–Mario Gomez, Executive Director, International Centre for Ethnic Studies, Sri Lanka
In December 2018, the United Nations General Assembly (GA) voted overwhelmingly once again, for a universal moratorium on the use of the death penalty. 121 countries voted in favour, 35 voted against, and 32 abstained. This resolution was a sequel to several previous GA resolutions going back to 2007, where the world body had voted to enforce a moratorium against the death penalty. Sri Lanka voted in favour in 2016 and 2018, having previously abstained.
The GA resolution called on states to ‘establish a moratorium on executions with a view to abolishing the death penalty’ and to ratify the Second Optional Protocol to the ICCPR that seeks to abolish the death penalty. The 2018 resolution pressed states that have abolished the death penalty not to reintroduce it and encouraged states which have a moratorium to maintain it. 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.
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. 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.
Around June 2018, President Maithripala Sirisena announced that he proposed to revive the death penalty for those convicted of drug-related offences.
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. It was not known on what basis these four persons were selected as the ‘chosen few’ for the first executions after 43 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.
Since the signing of the warrants in June this year, two applications were filed in courts. The first in the Court of Appeal, sought a writ of prohibition against the Commissioner of Prisons from proceeding with executions. The second, a fundamental rights application in the Supreme Court, was filed by a prisoner on death row, with the support of other public interest petitioners including members of the clergy, and contended that the actions of the President would amount to a violation of Article 12 of the Constitution, the right to equality and equal protection of the law, and Article 11, the right against torture and cruel, inhuman or degrading treatment. On the 5th of July this year, the Supreme Court issued an interim order staying executions till the 30th of October, when the case will be called again.
On the 12th of July, a Private Member’s Bill was tabled in Parliament to abolish the death penalty. According to the Bill, the ‘reference in any law to the imposition of the death penalty or punishment by death, shall, from and after coming into force of this Act, be construed as punishment by imprisonment for life’. The Bill seeks retrospective application by including two transitional provisions. It states that ‘any person, in respect of whom a sentence of death has been imposed prior to the coming into force of this Act, shall be deemed to be a person sentenced to imprisonment for life in respect of such offence’. In addition, the Bill also contains a provision to the effect that ‘any person who has committed, prior to the coming into force of this Act, an offence punishable with death, but in respect of whom a sentence of punishment has not yet been imposed by court, shall be deemed to have committed an offence punishable with imprisonment for life’.
According to Amnesty International, 106 countries had abolished the death penalty by the end of 2018. In a recent ‘General Comment’, the UN Human Rights Committee stated that the phrase ‘the most serious crimes’ in Article 6 of the ICCPR:
must be read restrictively and appertain only to crimes of extreme gravity, involving intentional killing. Crimes not resulting directly and intentionally in death, such as attempted murder, corruption and other economic and political crimes, armed robbery, piracy, abduction, drug and sexual offences, … can never serve as the basis, …, for the imposition of the death penalty. … Mandatory death sentences that leave domestic courts with no discretion on whether or not to designate the offence as a crime entailing the death penalty, … are arbitrary in nature.
Hanging by a Thread?
The sanctity of life has emerged to trump what is seen today as an ancient and outdated mode of punishment and deterrence. Sentencing policy has shifted from a focus on punishment and retribution, to rehabilitation and reform of the offender. 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.
A presidential election must be held this year, and President Sirisena’s attempts to revive the death penalty for drug offences are part of an attempt to garner electoral support for his re-election.
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.
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.
Suggested Citation: Mario Gomez, The Death Penalty in Sri Lanka: Hanging by a Thread, Int’l J. Const. L. Blog, Aug. 8, 2019, at: http://www.iconnectblog.com/2019/08/the-death-penalty-in-sri-lanka:-hanging-by-a-thread
 UN General Assembly Resolution A/RES/73/175, December 2018 available at < https://www.un.org/en/ga/73/resolutions.shtml>.
 UN General Assembly Resolution A/RES/73/175, December 2018, Para 7 (h).
 Paras 8 and 9.
 Para 7 (f).
 See Section 296 of the Penal Code of Sri Lanka which prescribes the sentence for murder and Section 54A of the Poisons, Opium and Dangerous Drugs Ordinance where the death penalty may be prescribed for drug offences.
 See Ruki Fernando, ‘Death Penalty: License for Judicial Killings’, <https://groundviews.org/2019/06/28/death-penalty-license-for-judicial-killings/ >.
 Human Rights Commission of Sri Lanka, < http://hrcsl.lk/english/wp-content/uploads/2016/01/RECOMMENDATION-TO-ABOLISH-THE-DEATH-PENALTY-IN-SRI-LANKA-E-1.pdf>, 1st January 2016.
 ‘The Island’, 13th July 2019, pages 1 and 4.
 Human Rights Committee, General Comment No 36, CCPR/C/GC/36, 30th October 2018, para 35.
 Id. para 37.