to De Alwis, believe that society demands accountability from the State for terrible crimes such as murder and that the murderer when convicted for such, forfeits the right to live in that society and that the death penalty is the only mechanism to protect innocent human lives from murderers. De Alwis instead proposed that life imprisonment be given as the sentence to those who commit such crimes deserving of the death penalty. The death penalty as a deterrent for grave crimes such as murder has no support, as research carried by States such as the US, where the death penalty is used as a punishment for murder and implemented using several methods, indicates the negative, as there is, as noted by H.A. Bedau in “The case against the death penalty”, a much higher murder rate. The British Commission on Capital Punishment (M.F. Wingersky’s “Report of the Royal Commission on Capital Punishment [1949-1953]: A review”) too noted the same failure with regard to the capital punishment. Another argument in favour of the implementation of the death penalty is based on retribution where the concept is that evil can be countered through appropriate punishment, which, De Alwis explained, is merely revenge of the Biblical “eye for an eye or a tooth for a tooth” – in this instance, “life for a life”. Such retaliation, De Alwis added, cannot be condoned in modern civilised societies. The legal argument for the abolition of the death penalty concerns the fact that the majority of murders are not premeditated and therefore lacking in criminal intent, and erroneous convictions (approximately 4%, as per S.R. Gross, B. O'Brien, C. Hu, and E.H. Kennedy’s “Rate of false conviction of criminal defendants who are sentenced to death”) due to mistaken identity and false evidence, where the actual murderer becomes a witness or chief witness for the prosecution and in turn results in innocent persons paying with their lives for murders committed by others. It must be noted that while persons convicted of murder and have been sentenced to death have been subsequently exonerated based on DNA evidence (according to the Innocence Project), in Sri Lanka, the question is as to how many murder convicts can have access to DNA technology when they are wrongfully found guilty of murder and sentenced to death. Every human being has a right to life (as enshrined in the Universal Declaration of Human Rights) and the death penalty is clearly in violation of the right to life and the right to live, De Alwis explained. Sri Lanka retains the death penalty in its legal statutes but has not carried out the death penalty as a government policy since 1976. Today, there are nearly 1,000 prisoners on death row, awaiting execution. All of them, De Alwis noted, are at the mercy of the Executive President who decides on the life and death of such convicts. The Morris Commission of Ceylon established in 1958 argued for the abolition of the death penalty, stating that it is totally against the tradition of tolerance and compassion. However, if the death penalty is to be abolished, there must be an alternative to it. In this regard, former British Governor Joseph West Ridgway, commuting the death sentence to life imprisonment, stated: “It compels me to remit the extreme death penalty which would close the door for further inquiring and reparation, should the doubt be confirmed by future revelation.” In the Rome Treaty of 1998, the International Criminal Court has stated that the maximum penalty for even the worst of crimes such as crimes against humanity, murder, genocide, rape, and torture, should be life imprisonment. In Sri Lanka, life imprisonment means rigorous imprisonment for 20 years with hard labour. Such convicts can, however, be released by the Executive President after or before the 20 years is up. Therefore, De Alwis argued that the alternative punishment should be life imprisonment without parole, where within a prison environment, these convicts could undergo counselling, psychiatric treatment if necessary, receive a suitable education, be placed in a religious background of their choice, obtain vocational training, and be rehabilitated in an open prison environment. The United Nations (UN) has also held that sentencing convicted murderers to life imprisonment constitutes sufficient protection for society. It also provides for, De Alwis noted, those who are convicted but later exonerated to be awarded compensation. In conclusion, D. Moldrich notes in “Hangman, spare that noose: A historical and analytical survey of the death penalty with special reference to Sri Lanka” that the universal abolition of the death penalty, the latter of which constitutes a journey of no return to an innocent man convicted, will be a great victory for humanity.


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