Say No to the alugosuwa!

Featured image courtesy the Huffington Post

by Reeza Hameed - on 12/02/2015

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 members belief that capital punishment is the solution
tothe increasing anti-social and violent activities. 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 governments 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.
Public opinion
A frequent justification provided by governments for retaining the death
penalty is 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 countrys 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 Wickremesinghe 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
Bentleys 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 Bentleys conviction, and found
Lord Goddard to have prevented a fair trial. Derek Bentleys 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 any occasions had passed the death sentence and
also given 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?
Oscar Wilde, describing the execution of a prisoner he had witnessed in the
Reading gaol, wrote that:
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
poemThe 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 days work
And everything went well or do they
Stay off some topics and talk about
The weather
It has been said that a hangman had to have steely nerves and a good
stomach. Albert Pierrepont, at one time Her Majestys Chief Executioner,
was advised by his uncle: If you cant do it without whisky, dont do it at
all. Albert Pierrepont holds a special place in the hangmans hall of fame. A
scion of the Pierrepont dynasty of hangmen there had been other
dynasties before his, such as the Billingtons Alberts father and uncle had
been the Kings 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 reexamined 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 Commissions
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 parents 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 everymurderera 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 courts 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 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
Wickremesinghe 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 Fonsekas statement in Sri Lankas
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 Commissions 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
theMakwanyane 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 Commissions 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.
Retribution
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 societys
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.
Discriminatory
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 processWe 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,
Final remarks
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 judgement 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 itand the death penaltymust 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.
Posted by Thavam