07 February 2013

This way to the guillotine, ladies and gentlemen, do not be shy…

D.M. Samanchandra, A.M. Hemananda and J.Y. Kamalendra were names known only to their near and dear, and perhaps those wronged by them.  They have certain things in common. They are all inmates of Bogambara Prison.  All three are on death row.  All of them have been waiting to be hanged for about 10 years now.  All three managed to get on top of the prison.  All three of them demanded that they be hanged, asap. 

Now it is reported that the sudden death-wish was prompted by failed expectations about an Independence Day pardon that would commute sentence to life imprisonment. That’s another matter.  The issue is death.  Death Sentence. Legal murder.  So let’s start with it.

There was time, sure; a time best not forgotten, a time when death was the name of the imperious knock on your door at midnight, was the wind that would stir the circles of fire that lit the street corner, was the ripple that lapped on the terminated dream that floated down the river, was the scream of silence that mocked the acquiescent intellect, was the first, last and only lesson that was taught in the classroom of youth, was the ink that protested gravity and flew from the newspapers in horror, was the light in a lover's eyes at the hurried parting, and was the memory of a mother with an infant at her breast. It was a wordless certificate that young people carried in their pockets as they stood their ground, shoulder to shoulder, on the picket line, as they went from door to door seeking the mustard seed of human dignity.
I would think that legislative writ is unnecessary in a socio-economic system that has the power to construct policies that nurture malnourishment, drive desperate people to suicide and allows people to kill with impunity. But what exactly was this piece of paper? This is how the late Mr. Baratha Lakshman Premachandra read it some years ago: "That, with a view to building a law-abiding, just, and civilised society, this parliament is of the opinion that steps should be taken to re-implement capital punishment (gallows) which remains ineffective though imposed at present by the court."

There is a lot to say about "justice", "civilisation" and "showing deference to the law". Laws are nothing but mechanisms set in place by people to suit their ends. Thus slavery was once legal. In fact it is still "legal", only it has another name: slave-owners have got smarter and have expanded their vocabulary, that's all. The justice of the law-maker is not always the justice of the citizen. If that was the case, the thugs who forced their way into parliament would have been shown the door out immediately.
Civilisation? Yes, some of that would be good. How about several units of that particular brand of ambrosia for our parliamentary deities first?

One line seemed to have dominated the debate in parliament: "heinous crimes have escalated since the deterrent of hanging was removed". These words have been blurted out more or less verbatim by others who have come out strongly in favour of the death penalty in the newspapers.
How much of the trespasses can be traced to the "compelling" fact of the death penalty not being enforced? After the last legal murder in 1976, did all social factors that can reasonably be assumed to have some impact on the incidence of bloody violence, freeze? (I hasten to add that there are types of violence that are not outwardly bloody, but which nevertheless produce the same horror and the same sorrow for the victims and their loved ones). Did nothing happen in the intervening 24 years other than murderers being condemned to die and then their sentences being softened to life imprisonment and to eventual release?

Surely, the Ukussas, the Kalu Balallu, the Kola Koti, the Yellow Cats, the PRRA and other gangs operated not so much with the comfort of knowing that whatever happens they will not have to hang but with the clear assurance that they will never have to even appear in court? They knew that they had the full power of the executive, the legislature and the judiciary behind them and that any citizen, especially the bereaved, who was foolish enough to complain, could be bought, threatened or, more conveniently, done away with.
Profit had a lot to do with the mad rush to acquire as much territory as possible by whatever means at one's disposal. Hanging onto power, destroying dissent, reducing the democratic space to the dot that is to follow the definitive one-word description of that time, "Bheeshanaya" must have had some impact, surely? The implication of the said motion is that none of these things counted. Clearly the mention of the directive "Examine the root causes!" ought to have generated that critical level of doubt to stop the hang-hang-hang monologue

Let us consider the purported merits of legal murder. It is said that capital punishment will serve as a deterrent. To deter, is to restrain or discourage (from acting or proceeding) by generating fear of the consequences of such actions. Let us talk about frightening people.
I can think of no period in our recent history where sentiments such as fear and terror dominated the psyche of society as during the time-best-not-forgotten alluded to above. To a society which lived through a time when violent death was a possibility between the intake of breath and a resigned sigh, to an individual whose wakeful hours are soggy with the anxious waiting for the next item of bad news proclaiming another one of the many losses he/she has to suffer, to a people who have been encircled by the possibility of falling victim to a bomb, the pain of death dangled above their heads painted with the two words "death" and "penalty" would indeed sound rather mild. Quite apart from the summary dismissal of considering the particular historical setting in which this motion was tabled, there are two things that need to be discussed with respect to the idea that the death penalty deters the potential criminal from executing the horrendous strategy that has captured his/her resolve.

One, the idea that the average murderer, when he/she awakens on the morning of the crime, has already decided on the eventuality of the victim's death. How can capital punishment intimidate a person who, right up to the point of committing the murder, has not decided on the event? In most actions there is a degree of passion. And actions that are particularly violent such as those which cause physical injury or death, are naturally coated with a greater degree of passionate fire.
This is where capital punishment fails to contain the desire to terminate a person's life or the will to injure. Camus agreed with Bacon: "no passion is so weak that it cannot confront and master the fear of death". He points out that vengeance, love, honour, grief, even fear of something else, are all victorious over the fear of death in one circumstance or another. The hired assassin, who can be assumed to be calculating and methodical in his/her trade, is moved by the incentive of remuneration, and I cannot convince myself that the promise of money or other form of payment has no basis in passion.

Why should the freedom fighter who kills an enemy soldier fear the pronouncement of a judge who defends a law which he/she views as oppressive and therefore is not inclined to respect or protect? Why should a jealous husband who feels he has been wronged beyond the capacity of his heart to endure be scared of being sentenced to die when he no longer wants to live?
The murderer fears death only after the judge announces the sentence. Seldom before. In most cases the murderer acquits himself/herself of guilt before the murder is even perpetrated. If it is not possible to verify if potential murderers are made to think twice before they kill someone by the fact that capital punishment is a possibility that he/she might confront at a later date, how can anyone justify it by saying it is an effective deterrent?

There is a second point that needs to be discussed regarding the deterrent argument: appropriate publicity for the legal murder. If it is intended to be an instrument to prevent future murders by striking fear into the hearts of potential murderers, then it is logical that their senses be flooded with the images of the ultimate price they would have to pay for their possible infraction of the law. Instead of the executioner carrying out his/her work in a musty room hidden in the labyrinth of the prison, there should be public executions.
Galle Face Green comes to mind. Or the parliament, where the law-makers can have the satisfaction of witnessing how well they are protecting their constituencies. Everything must be given the widest coverage possible in the media, with experts at hand to offer comments, including the prosecutor who argued for the death penalty, the judge who pronounced the sentence, the Commissioner of Prisons, the jailers who did the rounds, the doctor who has to issue the death certificate, the priest who has to hurry along the terrified victim into the vast unknown, and the executioner who extracts his/her life. All of us are potential murderers, otherwise the deterrent argument doesn't hold. Therefore none of us can plead squeamishness in this matter. That is if we really believe in this deterrent poppycock.

We are left with just one other possible justification. Revenge, or the idea that an eye has to be extracted for the eye that was taken in the first place. Someone who participated in the debate whose name escapes me now, quoting Cicero said: "Let the punishment match the crime". Camus has the apt response: "No crime, however heinous, can equal the meticulously planned butchery that is the death penalty." He makes the pertinent point with respect to the inapplicability of the law of retaliation: "It is as excessive to punish the pyromaniac by setting his house on fire as it is insufficient to punish a thief by deducting from his bank account a sum equivalent to the amount he has stolen".
The worst murders, according to the law, are not those that are perpetrated in self-defense or due to insanity or in the heat of a moment of passion, but those that are planned well in advance. It is then paradoxical that the death penalty outdoes all planned murders by way of premeditation.

For there to be any semblance of justice as in the "eye-for-an-eye" mode, Camus argues, "the murderer being executed should have fore-warned his victim of his/her impending demise, and thereafter keep the victim for a certain period of time, months or years, reflecting on the event from which there is no escape."
Camus asks us to consider a murderer who having fore-warned his victim of the murder several months ahead, arrives, ties him/her up securely, informs that death will occur at such and such an hour, then uses this time to set up the apparatus of death. What criminal, Camus asks, has ever reduced his victim to a condition so desperate, so hopeless and so powerless?

If it is not revenge but protection for the rest of society that is sought, the answer is simple: hold the convicted person in prison where he/she cannot harm the general public.
There is another dimension. The death penalty is not about cleansing society as its advocates proclaim from their moral high horse. It is the setting up of an apparatus that will allow the state to offer such human sacrifices as it deems necessary to protect and strengthen the ruling ideology and its beneficiaries. This is why Socrates was made to consume hemlock, Madduma Bandara had his head severed, Ethel and Julius Rosenberg hanged in the USA, 60,000 people had to die under the operating laws of the land in the late eighties, and probably why Mumia Abu-Jamal, a black radio-journalist in Philadelphia, USA was convicted of murder predominantly white jury and sentenced to die by a white judge known for hanging black people. We all know the story of the Pied Piper.  More recently, September 23, 2011 to be precise, Troy Davis, a US citizen and a black man, wrongfully sentenced over the killing of a police officer in 1989, was executed by way of a lethal injection.

The death penalty stands separate from the entire spectrum of possible punishment for the simple reason that once executed, the facility of revoking the decision dies with the victim. No clemency can be granted. If new facts emerge to prove the innocence of the person punished, it is not going to be possible to get away by apologising profusely, offering compensation and setting the person free. No can resurrect the dead.
Furthermore, to insist that someone is so wicked that he/she should be completely removed from the rest of society forever is to imply that society is fundamentally good and virtuous. Is there anyone among us who can stand up and defend such a claim? No one can keep up the guard every moment of the day. No institution is perfect in the distribution of justice, least of all the capitalist state. Therefore it is absolutely fundamental that we aspire to create some space which allows us to repair what wrong we might do through ignorance and arrogance.

We can only conclude with Camus that once it is legislated definitively to bring to pass the irreparable, all those responsible by raising their hands and all those guilty of being silent, open themselves to suffer the unending accusation of the eyes of endless time. Are we, as individuals and as a society, ready for this? I am not.



Rifkha said...

This is one of your best articles.

Lasitha Yasanga Herath said...

Excellent article, great insights!

Anonymous said...

Once the matter of setting standards for punishing the most horrific of crimes (presumably as means of discouraging future peril to society and as ‘justice’), it could be quite possible to achieve an intensive system of efficient rehabilitation to ensure ‘safety’ of society. It may involve intricate contributions of architecture, faith and psychology.