Speech on the topic ‘Corporal Punishment versus Capital Punishment and the

judgement Sri Lankan Justice System’.

Introduction
Punishment has many different meanings. In criminal law, punishment is
defined as "any pain, penalty, suffering, or confinement inflicted upon a person by the
authority of the law and the judgement and sentence of a court, for some crime or
offence committed by him, or for his omission of a duty enjoined by law," according
to the Black's Law Dictionary, which takes a legal perspective. The legal definition is
retributive a punishment inflicted by the force of law and makes no mention of any
related to altering behaviour. On the other hand, punishment is anything that happens
after a conduct that decreases the likelihood that the behaviour will occur, according
to the psychological science of applied behaviour analysis. Depending on one's line of
work and worldview, people may describe and view punishment differently. There are
many theories of why crime and other violations of community values occur, and
many theories about how the punishments imposed for those violations address
compliance to those laws and values (Schram & Tibbetts, 2014). A different view of
punishment views punishment as an instrument to make good or compensate for loss,
damage or injury- a return or restoration of a previous state.

What is Corporal Punishment?

Corporal punishment can be defined as “the use of physical force intended to

cause pain, but not injury, for the purpose of correcting or controlling a child’s
behavior” (Straus and Donnelly, 2005). The concept is further elaborated by Gershoff
(2002) that corporal punishment are; behaviors, which do not result in significant
physical injury are considered corporal punishment, whereas behaviors that risk injury
are considered physical abuse (Gershoff, 2002). Frequency and severity of corporal
punishment are inconsistently defined and measured and these vary from culture to
culture, nation to nation and situation to situation. All these harsh disciplinary
measures adopted by authoritarian/totalitarian parents and teachers to discipline
children lead to anti-social behavior, contribute to academic failure and social
rejection. These conditions further reduce self-esteem and create depressed mood,
which in turn add to the likelihood of delinquency in adolescents (Patterson, 1982).
Many countries such as Norway, Denmark, Finland as well as Sri Lanka have
banned corporal punishment in schools, considering it as a source of school violence.
Most of the child welfare organizations have policies opposing the use of corporal
punishment. Many educationists are against corporal punishment because of the
affront to the child’s dignity. Graziano (1990) stated that if we are legally prohibited
from striking other adults, why is it okay to strike a child?
Corporal punishment may be divided into three types:

 Judicial corporal punishment which is punishment ordered by a court

of law;
  Parental or domestic corporal punishment. Parental corporal
punishment is permitted in all U.S. states except for the state of Delaware
(Clabough, 2012). Thirty four countries around the world have banned the use
of parental corporal punishment (Global Initiative, 2012);
 School corporal punishment which occurs when students are punished
by teachers or administrators

Corporal Punishment and the Rights of the Child

A child is a “minor”. According to Article 1 of the Convention on the Rights
of Child (CRC), “a child means every human being below the age of eighteen years
unless, under the law applicable to the child, the majority is attained earlier.”
Moreover, Article 19 (1) of the Convention provides that “States Parties shall
take all appropriate legislative, administrative, social and educational measures to
protect the child from all forms of physical or mental violence, injury or abuse,
neglect or negligent treatment, maltreatment or exploitation, including sexual abuse,
while in the care of parent(s), legal guardian(s) or any other person who has the care
of the child”.
Further, placed within the context of human rights, corporal punishment can
be perceived as a violation of children’s fundamental right to physical integrity and
human dignity, as set forth in the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights. These international conventions
guarantee that the fundamental rights of the child encompass protection against all
forms of torture and inhuman and degrading activities.

Legal Framework in Sri Lanka

The Constitution of the Democratic Socialist Republic of Sri Lanka guarantees
the fundamental rights of Sri Lankan citizens in Article 11 of chapter three, where it
states that “no person shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment”. Thus, the constitution the supreme law of the country, sets
the legal background to protect fundamental rights.
Corporal punishment includes beating, spanking, rapping on the head and
slapping which could be defined as torture. However in the sense of Article 11 of the
Constitution of Sri Lanka corporal punishment is, therefore a violation of the
fundamental rights of any person, including children.
A Petition, dated 7th March 2017, was brought by a minor of 15 years of age
(at the time of petition) and his parents against the teachers and authorities of a public
school. The Child Petitioner was slapped across the face by one of the teachers which
resulted in permanent hearing impairment. The Petitioners argued that the teacher’s
act amounted to torture, cruel, inhuman degrading treatment or punishment- as
prohibited by Article 11 of the Constitution. They filed an action before the Supreme

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Court stating that the fundamental rights of the Child Petitioner have been infringed.
The Petition succeeded and the Court, in a judgment delivered on 12 February 2021,
found that Article 11 of the Constitution had been violated by the teacher and the
State. The Court ordered compensation to be paid to the Child Petitioner by the
teacher and the State respectively.

In its judgment, the Court cited the Convention on the Rights of the Child and
the UN Committee on the Rights of the Child’s General Comment no. 8 (2006) on the
Right of the Child to Protection from Corporal Punishment and Other Cruel or
Degrading Forms of Punishment. It directly quoted a number of Convention articles
including articles 19 and 28 and paragraph 11 of General Comment no. 8, which
provides a definition of corporal punishment. The Court stated (pages 13-14):
“An individual’s understanding of the discipline, respect for rules, and a healthy
attitude towards a non-violent society are integral attributes that must be instilled from a
young age. However, in civilized society, these goals are to be accomplished using alternative
forms of discipline which do not inflict physical or mental harm. Sri Lanka as a signatory to
the UNCRC has understood the need to curb the widespread use and acceptance of Corporal
Punishment.”

Subsequent law reform in Sri Lanka

Section 4 of Circular No. 12/2016 reportedly prohibits the use of corporal
punishment in government schools and lists positive discipline measures to be used by
teachers, but this would not apply to all schools and has not been confirmed in
legislation. According to national campaigners, the Supreme Court’s judgment does
not outlaw corporal punishment in schools and is unlikely to be followed by law
reform. The Government is officially committed to reforming its laws to prohibit
corporal punishment in all settings. In reporting to the Committee on the Rights of the
Child in 2017, the Government acknowledged there was a legislative gap and stated
that “introducing a law to combat corporal punishment” was a priority
issue(mario@ices.lk). However, as of February 2021, no child-related bills appeared
to have been tabled in Parliament.

What is Capital Punishment

Capital Punishment is the death sentence including-but limited to-hanging,

electrocution, or a lethal injection. Before and around the 1700s, there were a lot more
ways of execution, but since the Eighth Amendment was ratified to have more
"humane" ways of putting an offender to death, there are only hanging (in one or two
states now, electrocution and lethal injection which is mainly done in the states that
still have the death penalty).
In December 2018, the United Nations General Assembly voted
overwhelmingly once again, for a universal moratorium on the use of the death

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penalty.( https://www.un.org/en/ga/73/resolutions.shtml) 121 countries voted in
favour, 35 voted against, and 32 abstained. The Resolution was proposed by Brazil on
behalf of an Inter-Regional Task Force and co-sponsored by 83 states. This resolution
was a sequel to several previous General Assembly resolutions going back to 2007,
where the world body had voted to enforce a moratorium against the use of the death
penalty. Sri Lanka voted favour in 2016 and 2018, having previously abstained when
the matter had come up before the General Assembly. (World Coalition Against the
Death Penalty) In 2016, Sri Lanka had participated in the 6th World Congress against
the Death Penalty in Oslo and made a similar commitment.
The General Assembly resolution sees the death penalty as a human rights
issue and called on states to ‘establish a moratorium on executions with a view to
abolishing the death penalty’. It also called on states to ratify the Second Optional
Protocol to the International Covenant on Civil and Political Rights, that seeks to
abolish the death penalty. The 2018 resolution called on states that have abolished the
death penalty not to reintroduce it and encouraged states which have a moratorium to
maintain it. (A/RES/73/175) It also called on states to ensure that those facing the
death penalty can exercise their right to apply for pardon or commutation of their
death sentence using fair and transparent procedures. The resolution asked states to
disaggregate the information on the use of the death penalty by sex, age and race.

The Second Optional Protocol aiming at the abolition of the death penalty, was
adopted by the General Assembly on 15th December 1989 and came in to force on the
11th of July 1991. As of 4th July 2019, 87 states were party to the Second Optional
Protocol. The Optional Protocol requires states to abolish the death penalty within
their borders, and allows states to make a reservation allowing execution ‘in time of
war pursuant to a conviction for a most serious crime of a military nature committed
during wartime’.(Second Optional Protocol to the International Covenant on Civil and
Political Rights, Article 2)

Sri Lanka and the Death Penalty

The death penalty remains a part of the Sri Lankan legal regime: trial courts
are required to impose it for convictions of murder, and it can be imposed in the case
of drug related offences. (Section 296 of the Penal Code) However, the country’s last
execution was in 1976 and successive Presidents since then have refrained from
implementing it or commuted the sentence to life imprisonment. Attempts to abolish
the death penalty go back to 1928, twenty years before Sri Lanka obtained
independence from the British. (E 01/09/09, 31st August 2009) In 1928, the
Legislative Council adopted a resolution moved by D.S. Senanayake (subsequently
the first Prime Minister of independent Ceylon) that capital punishment should be
abolished. (Jayawickrame, 2019) The death penalty was suspended by statute in 1956
when SWRD Bandaranaike was Prime Minister for a trial three-year period, and the
Norval Morris Commission was set up to examine the issue. However, it was restored

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when Prime Minister Bandaranaike was assassinated in 1959 by a Buddhist monk. In
1976, a policy decision was taken to refrain from implementing the death penalty and
in May 1977, under the previous constitution, the then ceremonial President,
commuted the sentences of all those on death row - 114 men and three women.
Around June 2018, President Maithripala Sirisena announced that he proposed to
revive the death penalty for those convicted of drug-related offences. Since then,
public applications were called for the position of a ‘Hangman’ and prospective
applicants were interviewed. In January 2019, President Sirisena, visited the
Philippines and praised the crackdown on illegal drugs by the country’s president,
Rodrigo Duterte, calling it ‘an example to the world’. Thousands have been killed
since Duterte took office in 2016 with human rights groups calling them extrajudicial
killings.

Around the 26th of June this year, local media reported that President Sirisena
had signed the warrants for the executions of four prisoners on death row - three men
and one woman - who were convicted of drug-related offences. (Fernando) It was not
known on what basis these four persons were selected as the ‘chosen few’ for the first
executions after 46 years. Approximately 1,299 prisoners are currently on death row,
including 48 convicted of drug offences. The President proceeded with his decision
even though there were appeals from the international community and a statement
from the European Union that Sri Lanka risked losing tariff benefits under the GSP
Plus scheme, should executions be resumed. Three years ago, the Human Rights
Commission of Sri Lanka, wrote to President requesting that the death penalty be
abolished. The Commission observed:

ln 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 Constitution allows the President to pardon those convicted of an offence,

remit a sentence, or substitute a less severe form of punishment. (Article 34)
However, the Constitution stipulates that in the case of those sentenced to death

… the President shall cause a report to be made to him by the Judge who tried the
case and shall forward such report to the Attorney-General with instructions that after the
Attorney-General has advised thereon, the report shall be sent together with the Attorney-
General’s advice to the Minister in charge of the subject of Justice, who shall forward the
report with his recommendation to the President.

There have been several previous attempts to revive the death penalty in Sri
Lanka. About ten years ago, in the wake of some high-profile murders, including a
murder of a High Court judge, and the rape and murder of a young girl in Jaffna, there

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were calls or the reinstatement of the death penalty. In those circumstances there was
public outrage at these killings and consequently public support, as expressed in the
mainstream media, for the reinstatement of the death penalty. What is different today,
is that public support is not as strong as it previously was, and Sri Lanka may be on
the verge of a historic moment, that sees the legal abolition of the death penalty within
the course of this year. Sri Lanka’s domestic law is inconsistent with international
norms, if its domestic law is assessed against the international framework developed
by the Human Rights Committee in General Comment. According to that framework,
the death penalty cannot be imposed for drug related offences and the judge should be
given a discretion in deciding whether to impose the death sentence.

Should Sri Lanka abolish the death penalty, either through statute, or through
judicial interpretation, it may want to consider the establishment of a parole board, or
similar institution, so that when sentences are reduced, they are done after a review of
all relevant factors, and are based on rational criteria, and open to judicial review. The
death penalty in Sri Lanka today, hangs by a thread. The Private Member’s Bill to
abolish the death penalty combined with the two pending actions in court, raise the
possibility that the death penalty could soon be legally abolished in Sri Lanka by
statute or judicial interpretation. Sri Lanka’s constitutional and legal framework
acquired a new edge with the adoption of the 1978 Constitution, and the inclusion of a
justiciable Bill of Rights. The Bill of Rights does not contain an explicit right to life,
but the Supreme Court has held that the right to life is implicit in the constitutional
framework. The Bill of Rights, however, does contain a prohibition against torture
and other forms of cruel, inhuman and degrading treatment, and the execution of the
death penalty is prima facie, a violation of this provision of the constitution.
Surprisingly, there has been a lack of public support for the retention of the death
penalty, and this despite the recent Easter Sunday bombings in the country. Barring
the current President, political actors across different party lines have spoken out
against the death penalty. The mainstream press has also not supported the retention
of the death penalty. It is against this context of a lack of public support for the death
penalty, the Private Member’s Bill and the two pending legal actions, that the thread
by which the death penalty hangs may soon be cut, and Sri Lanka could possibly join
the growing number of civilized countries that have abolished the death penalty in law
and practice.

References

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DuRant, R.H., Cadenhead, C., Pendergrast, R.A., Slavens, G., & Linder, C.W. (1994). Factors
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Psychol Bull. Graziano, (1990). Normative Support for Corporal punishment : Attitude, correlates and
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Goodman, S.H., Hoven, C.W., Narrow, W.E., Cohen, P., Fielding, B., Alegria, M., et al. (1998).

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Hyman, I.A. (1988). Eliminating Corporal Punishment in Schools: Moving from advocacy research to
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McCord, J. (May, 1991). Questioning the Value of Punishment: Social Problems. BBC News. (00:22
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https://www.un.org/en/ga/73/resolutions.shtml>.

World Coalition Against the Death Penalty

UN General Assembly Resolution A/RES/73/175, December 2018, Para 7 (h).

Section 296 of the Penal Code of Sri Lanka which prescribes the sentence for murder.

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Dr. Nihal Jayawickrame, ‘Sirisena and Duterte: Lost in Translation’, Sunday Island, 7th July 2019,
p10.

Ruki Fernando, ‘Death Penalty: License for Judicial Killings’.

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Human Rights Commission of Sri Lanka,
<http://hrcsl.lk/english/wpcontent/uploads/2016/01/RECOMMENDATION-TO-ABOLISH-THE-
DEATH-PENALTY-IN-SRI-LANKA-E-1.pdf>, 1st January 2016, at page 3.

Article 34 (1) of the Constitution of Sri Lanka.

Human Rights Committee, General Comment No 36, CCPR/C/GC/36, 30th October 2018, para 35.