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SC stays implementation of death penalty till October 30

Supreme Court of Sri Lanka 700 01
Supreme Court on Friday issued an interim order staying the implementation of the death penalty until October 30.

The three-member Supreme Court Bench comprising Justices Buwaneka Aluvihare, Prasanna Jayawardena and Gamini Amarasekara made the order.

Court granted the interim relief prayed for in (i) and (ii) of the prayer in the Petition filed by a prisoner who is currently on death row.

Court made the Order after hearing submissions made by Deputy Solicitor General Nerin Pulle and President’s Counsel M.A.Sumanthiran appearing for the petitioner.

The State's Deputy Solicitor General, Nerin Pulle, appearing for the Attorney General, said in court that the death penalty is a punishment punishable by Sri Lankan law. Therefore, he argued that the President's directive does not violate fundamental rights.
President's Counsel Sumanthiran appealed to the Court to issue an interim injunction preventing the implementation of the relevant sentence which violates the fundamental rights guaranteed under the Constitution.

He submitted that the last execution under the death penalty was carried out in 1976, at a time when the foregoing 1972 Constitution was still in effect. Under the 1972 Constitution, there was no provision similar to Article 11 of the present 1978 Constitution (no person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment). The fundamental rights under Articles 10 and 11 are non- derogable / absolute.

He cited the Supreme Court’s decision on SC FR 479/2009 decided on 23.10.2018, stating that in that case the Court had repeatedly reiterated the inviolability of Article 11. and pleaded that Court accords a ‘preferred position’ to Article 11 over and above all other provisions in the Fundamental Rights Chapter of the Constitution.

He pleaded that capital punishment does not exist in the law of the land as it stands today. No death warrants have been signed by a Head of State since the enactment of the 1978 Constitution.

He submitted that times have changed and society has become more civilized. Society has progressed from a by-gone era when the death penalty was imposed for the cutting down of trees, and for the killing of deer. Sri Lanka has maintained a moratorium on the death penalty, and countries ought to move towards complete abolition, and not go backwards.

He argued that the President is further in violation of Article 12(1) of the Constitution (all persons are equal before the law and are entitled to the equal protection of the law) when he decided to select just four prisoners out of the many hundreds currently on death row (over 1400 prisoners).

He cited an Indian judgment where the judges had held that the death penalty is handed down only in the ‘rarest of rare’ cases and submitted that judges in Sri Lanka have, for the last 43 years, only handed down the death penalty with the firm knowledge that such sentence would not actually be effected. Judges of the High Court would be more conscious in deciding whether to impose the death penalty if they were aware of the possibility that the sentence would in fact be given effect. The Court has, in the past, read in the Right to Life into Articles 11 and 13, as bereft of this basic right, the others would have no meaning.

He submitted that 43 years of non-implementation of the death penalty was not just mere non-implementation, but was the policy of the Government. Such Government policy is subject to the direction and control of the Cabinet of Ministers, of which the President is just one member. The Government of Sri Lanka had given undertakings to the international community to continue the moratorium on the death penalty.

He urged the Court to draw its attention to the fact that the Code of Criminal Procedure enacted in 1979 only charged the Superintendent of Prisons with the safe custody of prisoner’s who had been given the death penalty, whereas the previous Code of Criminal Procedure has provided for the fiscal to carry out the executions. On this basis, the law does not, in fact, make provision for executions to be effected.

President’s Counsel M.A. Sumanthiran with Pulasthi Hewamanna instructed by Gowry Shangary Thavarasha appeared for the Petitioner.

Deputy Solicitor General Nerin Pulle appeared for Attorney General.

 

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