Harim Peiris

The year 2019 for Sri Lanka should have been a year of renewed hope. Looking ahead to the second decade after the end of the war, a chance to elect (or much less likely re-elect) the president of the republic for a five-year term and move forward resolutely and build on the small but significant gains in nation building which we had achieved during the past five years. These gains include the democracy enhancing measures of the 19th amendment, the consequent robust independent institutions for human rights, anti-corruption and policing among other commissions thus created, the Right to Information Act (RTI), the Office of Missing Persons (OMP), private land releases and resettlement of the internally displaced in the North and East, among other gains. The Rajapakse presidency is not without its own high-water marks and achievements.
Instead however, in 2019, Sri Lanka witnessed the horrors of murderous violence against Christian worshipers and tourists on Easter Sunday in April, the equal horrors of anti-Muslim violence by opportunist communal and political elements thereafter, a loss of hope in a new Sri Lanka by many, not least foreign and local investors and tourists and into this sorry litany of retrograde steps backwards, we now have the prospect of the end of Sri Lanka’s near half century long moratorium on judicial executions.
Sri Lanka’s last judicial execution was in 1976, forty-three long years ago. The resumption of the death penalty is facing multiple legal challenges before Sri Lanka’s superior courts and the lawyers will doubt make the legal case, according to their briefs. However, this article seeks to examine the public policy, socio-political and national interests’ aspects of resuming judicial executions in Sri Lanka.

The lack of due process and adequate dialogue on the issue

Firstly, there has been inadequate dialogue, political debate and discussion on such an important issue and significant change in national life. President Sirisena seems to have decided through private consultations and has been announcing it and seeking to move forward the administrative machinery to give effect to the policy. Even administratively the Justice Ministry and the Prisons Department deny formal procedural measures to reintroduce the death penalty. It is clear, that the policy faces serious political and social opposition. Both Prime Minister Ranil Wickremesinghe and Opposition Leader Mahinda Rajapakse have voiced their serious concerns and reservations over reintroducing the death penalty and assuming that these leaders carry their respective parties on the issue, both the governing UNP and the main opposition SLPP oppose the reintroduction of the death penalty.
In the case of Prime Minister Wickremesinghe, it was his uncle and a previous UNP president JR Jayewardene who introduced the indefinite moratorium on judicial executions in Sri Lanka and in the case of opposition leader Mahinda Rajapaksa, during his own two terms as president, one of them during the final stages of a brutal civil war, the death penalty was not reintroduced, even as a law and order measure or tool of state policy.
Religious leaders of all faiths have opposed the reintroduction of the death penalty and have taken their case before the superior courts, many religious leaders being among the petitioners / appellants in superior court proceedings against the issue. Many Journalists, civil society activists and think tanks have also opposed reintroducing the death penalty.

The Challenge of Human Rights

Human rights have not been a strong suit in Sri Lankan national life. The reality of a long drawn civil war had meant a rather obvious reduction in civil liberties. Within the international community, Sri Lanka still has a distance to go before our past weaknesses and failures on the protection and promotion of human rights would be seen as remedied with institutional protection against reoccurrence. One of Sri Lanka’s few human rights victories have been that we had effectively abolished the death penalty through a moratorium on its implementation, which was continuing decade after decade and seemingly having a consensus in society that it should continue. It is not in our national interest, to eliminate this gain in human rights protection and reintroduce judicial executions by the state. Both the hard won GSP plus trade benefits from the EU crucial for our exports and even law and order cooperation with non-death penalty nations would be affected.

An incoherent and inconclusive law and order argument

The proponents of the death penalty, including our nation’s chief executive, make a law and order argument for the reintroduction of the death penalty. When first proposed, it was a narrow focus. Let us execute repeat drug offences, who are still leading their illegal operations from within the prisons. Firstly, if criminal enterprises are being organized and coordinated by prisoners, this can and should be stopped through appropriate prison and prisoner management measures, not through execution of the prisoners. The general principal is that once convicted and in the custody of the state, a person has been rendered harmless and of no further threat to society at least during the period of judicial custody. Ensuring this is the responsibility of the prisons department.
As numerous research and empirical data demonstrates, there is absolutely no correlation between the existence of the death penalty and reduced crime rates. In fact, on the contrary some of the countries with capital punishment have much higher crime rates than countries which do not. As an example, the United States is one of the few Western democracies to still implement the death penalty, but it has a significantly higher crime rate and higher rates of incarceration or per capita prison population than say the Western European countries which have all abolished the death penalty.
President Maithripala Sirisena, as he approaches the end of his presidential term and very likely seeing the end of his period as first citizen, would be well advised to reconsider his headlong dash down the path of reintroducing the death penalty. He will be remembered for many things, including being the first challenger to electorally defeat an incumbent president and for the rainbow coalition he led to victory in 2015. The early gains of his presidency are not insignificant though perhaps overshadowed now by his own political makeover in seeking the political mantle of the Rajapaksa’s he defeated five years ago. But to leave a legacy of tarnishing one of Sri Lanka’s few gains in human rights in the past half century would be unwise and best avoided.