Executions and Article 11 of the Constitution

Recently, a large volume of writing has taken place discussing the merits and demerits of executing the death penalty imposed upon prisoners languishing in the country’s jails for committing a variety of capital offences. When I read those comments my mind immediately went back to the note of resignation submitted by Her Majesty’s executioner, Albert Pierrepoint, which he later had included as a preface to his Autobiography. In that note he wrote” I do not believe that anyone of the 400 executions I carried out has in any way acted as a deterrent against future acts of murder. Capital Punishment, in my view, achieved nothing except revenge”.

• The last execution in Sri Lanka took place in 1976
• There was no determination of the constitutional validity of the imposition of capital punishment, under Article 11
• Above all the degree of international criticism to which Sri Lanka may be targeted will not be a suitable proposition to face
• Therefore, it is important that a decision of the Supreme Court is first obtained
• The basic question therefore is, is capital punishment, in keeping with Article 11 of the Constitution?

Aside from any number of ethical, religious or such other reasons for decrying the execution of Capital penalties there is a Constitutional hurdle that one has to leap before legally, a noose is put around the neck of a human being, in Sri Lanka.   

Article 11 of the Sri Lanka’s 1978 Constitution reads: “No person shall be subjected to torture or to cruel inhuman or degrading treatment of punishment”. Those very same words are found in Article 11 of the present South African Constitution.   

In The State vs Makwanyanne and Another,reported at (1995)3 South African Reports at page 391, the two accused were convicted of the offence of Murder, under the South African Penal Code, by a Court sitting in the Province of Witwatersrand. At their conviction they were both sentenced to death. The sentencing judge wrote on the report that the murders they had committed were so gruesome that they do not deserve to be commuted. They both appealed to the South African Court of Appeal, but the hearing was held back until a constitutional issue as to the constitutional validity of capital punishment was determined, by the South African Constitutional Court.  Learned counsel argued that Article 11, of the South African Constitution, which as pointed out earlier was identical with the same Article of our constitution, made capital punishment unconstitutional, it being “cruel, inhuman, or degrading treatment or punishment.  

Last execution

As it is in the Sri Lanka Constitution, what constitutes “cruel, in-human or degrading conduct” has not been defined and that it was up to each court upon a case by case basis to determine, if and when that matter came before them. Therefore, the first question that required to be determined, before any executions takes place, is whether under Article 11 of the Sri Lanka constitution, capital punishment is constitutional? The last execution in Sri Lanka took place in 1976 which was two years prior to the promulgation of the 1978 Constitution. There was no determination of the constitutional validity of the imposition of capital punishment, under Article 11.   
Returning to Makwanyane, the Constitutional Court of South Africa, after examining a very large number of authorities held that Article 11 of their constitution made capital punishment, unconstitutional.   

As for the present trend regarding the abolition of the death penalty, there is a large measure of material which learned counsel in several jurisdictions had utilized

The first question we have to seek answers from our Apex Court is whether under Article 11 of our own Constitution the imposition of capital punishment was valid under Article 11. Unless the answer to that question is first obtained any rush to put into effect a sentence of death may well change the nature and character of that act, from one of a judicial execution to one of an extra judicial act of murder. In such an event a large contingent of persons from the executioner, in the first degree, and other officers as participating in a criminal act may become liable under the Criminal Law and also under the Civil Law for the payment of compensation. Above all the degree of international criticism to which Sri Lanka may be targeted will not be a suitable proposition to face.   

Decision of the Supreme Court

As for the present trend regarding the abolition of the death penalty, there is a large measure of material which learned counsel in several jurisdictions had utilized, and are available for our courts and our learned counsel to consider.. In the Caribbean, the Bahamian and the Courts in other Islands have found against the retention of capital punishment. So have the courts in Africa: Uganda, Malawi and Kenya. In a seminal judgment delivered by the Privy Council in The Attorney General for Belize v Reyes [2002] 2 Appeal Cases 235, the Law Lords, after an extensive perusal of the available law found that sentences of death were unconstitutional where there is in any Constitution, as we have” a fundamental human right to life.   

Therefore, it is important that a decision of the Supreme Court is first obtained, before the State rushes to execute convicts under sentences of death, for whatever offences they may have committed. The basic question therefore is, is capital punishment, in keeping with Article 11 of the Constitution? That question could be answered only by our Apex Court to which resort could be had by anyone of the 19 persons earmarked for execution, or some other interested party, or by His Excellency himself under Article 129 of the Constitution. 

(The writer is a Professor of Law from the University of Windsor)