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| Are we hanging ourselves and are we ok with it if we are? |
Some die young and
some live long. Some die from natural causes, some from unfortunate
accidents. Some are murdered. Let us consider a hypothetical case
of a young girl, who was battered and strangled to death at the age of
19. Let’s assume this gruesome murder was committed about 10 years ago.
Let us now assume a
different sequence of events. Let us assume that nine years and 10 months
someone decided to incarcerate a young boy. At first he is not told what
his fate would be. His movements are strictly restricted, that’s all. A
year later he is told that he would remain so restricted for the next 12 years
and made to do hard labor to boot. Six years after this decision was
conveyed to him, let’s assume he is told that at some point that he would be
killed.
Moreover, he is
informed of the manner of killing. Further restrictions are placed on
him.
How many deaths in the
first instance, how many in the second, would anyone care to answer? What
is the weight of premeditation in the first case and what of the second?
If the second was punishment for the perpetration of the first, are we all ok
and can we move on because ‘justice has been served’?
Now let’s move from
fiction to fact. Almost 10 years ago, i.e. in the early hours of July 2,
2005, a young girl was indeed murdered. Nothing hypothetical about
it. Yvonne Jonsson was battered and strangled to death. A young man
by the name of Shermantha Jahamaha was arrested, tried and convicted. The
account above, of incarceration, is the story of Shermantha Jayamaha.
Nothing hypothetical about it.
Yvonne Jonsson died young. It was a tragic death. A
murder. She did nothing to deserve such a fate. Something inside
her parents, sister, other relatives, friends and loved ones died that day, we
can assume. Those deaths will remain with them.
Shermantha Jayamaha has not been hanged yet. And yet, he has been
killed many times already. He was murdered long before the first
conviction and long before the second conviction. He is murdered ‘in
absentia’ so to speak on account of denying his the basic single right to
appeal his conviction. His first ‘hangmen’ were those in the
media. We killed that young boy, as a tribe we should acknowledge.
Consider the following from a reputed English Sunday paper:
‘Sheila Anthony, a
domestic aide was the first to see the body of Yvonne. She told the inquest
that she found the body in a pool of blood on the 19th floor.
‘“I took the stairs
and when I reached the 19th floor I saw a female body that seemed bent into two
lying in a pool of blood. It looked like the body of a girl. I got such a shock
that I fell and rolled down the staircase all the way down to the 16th floor.”’
The lady would have had to roll down one flight of steps, ‘turn’ at the
landing and turn thus several times to end up on the 16th floor. This,
let us remember, is one of the ‘milder’ of the many ‘judgments’ pronounced by
the media in the weeks following the murder. Feel free to
extrapolate. The determination(s) came long before the courts
deliberated. The media wanted him hanged (officially) so they hanged
him. In our eyes, there were no shadows of doubt. An eye had been
extracted and we extracted an eye in return. We then picked the rest of
his corporeality (so to speak) as vultures do.
When the Court of Appeal announced its sentence, Jayamaha was put on
Death Row. By this time he had written notes that went into three
200-page exercise books. The law confiscated these. Small price
compared to the ultimate price that the law deems he should pay for crimes the
law determined he is guilty of, sure.
Are we so good and pure that we can judge and deliver justice in the
manner we have, one wonders. If we couldn’t sleep well after that
blameless young girl was cruelly snatched from our midst 10 years ago almost to
the day, would we sleep better if Shermantha Jayamaha dies his final death at
our hands, we have to ask ourselves.
We need to ask these things because there is premeditation
and there is premeditation. If the law and justice is about punishment
that fits crime, eye-for-an-eye and such, then the premeditation that is
associated with the intended legal murder of Jayamaha outweighs whatever
premeditation the courts decided was associated with the murder of Yvonne
Jonsson. That much is obvious.
The argument is
old. It is 58 years old in fact. Anyone who has read Albert Camus’
excellent essay ‘Reflections on the Guillotine’ would find it hard to approve
or defend capital punishment. The arguments of the death penalty being a
deterrent, being moral and righteous, and especially (as related to the above
case) being an equal extract for extract perpetrated are systematically and
convincingly dismantled by Camus in that essay, first published in the
‘Evergreen Review’ in 1957.
Let’s dwell a while on
premeditation. No murderer puts his/her victim through the kinds of
torture that a condemned person is put through, legally, by the state, Camus
argues. He asks, moreover, ‘which murderer tells his/her victim the date and
time of death, offers elaboration on the method of execution, and subjects the
victim to the torture of being held captive with little chance of the decision
being overturned in a confined space? No premeditated murder can match the
premeditation that the state imposes on a person, slammed, with the penalty of
death.’
In this case, however,
in addition to the general academic and moral interest in arguments for and
against, there is a lot of material that makes for comment on issues of law and
justice and moreover the issue of a convict’s right to appeal.
As things stand
Sharmantha Jayamaha is to be hanged for the murder of Yvonne Jonsson on July 1,
2005, barring a presidential pardon. But that was a later
conviction. He was first found guilt under Section 297 of the Penal Code
and convicted for Culpable Homicide not amounting to Murder. He was
sentenced to 12 years rigorous imprisonment together with a fine of Rs 300,000
and a default sentence of 3 years, to run consecutively.
The Attorney General
appealed the determination of the High Court. The Court of Appeal set
aside the High Court conviction and convicted Jahamaha for Murder under Section
296 of the Penal Code. Jayamaha was sentenced to death. This was
the first time in the history of the Court that an appellant was found guilty
of murder and sentenced to death in the Court of Appeal.
Moves to overturn this
decision were rejected by the Supreme Court. The refusal was based on the
ground that ‘there was no point of law of exceptional importance to be
considered’. But then again is the issue only about a point of law?
Does it not include the matter of discovering fact and of interpreting such
findings as there could be? In effect the statutory right of the
convicted to appeal conviction by raising issues of both law and fact, as would
have been the case if the conviction was in the High Court where the petition
could be submitted to the Court of Appeal, was denied. The
unimpeachable right of a single appeal enshrined in Sections 331, 335 and 336
of the Criminal Procedure Code and Section 14 of the Judicature Act appear to
have been denied Jayamaha.
The Indian Constitution,
for example provides what the Sri Lankan one does not vide ‘An appeal shall lie
to the Supreme Court from any judgment, final order or sentence in a criminal
proceeding of the High Court [Article 134(1)]’ and this covers situations where
‘an appeal reverses an order of acquittal of an accused person and sentenced
him to death’.
Jayamaha, as things
stand, will be the first person sentenced to death who did not have the right
to even a single appeal of conviction and sentence. He is condemned to be
hanged without any court reviewing the said conviction and sentence.
Counsel for the
convict have made several points pertaining to evidence relevant to this case
especially since the conviction was based largely on circumstantial
evidence. Some are pertinent in the establishment or otherwise of
evidence. Some are procedural issues.
No injuries or any
other incriminating factors were found on the Petitioner on examination of the
Judicial Medical Officer. The CID Chief investigating officer’s
suspicions regarding the Petitioner had greatly diminished, and so informed his
superior. The CID obtained fingerprints of the Petitioner without obtaining an
order of the Magistrate and thereafter proceeded to the scene of the crime. The
fingerprints were not signed by the person who had obtained them. The label of
the fingerprint had slightly rolled up and was replaced by WM Abeyratne. The
first statement made by the main witness Caroline Johnson to the police was not
available at the trial. Foreign substance- hair found on the dead body of the
deceased and was not identified. Fingerprints observed on the dead body
were not revealed in evidence. The last person to see the deceased alive,
Kwan, was not available to give evidence. Time of death not established, since
the time of the last meal was not established. Leggings that the deceased was
wearing used as ligature for the strangulation apparently, were not examined
for DNA. Other two fingerprints found at the scene of the crime not identified
or produced.
The Court of Appeal in
all its wisdom determined however that the above facts notwithstanding
Jayamaha, in the interest of justice, needs to be hanged. In that
premeditated way described above, let us add. If he is indeed hanged and
if greater wisdom descends that suggests for example that capital punishment is
morally indefensible or simply that hanging is way out of proportion to the
crime that Jayamaha had committed or worse if it was found that he was guilty
only of assault, that there was no intention to kill and that it was someone
else who had murdered the unfortunate victim, what then? An aggregation
of all sentiments of justice and fair play, the moral need to redress wrong and
the constitutional safeguards ensuring this, will still be insufficient to
reverse that eventuality. He would be dead, simply.
Related articles:
This way to the guillotine ladies and gentlemen, do not be afraid.
3 comments:
You have considered a specific situation Malinda , just like Kevin Spacey in Life of David Gale - But what punishment do you suggest be given to the killers of that unfortunate Lalanadasa family of Athurugiriya area - the massacre that shocked us as a nation - rapes, mutilations ,horrific killings , don't you believe these killers got what they deserved or do you think the killers now wait in death row suffer more than the victims ? Or the killers of that poor pre-school girl in Batticalaoa had they been tried or for that matter those officers of the Armed forces who killed or gave instructions to kill captured enemy combatants -
Eye of Eye is Abrahamic hardly in tune with this country's Buddhist heritage - but we know how our kings treated wrong doers putting Saudi Arabia to the shame -
On a different note I too share your misgivings on Shramantha;s case - though this is the first time I learned of these discrepancies- I (wrongly) thought that it was a clear cut case , such was the media hype at that time
I hope that justice will prevail in his case
Che Guevara in 'Reminiscences of the Cuban Revolutionary War' writes about the dilemma of dealing with a traitor. They can't keep him because they are on the move and don't have holding facilities. They can't let him go for fear of betraying positions. So they execute. If I remember right, Che wrote, 'In a different time under different circumstances he would not have been killed and who knows may have even become a useful citizen of revolutionary Cuba....but right then, there were no options'. In the cases you mention, they have to be restrained partly as punishment and partly for the safety of the community. I didn't say no to prison sentences.
Young Jayamaha was judged and found guilty before the case ever came to court-by the public, the media and ultimately a wholly biased prosecution. He may well have been guilty; but the discrepancies in the police evidence were blatant and careless. And guilt has to be established beyond reasonable doubt according to the law of the land.
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