Another child tried as an adult and sentenced to death

 12 August 2020 

Sentencing children under 18 years of age to death is prohibited under Sri Lankan law. Despite these laws and many other national and international provisions, there have been many persons sentenced to death for crimes they committed as children. These sentences are blatant violations of Children and Young Persons Ordinance, Youthful Offenders Ordinance, United Nations Convention on the Rights of the Child ratified by Sri Lanka in 1991 and United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules).

53. Sentence of death shall not be pronounced on or recorded against any person who, in the opinion of the court, is under the age of eighteen years; but, in lieu of that punishment, the court shall sentence such person to be detained during the President’s pleasure. 

296. Whoever commits murder shall be punished with death.
      Penal Code

Section 53 of the Sri Lankan Penal Code does not recognise the distinction between the age at the time of the conviction and the age at the time of the committing of the offence. Owing to this loophole in the justice system, when an offender who has crossed the 18-year threshold between the date of the offence and the date of conviction, culpability is judged without reference to the offender’s age at the time of committing the offence.  

 

Owing to this loophole in the justice system, when an offender who has  crossed the 18-year threshold between the date of the offence and the  date of conviction, culpability is judged without reference to the  offender’s age at the time of committing the offence

The Daily Mirror is in possession of a case (H.C. 1109/07 JAFFNA, C.A. NO. 85/2010) relating to an accused who was an underage boy at the time of an alleged murder and robbery in 1999. On the day that the crime took place, he was arrested and produced before Magistrate Court of Jaffna and remanded. Thereafter he was indicted before High Court of Jaffna and after trial, he was convicted and sentenced to death in August 2010. When he was sentenced to death, he was 27 years old, but he committed the crime when he was 16 as a child.  

Being aggrieved by the verdict, the accused appealed to the Court of Appeal seeking relief. Consequently, on November 18, 2016, the Court of Appeal set aside the death sentence and allowed the hearing of the appeal. The Court of Appeal further directed the Prison Authority to inform the President of the country who, under S. 53 of the Penal Code, has the power to pardon the accused. Then, the former President Maithripala Sirisena by letter dated 05/09/2019, imposed a sentence of life imprisonment on the underage child.   

Nimal Muthukumarana, the lawyer appearing for the accused is of the opinion that since this accused was under eighteen years of age, he should be dealt under section 53 of the Penal Code, not under section 296.   

In a recent article published in Daily Mirror, Human Rights lawyer Kalyananda Thiranagama stated that in a fundamental rights petition he brought to the Supreme Court with regard to this matter, the Attorney General’s Department ruled that the law should be amended in Parliament. Since then, he had written to the Law Commission, former Presidents, current President, Ministry of Justice and many other government authorities about this matter. Nonetheless, his requests have been ignored.   

“I have met its Chairman and Secretary to submit these documents. They told me that the Commission is overwhelmed with work and therefore cannot look into the matter. They requested me to prepare the amendment to the section, which I also obliged in 2016. Four years have lapsed since then, and there has been no amendment to this law. President Maithripala Sirisena wrote to the Ministry of Justice on October 24, 2016, directing the Justice Ministry Secretary to do the needful. But nothing has been done. This delay is questionable. These officers are not sensitive to the suffering and the real issues of the people. That is why the prisons are overcrowded. There are many in those prisons who are languishing for crimes they have not committed,” he said.