Revival of judicial execution in Sri Lanka will throw up problems, says legal expert

Sri Lankan President Maithripala Sirisena’s decision to order execution of drug dealers who continue to do their business even while being on the death row, will give rise to a legal question besides being ineffective in controlling the drug menace, an expert says.

VT Thamilmaran, Senior Lecturer in the Faculty of Law at Colombo University, said that “selective application” of the President’s prerogative to order execution of a person sentenced to death could be problematical.

“The selective application of the law might be deemed to be violating the constitutional provision for the right to equality,” Thamilmaran pointed out.   

In Sri Lanka, by convention since 1976, no person sentenced to death is executed. This includes people sentenced to death for possessing or trafficking in drugs. According to the law, possessing more than 2 grams of heroin calls for a death sentence.

But ordering death sentence to be carried out in respect of only one category, namely for those who trade in drugs while being in the death row, would violate the convention that no death sentence is carried out and all such sentences are commuted, according to Thamilmaran.

Impact of conditions in jails

The other aspect that Thamilmaran referred to is the role of the jail system in enabling drug trade within its precincts. Drug lords like the notorious Wele Suda indulge in the trade through ultra-modern phones. According to cabinet spokesman Dr Rajitha Senaratne there are 19 equivalents of Wele Suda in the death row in Sri Lanka.

Media reports on the drug menace say that prison officials and guards are part of the racket. They get paid by the drug lords. One officer was indicted for taking money to build his house. Drug lords inside jails supply drugs to guards who in turn sell them to prisoners for a price. Money and drugs flow into jails without let or hindrance.

Officers and guards have been interdicted, but the trade has been flourishing nevertheless. Executing some for trading in drugs while in jail will not eradicate the menace unless corruption is eradicated in the country’s jails.

But even that cannot be done unless the society around is rid of corruption and other forms of crime.

Consequence of economic liberalisation

According to Thamilmaran, crime, the drug menace and the underworld, came into existence in Sri Lanka after the economy was liberalised in 1978. The then president, JR Jayewardene, who began the liberalisation process, said that he would “welcome even robber barons” if they could bring in private investments.

“With economic liberalization came a new kind of mentality – the need or craze for making money, whether legally or illegally, by hook or by crook. Prior to 1978, the word underworld did not exist in the Sri Lankan lexicon. We had only small street gangs,” Thamilmaran said.

“Given the introduction of the market economy ,everybody seemed to be in great need for money, whether they were politicians, businessmen, officials or the common man. The opening up of the Gulf countries to Sri Lankan workers brought in money and with it wants increased and spread across society. Drug trafficking began to be an important sources of big money and it thrived with official and political support.”

“Unless the problem is tackled from the economic, sociological and administrative angle, the drug menace will continue to grow despite executions,” Thamilmaran said.

Violation of international obligations

The Colombo University don pointed to Sri Lanka’s international obligations in respect of human rights, including the abolition of the death penalty.

Sri Lanka has not ratified the Second International Protocol of Civil and Political Rights on the abolition of the death penalty and therefore it can go ahead with executions. But Sri Lanka is a co-sponsor of the 2015 UN Human Rights Council resolution on its obligations towards promoting human rights.

“Re-introduction execution will not accord with these obligations and will be another black mark in its questionable human rights record,” Thamilmaran commented.

Immediate provocation

Cabinet spokesman Rajitha Senaratne said that the President had taken the drastic decision to revive judicial execution for drug dealers continuing their business from the death row because of the huge haul of drugs at the Colombo port from 2016 onwards. There is evidence of widespread drug related criminal activity in every part of the island, especially in the war-devastated Northern and Eastern provinces.

Recently, the authorities had seized 103.9 kg of heroine worth US$ 7 million in one of the country's biggest drug busts. In 2016 and 2017, more than 1000 kg of drugs had been seized from ships calling at Colombo.

There were also a strong accusation that the Sirisena government is indecisive and weak. A leading  Buddhist monk    called for “a Hitler’ to rule the island. In the Tamil majority North Sri Lanka, Deputy Minister Vijayakala Maheswaran called for the revival of the separatist Tamil Tiger militants who ensured law and order when they held sway in the area.

Sirisena was thus under compulsion to show that he is not weak kneed.

Mixed history of death sentence

Sri Lanka has had a mixed history in regard to capital punishment. During the time of the Sinhalese Kings and during British rule, capital punishment was common with thousands being executed for murder or even disloyalty. But when a government based on Buddhist non-violent principles came into being under Prime Minister SWRD Bandaranaike in 1956, the death penalty was abolished.

However, when a Buddhist monk assassinated Bandaranaike in 1959, the death penalty was re-introduced. But it was abolished again in 1976 as the then government led by Mrs. Sirimavo Bandaranaike was also based on the Buddhist  principle of non-killing or Ahimsa.

The ban continued under the Jayewardene government which was also based on the Buddhist principle of Dharmishta.

But Jayewardene also introduced liberalization.  That resulted in social inequalities ,which in turn led to a Marxist insurgency in the South and separatist militancy in the North resulting in violence and counter-violence.  Sri Lanka became a happy hunting ground of criminals including drug traffickers.

This in turn has led to calls for stern action such as the revival of judicial executions. But as research shows, hanging drug traffickers will not eradicate  the drug menace, unless the underlying social and economic causes are addressed through remedial action with a long term perspective.

Researches show that countries with capital punishment are by no means devoid of crime, the US being a good example. There is no scientific evidence that capital punishment has brought down murders or crime.

In 1958, just before SWRD Bandaranaike’s assassination, the  government appointed a commission to inquire into the issue of death penalty,  headed by eminent criminologist Dr Norval Morris.

The Morris commission’s conclusions were: death penalty does not have a stronger deterrent effect than protracted imprisonment; and that it could claim innocent lives due to miscarriage of justice.

The commission also noted that whether or not a State uses the death penalty, murders will occur and these will be due to the social, political and economic conditions in the country.