The diverse profusion of contributions on this subject reminds me of an apocryphal story of a man of Abrahamic faith (Christian/Muslim/Jewish), ship- wrecked on a land unknown to him. He kept wandering, hoping to find human beings but also nervous that they could be of other faiths and could harm him. Before he met any living being he stumbled on the scene of several dead men and women hung from trees in an orderly manner, which, he interpreted as a sign of systematic execution. He went on his knees and thanked the Lord for bringing him to a land of civilised (Abrahamic) faith.
Execution is prescribed in the scriptures of Judaism, Islam and in the case of Christianity in the Old Testament but to my knowledge not in the New Testament. To the best of my knowledge, Hindu, Buddhist and Jain scriptures do not prescribe the death penalty for any crime.
Religious scriptures apart, a very major problem with capital punishment is the possibility of wrongful convictions, of which many cases have been identified in the past. A judge may sentence a person to death if that person is found guilty, in the opinion of the judge, “beyond all reasonable doubt”. This phrase is imprecise and open to subjective interpretation. Some judges have the reputation of being “hanging judges” i.e. those whose threshold of what is “reasonable doubt” may be biased in favour of a death sentence relative to many other judges. In my opinion the only acceptable level of doubt is zero. This may be so in the case of the rape and murder of children including Seya, Vidya and Kavindu mentioned by father J.C.Pieris in his thoughtful contribution titled ‘Listen to the voice of the silenced’.
There may be no extenuating circumstances in these three cases but in many others there are other considerations to be taken into account. For example, in the cases of political assassinations and in the cases of assassination under extreme provocation, there are other facts to be considered. Similarly, there maybe lack of intention to kill. There could also be exceptional cases such as Saul/Paul who was clearly implicated in a lead role in many killings. If the Old Testament rule had been applied, he would have been executed. In the event he was not, and, in the opinion of many Christians, is remembered not as a murderer but possibly the greatest of Christian Saints and Apostles. Many judges would have applied the death penalty in several of these cases including that of Paul. We need to listen and pay consideration to the voices of many other than those of the silenced.
The problem cannot be resolved merely by redefining the requirement for a death sentence. An institutional mechanism is required. For example, the Supreme Court could establish a rule that in every case of a death sentence by a single judge or even a panel of judges, the entire Supreme Court will revisit the case after hearing such evidence and opinions as it thinks fit, and the death sentence should be carried out only if it is endorsed unanimously by the full bench of the Supreme Court. It may be argued that only a tiny fraction of the death sentences will pass this test and that many murderers will get away with lengthy imprisonments. Perhaps, that is as it should be.
Whereas I have focused on my own views on the death penalty with passing references to some landmark Sri Lankan cases, I will conclude by citing two eminent articles that focus on the changing situation in South Africa. The first, by Jack Greenberg who was Director counsel of NAACP Legal Defense and Educational Fund from 1961 to 1984 and went on to become a law professor at Columbia University.
The South African Constitution Court unanimously invalidated capital punishment under its post-apartheid constitution. Rejecting the course taken by the United States Supreme Court, the South African court invoked the Bill of Rights provisions which prohibit “cruel, inhuman and degrading punishment.”
Court President Arthur Chaskalson’s opinion considered aspects of the death penalty: destruction of life and dignity, both guaranteed in the South African Bill of Rights; arbitrariness of application; possibility of error, and the alternative of life imprisonment as severe punishment. When weighing the argument that the death penalty is a greater deterrent to potential criminals than life imprisonment, he referred to American studies demonstrating that this has not been proved. He ruled also that retribution could not be accorded the same weight as the constitutional rights to life and dignity.
President Nelson Mandela’s office endorsed the decision as “sober and humane,” as did the African National Congress and Nobel laureate Bishop Desmond Tutu. How different from the drumbeating for the death penalty that we are accustomed to here. Sounding like an American, F.W. de Klerk, leader of the National Party that governed the country under apartheid, vowed to have the ruling overturned. But South African lawyers who brought the challenge to capital punishment believe he cannot succeed.
In this decision, South Africa had joined most of the world’s democracies. Canada, most of Latin America, all of Western Europe, Australia, New Zealand and Namibia prohibit the death penalty as have the Czech and Slovak republics, Hungary and Romania. Russia retains it virtually only in name: Clemency has revoked the few recent death sentences. A few years ago, the Soviet Union had thousands of executions annually. India, with its population of perhaps a billion, executed three men in recent years.
South Africa’s decision leaves the United States even further isolated. In the 1980s, South Africa executed over 1,100. In 1989, it executed 60 in Pretoria and unknown numbers in the “homelands” before a moratorium went into effect. When the Constitutional Court decision came down, 443 people were on death row; they will now be re-sentenced.
In recent years, the numbers executed in the United States has been in the 30s; in 1995, we may kill more than 40 death row inmates; hundreds more are sentenced each year. As other countries have been abolishing capital punishment, the United States has been revving it up. Bill Clinton advocated and Congress created about 60 new death penalty offenses in the last crime bill; Gov. George Pataki boasts that he signed New York’s new death-penalty law immediately following his election. The United States Supreme Court has relentlessly been making capital sentences more difficult to contest. Moreover, while more than 70 death-penalty countries have abolished it for offenders under 18, the United States, according to Human Rights Watch, “is a world leader in executing juvenile offenders.” (Nine since the death penalty was reinstituted in 1976, four in the last six months of 1993.)
Our Supreme Court has held this not unconstitutional unless discriminatory intent can be demonstrated–an impossible task.
Once, I was optimistic that the death penalty in America was on the way to extinction. South Africa’s humane decision has caused me to contrast it with what has been happening here. I am afraid that until we rid ourselves of the legacy of our own apartheid, we will have to contend with the arbitrary, irrational, racist regime of capital justice we have today.
From an article by Carolyn Hoyle:
South Africa had been renowned for its extensive use of the death penalty. The Society for the Abolition of Capital Punishment in South Africa had been established in 1971, but while apartheid persisted the government had rejected all calls for inquiries into the system.
However, with the release of Nelson Mandela in February 1990 and the beginning of negotiations for constitutional change, the death penalty became one of the touchstones of commitment to a new social order. President F. W. de Klerk announced an immediate moratorium on executions, the last one having taken place on 2 February 1989, and in July 1990 the Criminal Law Amendment Act abolished capital punishment for housebreaking with intent to commit a crime or with aggravating circumstances, and made the death penalty for murder discretionary rather than mandatory.
A tribunal was set up to review death sentences imposed before July 1990 and, as a result, the Minister of Justice announced in 1992 that all executions would continue to be suspended, pending the introduction of a Bill of Rights for the new South Africa.
Despite the fact that the South African Transitional Constitution of 1993 was silent on the matter of whether or not the death penalty was permissible, the Attorney-General, in line with President Mandela’s long-held belief that the death penalty was barbaric, brought a case before the Constitutional Court, arguing that the death penalty should be declared unconstitutional. The Court, in the landmark judgment of The State v T. Makwanyane and M. Mchunu in 1995 decided that capital punishment was incompatible with the prohibition against ‘cruel, inhuman or degrading’ punishment and with a ‘human rights culture’ which made the rights to life and dignity the cornerstone of the Constitution. A further influential argument was that it would be inconsistent with the spirit of reconciliation, post-apartheid.
Thus, despite widespread concern about a tide of violent crime, and strong political pressures to reinstate the death penalty, the South African Parliament endorsed the opinion of Judge Chaskalson, the President of the Constitutional Court, that the way to reduce violence was to create a ‘human rights culture’ which respects human life. In 1997 the Criminal Law Amendment Act removed all references to capital punishment from the statute book.
Despite the fact that political parties such as the Freedom Front Plus, the Christian Democratic Party, and the Pro-Death Penalty Party have argued for reinstatement of capital punishment in South Africa, on the grounds that it is necessary to reduce the country’s very high homicide rate, it is very unlikely that there would be a parliamentary majority for the constitutional amendment that would be necessary. Such is the legacy of Nelson Mandela.
Editor’s Note: Also read “Re-Imposing the Death Penalty” and “Say no to the Alugosuwa!“