Commission views is imperative for Sri Lanka in recognition of the growing global recognition
Read the full letter of the HRCSL to President Sirisena, dated l January 2016:
Read the full letter of the HRCSL to President Sirisena, dated l January 2016:
Drug menace is certainly growing and growing fast too and has to be completely eradicated. The question is how best it could be curbed, if not eliminated
He said that Cabinet approval had been obtained to implement the death penalty on repeat offenders related to large scale drug offences.
The move, as expected came under attack by many civil factions on the grounds that the world in the modern era is increasingly looking at ways of deviating from ‘barbaric’ methods of punishing criminals. Interestingly, many religious leaders, mainly chief Buddhist monks representing both Malwatte and Asgiriya Chapters and Archbishop Malcolm Cardinal Ranjith who vehemently opposed Government’s attempt to partially legalize abortions, praised President Sirisena and his Government for the ‘brave’ step to be taken.
The posts of two ‘hangmen’ are still vacant as the previously selected two executioners did not report back to work even after receiving training. Now the Government will have to start the hunt for two hangmen if it is to carry out capital punishment as planned and no one is sure about the time it will take in recruitment and for the training period. Capital punishment was carried out in Welikada and Bogambara prisons earlier and the gallows, as reported earlier by prisons officials, need renovations. In addition, the rope use to hang convicts is not available locally and according to officials needs to be imported from Pakistan. As a whole, it is unlikely that President Sirisena will be able to carry out capital punishment as planned before the end of his first term, considering the time-consuming process involved.
Sri Lanka has a history of suspending and reviving death penalty. The British restricted the death penalty after they took control of the island in 1815 to the crimes of murder and “waging war against the King”.
Prime Minister S.W.R.D. Bandaranaike, in his first Cabinet meeting after being elected in 1956, decided to suspend the death penalty for a period of three years.
In April 1958 the Suspension of the Capital Punishment Act was passed by both Houses of Parliament. During the second reading, the Minister of Justice informed the Senate that the Government proposed to appoint a commission to examine the whole issue thoroughly, and this commission was appointed in October 1958.
According to a published article by Anne Ranasinghe in 2003, the Chairman was Dr. Norval Morris, Dean of the Faculty of Law of the University of Adelaide, and the other members were Sir Edwin Wijeyeratne, a former Minister of Home Affairs; Professor T. Nadarajah, Dean of the Faculty of Arts and Head of the Department of Law at the then University of Ceylon; and S. Canagaraya, was the Secretary of the Commission.
The Commission made a careful study of every aspect of the death penalty and its report was published just two weeks before the assassination of Prime Minister Bandaranaike. However, the decision by Prime Minister Bandaranaike to suspend death penalty was revoked and the Government decided to reintroduce it soon after his assassination in 1959.
The United National Party Government modified the use of death penalty in 1978 Constitution. Under the new arrangement, death sentences could only be carried out if authorized by the trial judge, the Attorney General and the Minister of Justice. If there was no agreement, the sentence was to be commuted to life imprisonment. The sentence was also to be ratified by the President and this clause, according to legal experts, effectively ended executions.
Sri Lanka as a country probably started raising concerns about the full horror of the death penalty after the execution of infamous Dedduwa Jayathungalage Siripala alias Maru Sira at Bogambara Prison on 5 August 1975. The night before his execution, prison guards gave him Largactil in strong dosage in an attempt to prevent him escaping, but this caused him to collapse and his hanging was botched because the short fall caused by his slumped position, caused him to strangle to death instead of breaking his neck and killing him instantly
The last man to be hanged in Sri Lanka was from Tissamaharama on 23 June 1976.
President Chandrika Kumaratunga made several attempts to re-introduce the death penalty. In March 1999, after spurts of violence near the end of her first term in office, she stated that the Government would be reintroducing the death penalty. However, she was forced to back down in the face of overwhelming public protest. The issue hung in the balance, with all death sentences from then on being neither commuted to life nor carried out. After discussions were held regarding the matter, the motion that commuted all death sentences to life in prison was revoked in January 2001.
On 19 November 2004, High Court Judge Sarath Ambepitiya was gunned down as he arrived home from work. He had a reputation for handing out tough sentences. The assassination immediately prompted Kumaratunga to effectively reinstate capital punishment.
The Government decided to reinstate capital punishment in 2004 for cases of rape, drug trafficking and murder after the assassination of High Court judge Sarath Ambepitiya.
Apart from international human rights agencies denouncing Sri Lanka’s decision to reintroduce capital punishment,
Sri Lanka Human Rights Commission on Friday (13) wrote to President Sirisena raising concerns over moves to implement the death penalty on convicts involved in drug trafficking.
Commission Chairperson Dr. Deepika Udagama said in the letter that the death penalty is a serious human rights violation.
Udagama said that the Commission does not feel implementing the death penalty can address the issue of drug trafficking.
The Sri Lanka Human Rights Commission also notes that implementing the death sentence will only contribute negatively to a society where the public have lost faith in the justice system.
The Sri Lanka Human Rights Commission also reminded the President of a set of recommendations issued in 2016 which called for the abolition of the death penalty in Sri Lanka in keeping with Sri Lanka’s commitment to a more humane society consonant with human rights principles and values.
Dr. Udagama in a previous letter dated
1 January 2016 wrote to President Sirisena stating that: The Human Rights Commission wishes to bring to Your Excellency’s and the Government’s attention its recommendations regarding the abolition of the death penalty, which the Commission views is imperative for Sri Lanka in recognition of the growing global recognition that the death penalty seriously violates several human rights including the right to life and freedom from cruel and inhuman punishment and is an extreme and irreversible punishment and is ineffective as a deterrent to crime. Sri Lanka should demonstrate its commitment to the sanctity of life and fundamental human rights principles by joining the more than 100 nations in the world that have abolished the death penalty thus far. Another 60 countries do not carry out death sentences in practice.
International human rights obligations of Sri Lanka clearly discourage the death penalty. Article 3 of the Universal Declaration of Human Rights enshrines the sanctity of human life by affirming that everyone has the right to life, liberty and security of person, whilst Article 6 of the International Covenant on Civil and Political Rights strongly suggests that abolition of the death penalty is desirable.
Your Excellency’s attention is drawn to the Second Optional Protocol to the International Covenant on Civil and Political Rights, adopted by the UN General Assembly by resolution 44/128 of 15 December 1989 which calls for the abolition of the death penalty. Its Preamble declares that the abolition of the death penalty contributes to the enhancement of human dignity and progressive development of human rights. In keeping with Sri Lanka’s commitment to improving human rights protection in the country, we recommend that Sri Lanka accede to the Protocol and take steps to abolish the death penalty.
Whilst appreciating that, from 1976, successive Governments in Sri Lanka have not implemented the death penalty, the Commission notes that courts continue to impose the death penalty under several statutes which provide for the imposition of the death penalty, including the Penal Code and the Poisons, Opium and Dangerous Drugs Ordinance as amended by Act No. 13 of 1984.
In view of international and comparative jurisprudence, the Commission agrees with the position that the death penalty amounts to cruel, inhuman and degrading punishment and fails to respect the sanctity of human life. The Supreme Court of Sri Lanka has held that although there is no express fundamental right to life, nevertheless that such a right is implied in the 1978 Constitution of Sri Lanka. Article 11 of the 1978 Constitution prohibits without any reservation torture as well as cruel, inhuman and degrading treatment or punishment.
The Commission seeks to place before Your Excellency and the Government the following factors which should be considered in abolishing the death penalty:
Death Penalty as deterrence to crime
Many proponents of the implementation of the death penalty have urged its implementation as deterrence to crime. However, it is our view that it is an effective justice system and a just social order that led to a reduction in crime, as is seen in countries which have some of the lowest crime rates. There is no empirical data, to show that death penalty has caused a reduction in crime or has a deterrent effect on crime.
Risk of miscarriage of justice and irreversibility of capital punishment
Despite constitutional safeguards, including the appeals process and recommendations being called from the trial judge, the Attorney General and Minister of Justice, it is the view of the Commission that there is always the risk of innocent persons being executed for crimes which they did not commit.
It is the view of the Commission that in view of the serious flaws which exist in the criminal justice system coupled with Sri Lanka, unlike other countries, not having a process permitting the reopening of a criminal case after exhaustion of the appeals procedures, there is a serious risk of a miscarriage of justice. Although due process in criminal proceedings is guaranteed by the Constitution and statutory law, there is always the possibility of human error distorting the final outcome.
The Commission wishes to place before Your Excellency that there have been several instances, in countries including those of the developed world, where also due to new investigation techniques and development of technology, fresh evidence has surfaced or doubts raised about the integrity of evidence many years after conviction. In the United States, Canada and the United Kingdom there have been several occasions where people wrongly convicted have been released from death row or prison decades later, the most recent being a US man who was released in November in Louisiana after serving 23 years in prison for several crimes, because the judge found he did not obtain a fair trial. The lead investigator and the judge in the original trial said they believe his conviction was a “miscarriage of justice”.
Similarly, the Commission notes there are allegations of prosecutorial misconduct leading to conviction of the innocent in Sri Lanka. Such an instance is highlighted in the Supreme Court Judgment of Wijepala vs Attorney General (2001) 1 SLR 42.
Accused not being properly defended
The Commission is also of the view that the chances are that accused from underprivileged circumstances would be more prone to be subjected to the death penalty than those who have the financial means to hire competent counsel. There is a possibility of certain accused being convicted not due to their guilt but due to being improperly defended. In the High Court where accused are financially unable to retain counsel, the State assigns counsel from the private bar at random, who often tend to be young, untrained, inexperienced and not sufficiently remunerated.
For all of the above reasons the Human Rights Commission recommends that Sri Lanka ratifies the Second Optional Protocol to the ICCPR and abolishes the death penalty forthwith.
The death penalty should be substituted with periods of imprisonment that befit the seriousness of each crime. Accordingly, we recommend that commutation of periods of imprisonment for such crimes also be done according to a national policy that takes into consideration the serious impact of such crime on society.
July 14, 2018, 2:08 am
Wednesday, 11 July 2018
The agony and anxiousness that a divorce proceeding in Sri Lanka inflicts on spouses is widely known and there are many who can speak to it. It is a proceeding usually faced in silence. Once it is done with, we want to forget it, we don’t want to relive it, and we want to get on with the next stage of building our lives after a divorce. As a result, these stories and experiences remain untold.
While this piece was penned, the Supreme Court added its voice to the state of divorce law in Sri Lanka. The Court in SC Appeal 123/14 felt compelled to uphold a decision not to grant a divorce and commented: “This is a sad case which has seen the parties locked in a long and bitterly-contested battle over whether they should remain married or not. The wife sought this divorce in 2001, when she and her husband were both in their early forties. The fact that this appeal was fought by both of them suggests that the unhappy marriage which led to this action being instituted has continued to remain so during the 17 years in which this case has traversed the Courts. It seems that the rancour between the spouses continues unabated. This litigation has seen the plaintiff and the defendant into their late fifties and has to have exacted its heavy toll on both spouses and their children.”
This Supreme Court judgment is the latest voice in an age-old call for reform of the General Marriages (Registration) Ordinance No. 19 of 1907. As a country, we choose to continue subjecting one of the most personal decisions of ending a marriage relationship to the most public adversarial form of adjudication.
The law is wholly unsuited to the task
While two people are technically free to enter into a marriage, they are not free to end it. The law cares very little about your marriage except to ensure that it is recorded. By reducing the barriers to marriage, we signal our encouragement as a society of the marriage relationship.
However, the law cares very deeply if you try to end your marriage. Numerous barriers are setup, the most telling one being that the two people cannot end their marriage of their own accord. Instead, the law hands over this decision to a judge.
It is not enough that the law removes the right of individuals to decide that they want to end the relationship, the two individuals are also pitted against each other by framing divorce proceedings as an adversarial contest. This unnecessarily complicates a difficult, often traumatic personal and social experience, of deciding to separate. It introduces a legal blame game, reinforces animosity towards each other, and creates winners and losers where there ought to be none.
The law requires such a degree of black or white that it is wholly unsuited to the task of determining the end of a relationship between two people. The law tells a judge to look at the facts and the intention and decide whether or not the relationship was abandoned.
The fact that the two individuals went to the police station together after an allegedly brutal attack by the husband, and the fact that the wife continued to cook for the husband and he paid for some household expenses, were interpreted as ‘cohabitation’ and that the marriage had not been ‘deserted’. Therefore, the contextual realities and contradictions that play out in marital relationships, do not find a place in the law.
Ending a marriage in Sri Lanka
In our country we cannot choose to dissolve a marriage by citing irreconcilable differences. We can only seek a divorce by blaming the other person of adultery, impotency or malicious desertion. It is remarkable that those who get married are unaware of the process involved in getting out of the marriage. It has taken people by surprise to realise that, unlike placing a signature and being married, divorce insists on legal papers, a courtroom, a blame game and lawyers’ fees.
Today in Sri Lanka, divorce proceedings are conducted in open court. We don’t value the privacy of those going through a divorce, and embarrassment is a tool wielded in this open process. There are instances, where the man will agree to being the one at fault, so that the woman has a ‘clean’ record and her prospects of a future marriage are not in jeopardy. This reaffirms gender stereotypes – of it being okay for men to be adulterers or desert a marriage, while a higher standard of faultless behaviour and a good reputation is expected of women.
In an attempt to escape the experience of getting divorced, litigants in the District Courts, some lawyers and judges recognise a practice of ‘uncontested’ divorce. This is where spouses, both with the intent of avoiding the agony to come, agree that one will file the case and the other will not contest it, thereby leaving the judge with little option but to grant the divorce on the basis that basic grounds for divorce are technically satisfied. To ensure that there is no contest, the least objectionable ground of malicious desertion is usually put forward.
People are choosing to avoid the long-drawn-out blame game, in what appears to be an attempt to be kinder to themselves, with one party willing to take some blame because the law requires its pound of flesh and bring divorce proceedings to a close as soon as possible. Even this uncontested process, because of the adversarial nature of the court, fosters uncertainty and suspicion. Pitted against each other, even though they may have both agreed to the final outcome, there are a host of fears of ‘what will the other side do or say in court’.
Looking for a better way
It is obvious that Sri Lankans are looking for a better way. A way which protects one’s dignity and respects individual choice. A way that does not promote feelings of bitterness and lead to a future of deep suspicion of marriage itself. A way by which both individuals feel equal in the already difficult decision to end a relationship, and be able to invest in themselves and their futures during and after a divorce.
Isn’t it time to do away with the fault-based divorce laws of Sri Lanka? To introduce the ground of ‘irretrievable breakdown’ and the broader understanding of relationships that it brings? It could be a process that is presided over by a judge but not in a court room. The role of the judge only to ensure that the legal consequences of the divorce are explained and understood, and legally-binding orders are made where necessary as to property and children.
With a system like this, only instance of dispute will relate to property or custody and access to children, and will be subject to arbitration by a judge. These cases too ought to be private matters heard in closed-door proceedings and not in open courts.
Reform of laws
The usual counter-arguments to a call for reform of divorce laws are: making it easier to divorce, will lead to more divorces; divorces reflect a broken society that has failed to keep the institution of marriage intact. The simple response is that our society has failed to foster meaningful relationships, least of all marriages.
Strict divorce procedures adds an element of legal violence on a relationship that has already frayed. It does nothing to help individuals revive their relationship, but fosters fear, hatred, anger and bitterness. If, as a society, we are truly interested in fostering meaningful relationships, dismantling the current legal framework governing divorce is only one small step.
Investing in our education system to inculcate strong communication skills, respect and equality between genders, voluntary pre-marital programmes, providing and popularising opportunities for counselling and working on relationships is probably where our attention should be diverted. Instead, we are forcing people within a marriage to stay together without creating any means to help them out of a difficult situation.
Reform of the General Marriage Ordinance of Sri Lanka to introduce the concept of irretrievable breakdown of marriage was proposed as far back as 1959. It also introduced the concept of matrimonial courts. However the proposals were never adopted. The Law Commission of Sri Lanka proposed similar reforms in 2005, making public a draft law – the Draft Matrimonial Causes Bill. Recently, a Committee convened by the Ministry of Justice proposed, as recommended by the Law Commission, that a single ground for divorce of irretrievable breakdown of the marriage replace the current fault based grounds for divorce in the General Marriage Ordinance.
Currently, Sri Lankan Muslim women are advocating for equality and dignity in marriage and divorce. Interestingly Muslim personal law is the only legal framework that allows for mutually agreeing to a divorce (Mubarath divorce). Even the English law which our General Marriage Ordinance is based on, moved away from fault-based divorce in 1996.
Introducing mutual consent and dignity into our understanding and experience of marriage and divorce in Sri Lanka has been a long time coming. It is more interesting to understand where the resistance lies to this long-standing reform agenda. Is it the political leaders held hostage by conservative, patriarchal or religious views? Is it the legal profession itself? Or is the political and legislative system of this country engaged in anything but meeting the expectations of its people?
Othman Heles is the 138th Palestinian to have been killed since the beginning of the Great March of Return
Israeli forces shoot tear gas at Palestinian demonstrators in eastern Gaza on 13 July 2018 (MEE/Mohammad Asad)
Friday 13 July 2018
Israeli forces killed a teenage boy in Gaza on Friday, as Palestinian demonstrators marked more than 100 days of protests since Great March of Return began.
The Gaza health ministry identified the slain boy as 15-year-old Othman Rami Heles, adding that he had been shot by Israeli snipers east of Gaza City.
The ministry said 68 other demonstrators had been injured as of 7pm local time.
An estimated 30,000 protesters were gathered on Friday evening in five separate locations along the fence separating the Gaza Strip from Israel.
Heles is the 138th Palestinian to have been killed by Israeli forces since the start of the protest campaign in late March.
The Great March of Return began on 30 March, calling for an end to the 11-year Israeli-led blockade on Gaza and for Palestinian refugees’ right of return to the lands that their families fled during the establishment of the state of Israel in 1948.
Friday’s demonstration came days after Israel shut down Kerem Shalom, the Gaza Strip’s only commercial crossing, and reduced the designated fishing zone to six nautical miles on Monday.
Israeli authorities tightened the siege in the Palestinian enclave in an attempt to pressure Hamas, whom it blames for the Great March of Return – an allegation that the campaign’s organisers have rejected.
Heat, tear gas and snipers have not deterred protesters (MEE/Mohammed Asad)
Israeli officials have been outraged by some demonstrators’ use of kites and balloons set on fire, which they fly over the separation fence into Israel, claiming that the kites have sparked fires damaging some 7,000 acres of farmlands and forests.
But Palestinians view the inexpensive flying devices to be a tool of resistance against the well-armed Israeli forces stationed behind the fence that have killed scores of peaceful protesters and wounded thousands. No Israeli casualties have been recorded.
Despite the difficulties of showing up week after week facing Israeli snipers and tear gas in the summer heat, with burning tyres a constant backdrop, demonstrators told Middle East Eye of their determination to continue.
“We will not back down,” said Anas Daoud, a physically disabled 18-year-old protester. “Yes, I am tired, it is exhausting for my health on the rough road, and it is difficult to move in this area with the shooting and the tear gas, but it is a necessary sacrifice.”
Mohammed Hijla came out to protest with his wife and three children.
“We came to the March of Return with our families to send a message to the world from the ground,” he told MEE. “Our children will remember our rights, and they are the ones that ask us to come to the March of Return.”
-Additional reporting from Gaza by Mohammed Asad.
Posted by Thavam
Deputy attorney general Rod Rosenstein announces that 12 individuals have been charged as part of the investigation into Russian interference
Rod Rosenstein holds a news conference to announce the indictments on Friday in Washington DC. Photograph: Leah Millis/Reuters
Jon Swaine in New York and Andrew Roth in Moscow-
A dozen Russians were criminally charged on Friday with hacking and leaking the emails of senior Democrats during the 2016 presidential election campaign.
Grand jury indictments against the 12 alleged Russian intelligence officials were announced by Rod Rosenstein, the deputy US attorney general, at a press conference in Washington.
“The internet allows foreign adversaries to attack America in new and unexpected ways,” said Rosenstein. Lamenting what he called “partisan warfare” in the US around the ongoing Russia inquiry, Rosenstein said: “The blame for election interference belongs to the criminals who committed election interference.”
The charges were filed in Washington by Robert Mueller, the special counsel, who is investigating Russian interference in the election and possible collusion with members of Donald Trump’s campaign team.
They were announced just as Trump arrived at Windsor Castle to meet the Queen, and as he prepared to meet Vladimir Putin, Russia’s president, on Monday. Rosenstein said he had briefed Trump on the developments.
Rosenstein said those charged were operatives of the GRU, a Russian military intelligence agency. He said they had “corresponded with several Americans through the internet”, including an associate of the Trump campaign.
Roger Stone, a longtime adviser to Trump, previously acknowledged that he had exchanged messages with one of the online personas accused on Friday of being a front for Russian intelligence, but he denied knowing that true identity.
Stone told the Guardian on Friday that his correspondence about the hacked documents was “benign based on its content, context and timing” and “provides evidence no of collaboration or collusion”.
Russia inquiry: how Trump’s inner circle could bring him down – video explainer
Thousands of emails taken from the accounts of staff at the the Democratic National Committee (DNC) and John Podesta, Hillary Clinton’s campaign chairman, were published by outlets including WikiLeaks during the 2016 campaign.
The leaks threw the Democratic party into turmoil. The disclosure of embarrassing internal memos prompted the resignation of Debbie Wasserman Schultz, the DNC chairwoman, on the eve of the party’s convention in July 2016.
US intelligence agencies concluded that the accounts were hacked as part of a wide-ranging operation ordered by Putin to damage Clinton’s bid for the presidency and assist Trump’s campaign.
Trump has consistently tried to cast doubt over the conclusions of the intelligence agencies that he now controls, and highlighted denials from Putin about the election interference. He continued on Friday to dismiss Mueller’s inquiry as a “witch-hunt”.
The indicted Russians were on Friday also accused of hacking into the computer systems of American state election authorities and of companies that produced software used by states for running elections. Rosenstein said there was no evidence of any vote tallies being affected.
The Russians used techniques including “spearphishing” and spying software, before publishing the emails through well-known online accounts including Guccifer 2.0 and DCLeaks, which purported to be independent American and Romanian hackers. Rosenstein said both personas were in fact operated by the GRU.
In February this year, Mueller’s team filed criminal charges against 13 Russians and three Russian companies for interfering in the presidential campaign, using social media and coordinating with low-level Trump campaign activists.
Rosenstein said at the time that the Russians had waged “information warfare” against the US during the 2016 campaign, with the aim of “spreading distrust towards the candidates and the political system in general”.
Mueller’s team has also charged Paul Manafort, Trump’s former campaign chairman, with financial crimes. Three other Trump campaign aides have pleaded guilty to lying to the FBI.
The Kremlin did not immediately respond to questions about the US indictment, which was released just as an aide to the Russian president was briefing reporters on Monday’s summit between Putin and Trump.
The two leaders will hold a closed tête-à-tête on Monday morning, followed by a larger meeting between the two delegations. Yuri Ushakov, the aide to Putin, did not bring up the hacking accusations while discussing a list of likely topics for Monday’s talks.
The indictment targeted 12 Russian military officers in two cyberwarfare units in the Military Intelligence Directorate, or GRU, up to the rank of colonel. The Russians are charged with conspiracies against the US, aggravated identity theft and money laundering.
Both GRU units are based in Moscow and traditionally charged with deciphering foreign military communications. Publicly available documents and contracts confirm that one of those indicted, Viktor Netyshko, heads the 85th Main Center for special service.
The GRU has been accused of standing behind Fancy Bear, one of two hacking groups accused of infiltrating US political parties during the 2016 elections.
The United States has already sanctioned six officers from the GRU leadership, including Igor Korobov, the directorate’s head. None of those officers were included in Friday’s criminal indictment.