Dr Deepika Udagama, Chairperson of the Human Rights Commission of Sri Lanka (HRCSL) has urged President Maithripala Sirisena to ‘do away with the decision to re-implement capital punishment.’
Udagama, in this letter, while referring to an early missive to the President (date January 1, 2016) where the Commission called for the abolition of capital punishment, has nevertheless backed off from that position, calling only for ‘non-implementation’. The Commission instead recommends ‘a series of strong and long term policies including strengthening of institutions and procedures aimed at addressing serious crimes including drug trafficking.
The full text of the letter is given below.
His Excellency Maithripala Sirisena
President of the Democratic Socialist Republic of Sri Lanka
Re : Proposalto Re-!mplement Capital Punishment
We have been made to understand during the past few days through media reports that Cabinet approval has been granted to re-implement capital punishment against those drug traffickers who have been convicted and are under death sentence and that the government agrees to implement capital punishment with immediate effect on those convicts who continue to engage in drug trafficking while being in prison. The Human Rights commission expresses its deep concern regarding this development.
The Commission by its letter dated 01 Jan 2016 conveyed to Your Excellency its detailed recommendation that Sri Lanka should abolish capital punishment (annexed). We had stated therein that capital punishment is a thoroughly cruel and inhuman punishment; it amounts to severe infringement of the right to life, right to be free of cruel and inhuman punishment and a host of other human rights; and that capital punishment should be abolished since it is an ineffective, extreme and irreversible form of punishment that does not help reduce crime.
We agree that drug trafficking gives rise to severe social problems, especially that addiction to drugs on the part of the younger generation poses a grave threat to the future generations of the country, and that, therefore, drug traffickers can be recognized as persons engaged in an egregious anti-social activity. Yet, it is our opinion that this process can be curtailed not by re-implementing ineffective forms of punishment such as capital punishment, but by bringing drug dealers before the law in an efficient manner and imposing other forms of serious punishments depending on the nature of the crimes they have committed.
lf those already convicted and imprisoned for drug trafficking still continue to engage in drug trafficking while being in prison through contact with the outside world via the use of modern technology, the appropriate solution is to strengthen the security arrangements in the prisons using modern technological methods. Also, it is necessary to exercise constant vigilance over officials who may be involved in these activities and bring them before the law. Further, it is a well known fact that drug trafficking has reached such high proportions mainly due to assistance received by major drug dealers through political connections and also from certain elements within the law enforcement establishment. We are convinced that the drug menace cannot be successfully eradicated in the long run through instant and ineffective solutions such as the re- imposition of capital punishment without addressing the root causes.
Further, we observe a new trend in society whereby certain sections of society are now questioning the strong public support of capital punishment hitherto prevalent in Sri Lanka. We observe that this is due to the fact that confidence placed in administration of justice in Sri Lanka is eroding.
In the recommendation we made in 20L6, we pointed out that the abolition of capital punishment is a contemporary trend among a majority of countries in the world. Despite capital punishment being a part of our statue book, non-implementation of death sentences since 1976 had earned international commendation for Sri Lanka. Furthermore, Sri Lanka voted in support of a resolution calling for a moratorium on executions adopted by the UN General Assembly in 20L6. It is inevitable that the international recognition Sri Lanka earned by embarking on the path of democracy would see a backward slide if policies such as re- implementation of the death penalty are adopted.
Therefore, the Human Rights Commission of Sri Lanka earnestly and respectfully urges Your Excellency to do away with the decision to re-implement capital punishment and instead implement a series of strong and long term policies (including strengthening of institutions and procedures) aimed at addressing serious crimes including drug trafficking.
Dr. N. D. Udaganta
Human Rights Commission of Sri Lanka
His Excellency Maithripala Sirisena
President of the Democratic Socialist Republic of Sri Lanka
RECOMMENDATION TO ABOLISH THE DEATH PENALW IN SRI LANKA
We extend to Your Excellency our warm wishes for the New Year.
We take this opportunity, on this auspicious day, to recommend the abolition of the deathpenalty in Sri Lanka in keeping with Sri Lanka’s commitment to a more humane society consonant with human rights principles and values.
ln terms of the Human Rights Commission of Sri Lanka Act No. 2L of 1996, the Human RightsCommission of Sri Lanka is required by Section 10 (c) and 10(d) of the said Act, among otherthings, to advise and assist the government in formulating legislation and administrative directives and procedures in furtherance of the promotion and protection of fundamentalrights and to make recommendations to the Government regarding measures which should betaken to ensure that national laws and administrative practices are in accordance withinternational human rights norms and standards.
The Human Rights Commission wishes to bring to Your Excellency’s and the Government’sattention its recommendations regarding the abolition of the death penalty, which theCommission views is imperative for Sri Lanka in recognition of the growing global recognitionthat the death penalty seriously violates several human rights including the right to life andfreedom from cruel and inhuman punishmen| is an extreme and irreversible punishmenU andis ineffective as a deterrent to crime. Sri Lanka should demonstrate its commitment to the sanctity of life and fundamental human rights principles by joining the more than 100 nationsin the world that have abolished the death penalty thus far. Another 60 countries do not carry out death sentences in practice.
lnternational human rights obligations of Sri Lanka clearly discourage the death penalty. Article3 of the Universal Declaration of Human Rights enshrines the sanctity of human life by affirmingthat everyone has the right to life, liberty and security of person, whilst Article 6 of the lnternational Covenant on Civil and Political Rights strongly suggests that abolition of the deathpenalty is desirable.
Your Excellency’s attention is drawn to the Second Optional Protocol to the lnternational Covenant on Civil and Political Rights, adopted by the UN General Assembly by resolution 44/128 of 15th December 1989 which calls forthe abolition of the death penalty. lts Preamble declares that the abolition of the death penalty contributes to the enhancement of humandignity and progressive development of human rights. ln keeping with Sri Lanka’s commitmentto improving human rights protection in the country we recommend that Sri Lanka accede to the Protocol and take steps to abolish the death penalty.
Whilst appreciating that from 7976, successive governments in Sri Lanka have not implementedthe death penalty, the Commission notes that courts continue to impose the death penaltyunder several statutes which provide for the imposition of the death penalty, including thePenal Code and the Poisons, Opium and Dangerous Drugs Ordinance as amended by Act No. 13 of 1984.
ln view of international and comparative jurisprudence, the Commission agrees with theposition that the death penalty amounts to cruel, inhuman and degrading punishment andfails to respect the sanctity of human life. The Supreme Court of Sri Lanka has held thatalthough there is no express fundamental right to life , nevertheless that such a right is impliedin the 1978 Constitution of Sri Lanka. Article 11 of the 1978 Constitution prohibits without anyreservation torture as well as cruel, inhuman and degrading treatment or punishment.
The Commission seeks to place before Your Excellency and the Government the following factors which should be considered in abolishing the death penalty:
i) Death Penalty as a deterrence to crime
Many proponents of the implementation of the death penalty have urged itsimplementation as a deterrence to crime. However, it is our view that it is aneffective justice system and a just social order that lead to a reduction in crime, as isseen in countries which have some of the lowest crime rates. There is no empirical data, to show that death penalty has caused a reduction in crime or has a deterrent effect on crime.
ii) The risk of miscarriage of justice and the irreversibility of capital punishment
Despite constitutional safeguards, including the appeals process andrecommendations being called from the trial judge, the Attorney General andMinister of Justice, it is the view of the Commission that there is always the risk ofinnocent persons being executed for crimes which they did not commit.
It is the view of the Commission that in view of the serious flaws which exist in the criminal justice system coupled with Sri Lanka, unlike other countries, not having aprocess permitting the reopening of a criminal case after exhaustion of the appealsprocedures, there is a serious risk of a miscarriage of justice. Although due process in criminal proceedings are guaranteed by the Constitution and statutory law, there is always the possibility of human error distorting the final outcome.
The Commission wishes to place before Your Excellency that there have beenseveral instances, in countries including those of the developed world, where alsodue to new investigation techniques and development of technology, fresh evidencehas surfaced or doubts raised about the integrity of evidence many years after conviction. ln the United States , Canada and the United Kingdom there have beenseveral occasions where people wrongly convicted have been released from death row or prison decades later, the most recent being a U.S. man who was released inNovember in Louisiana after serving 23 years in prison for several crimes, becausethe judge found he did not obtain a fair trail. The lead investigator and the judge inthe original trial said they believe his conviction was a “miscarriage of justice”.Similarly, the Commission notes there are allegations of prosecutorial misconductleading to conviction of the innocent in Sri Lanka. Such an instance is highlighted inthe Supreme Court Judgment of Wijepolo v Attorney General (2001) 1 SLR 42.
iii) Accused not being properly defended
The Commission is also of the view that the chances are that accused from underprivileged circumstances would be more prone to be subjected to the deathpenalty than those who have the financial means to hire competent counsel. There is a possibility of certain accused being convicted not due to their guilt but due tobeing improperly defended. ln the High Court where accused are financially unable to retain counsel, the State assigns counsel from the private bar at random, who often tend to be young, untrained, inexperienced and not sufficiently remunerated.
For all of the above reasons the Human Rights Commission recommends that Sri Lankaratifies the Second Optional Protocol to the ICCPR and abolishes the death penalty forthwith.The death penalty should be substituted with periods of imprisonment that befit theieriousness of each crime. Accordingly, we recommend that commutation of periods ofimprisonment for such crimes also be done according to a national policy that takes intoconsideration the serious impact of such crime on society.
Dr. N.D. Udagama,
National Human Rights Commission of Sri Lanka.
Cc: Hon. Prime MinisterHon. Speaker
Hon. Leader of the OppositionHon. Minister of Justice