15 August, 2022


Drugs & The Death Penalty: The Applicable Legal Regime

By Ruwan Laknath Jayakody –

Ruwan Jayakody

In what can only be described as yet another act of political redundancy, marked in equal measure by vertical dysfunction and barren impotence, sheer lunacy and the acceptance of abject failure in the administration of affairs of law and order that will in hindsight be seen as a self-righteous, coup de grace, the incumbent back to the medieval dark ages, castrated, flagellating Government of Sri Lanka on 10 July made the ill-intentioned goodly descent into literal hell, when it approved a proposal made by Executive President Maithripala Sirisena to enforce the capital punishment/death penalty in the form of death by hanging against convicted large scale major drug dealers, smugglers and traffickers. 

Section 52 of the Penal Code provides for death as a punishment. The Constitution in Article 13(4) holds that only a competent Court in accordance with the procedure established in the law can order the punishment by death. Section 285(1) of the Code of Criminal Procedure (CCP) Act, No. 15 of 1979 (with subsequent Amendments) notes that when a person is sentenced to death, it is the President that decides when (date) and where (location) the said convict is to be “hanged by the neck” till he/she is dead. 

A High Court is the Court of first jurisdiction which is vested with the authority and power to pronounce a death sentence. According to Section 286 of the CCP Act, upon pronouncement of a death sentence, the presiding trial Judge who passed the sentence (provisions are made in the case the latter is absent or unable) has to forward his/her notes of evidence and a report to the President which sets out his/her opinion as to whether there are any reasons why the said sentence should or should not be carried out, and spell those reasons out. Normally, the President thereinafter would inform the Court of his/her order (stay the warrant of execution or state the date, time and place of the execution) but in the case of the granting of pardons to those condemned to death, the President as per Article 34(1) of the Constitution, has to send the aforementioned Judge’s report to the Attorney General for advice, which in turn must be relayed to the Minister of Justice who will in turn forward the report with the latter’s recommendations, back to the President.

Under Section 54A of the Poisons, Opium and Dangerous Drugs Ordinance, the manufacture (of heroin, cocaine, morphine or opium), trafficking (the import or export of over 500 grams {g} of a dangerous substance), any drug related offence committed with the use of a firearm, and possession (again over 500g in connection with the intent to traffic) are offences which are liable to be punishable by a sentence of death. For the purposes of this law, manufacturing is understood to comprise of any process pertaining to the production of such a drug and the refining or the transformation of it to another while trafficking deals with selling/giving/procuring/storing/administering/transporting/sending/delivering/distributing. Abetting, attempting to commit or doing any act in preparation to or in furtherance of an offence under the aforementioned Section is dealt with in Section 54B of the Ordinance.

However, even if convicted of such offences as listed above, the death sentence cannot be imposed on persons below the age of 18, pregnant females, and those of unsound mind. In a similar vein, legal protection may also be afforded to those who though not insane are not capable of understanding the Court proceedings. Further, intoxication while providing a diminished capacity defence to be considered a statutory (enshrined in the Penal Code) mitigating factor when reducing an offender’s culpability in the case of reducing for an example the charge of murder to culpable homicide, does not act as a mitigating factor during sentencing for the crime. Jayathilake v. Attorney General (Appeal Number 8 of 2000 – Court of Appeal – 1 January, 2003) is a case in point.

Of Sri Lanka’s international obligations with regard to the matter at hand, it must be noted that the country is a State Party to the International Covenant on Civil and Political Rights (ICCPR) but not a Party to the Second Optional Protocol to the ICCPR, the aim of which is the abolition of the death penalty. Article 3 of the Universal Declaration of Human Rights holds that “Everyone has the right to life”. Although Article 6 of the ICCPR states that “Every human being has the inherent right to life” which is to be protected by law, it provides for the imposition of the death penalty “for the most serious crimes”. There is however a caveat, in that Article 6.6 of the ICCPR states that the aforementioned Clause providing for the imposition of capital punishment in specific instances cannot be “invoked to delay” or “prevent” the abolition of it by any State Party. Article 33 of the Constitution points out that the duty of the President is to not only ensure that the Constitution is respected and upheld but to also do all such acts and things required by international law. Moreover, although the right to life is not explicitly provided for in the Constitution or in statutes, case law in the form of local Supreme Court (SC) judgments has implicitly recognized such.

Also, the Human Rights Commission of Sri Lanka in a letter to the incumbent President sent in January 2016 has citing the SC judgment in the case Wijepala v. Attorney General (2001 – 1 SLR 42) where the apex Court identified that prosecutorial misconduct led to the conviction of an innocent pointed to the risk of miscarriages of justice occurring and the irreversibility of the capital punishment. Sections 191 and 192 of the Penal Code deal with giving or fabricating false evidence with the intent to procure a conviction of a capital offence and recognizes the very real possibility of an innocent thus convicted being executed.  

Elsewhere, dissenting in Bachan Singh v. State of Punjab (1983 – S.C.R {1} 145), then Indian SC Judge, Justice P.N. Bhagwati (subsequently the Chief Justice) was of the view that there was no doubt that the actual operation of the death penalty is discriminatory because “it strikes mostly against the poor and the deprived sections of the community”, adding further that “the rich and the affluent usually escape from its clutches”. 

The issues arising out of the delay of the execution of the death sentence have been dealt with by the United Kingdom’s Privy Council in Earl Pratt and Another v. Attorney General for Jamaica and Another (1993 – UKPC 37) and Riley v. Attorney General of Jamaica (1983 – 1 A.C. 719) and the Indian SC in Vatheeswaran v. State of Tamil Nadu (1983 – 2 S.C.R. 348), Sher Singh and Others v. The State of Punjab (1983 – 2 S.C.R. 582) and Smt. Treveniben v. State of Gujarat (1989 – 1 S.C.J. 383) as mentioned in Chamila Talagala’s article ‘Implementing Capital Punishment in Sri Lanka: Some Views and Jurisprudential Thought’.

The Constitution in Article 11 provides for the freedom from torture and/or punishment that is cruel, inhuman and degrading as an absolute right while Article 12 guarantees the right to equality and the equal protection of the law. In light of the aforementioned legal facts, the Government’s said addlepated move can be construed to constitute selective discrimination on the basis of criminality (the type of offence). The laws of the land tell an altogether different story. The supreme law of the land as enshrined in the Constitution does not allow for discrimination to be adopted as a practice in the enforcement of the capital punishment on death-row convicts.

The Executive, the Parliament, all organs of the Government, the Judiciary and the State are therefore by law duty bound as per the Preamble to the Constitution (Svasti) {assuring equality and the dignity and freedom of the individual} and the exercise of the sovereignty of the people (Article 4 of the Constitution) to respect, secure and advance the fundamental right of non-discrimination to which convicted drug dealers, smugglers and traffickers, big and small alike, are by law entitled to. Any veering away from the path thus laid, is a violation of the people’s sovereignty, for which there will be hell to pay.

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Latest comments

  • 3

    Thanks, Ruwan Laknath for a well-written article which supplements that written two days ago on the same subject:
    That one written by a Tamil; this by a Sinhalese. Many comments for those others. Almost none taking a racist line. You are the quintessential liberal, writing brilliantly but in a style difficult for many readers.
    Thanks for all those well-researched links to precedents.
    Yes, this move by My3 is reprehensible; the State we ushered in appears to be collapsing, but from the willingness of CT readers (unrepresentative as they may be) to recognise where justice resides, we can take heart.
    I feel that we must unite in our efforts to ensure that impartial law is observed and respected by all citizens. Progress needn’t be spectacular. Let us set ourselves the right goals and make haste, slowly.

    • 0

      You may have a Singhala father but a Tamil mother from the sound of it.

  • 2

    Thank you Ruwan Laknath Jayakody for the contribution to the drug-dealer death penalty debate. This is being floated as a way to solve the drug problem.
    Court ordered execution is premeditated murder. This is not acceptable.
    In our case, Philippines President Duterte’s action is used as the example of success. Duterte has NOT succeeded. Duterte has killed thousands of so-called drug addicts but not a single kingpin level drug dealer. When the cloud clears, business will be back. Thousands of unemployed are easily recruited to rebuild the distribution network.
    MS is understandably incensed when big hauls of drugs are intercepted. The imports/exports has to have connections. MS says that suspected drug handle continued business while in custody. This can only be done if helped in one way or another.
    This brings us to the rampant corruption/nepotism/impunity obtaining. He has to address this bane.
    As pointed out by Rowan (CJ India Bagawathy comment) it is always the poor who bear the brunt.

  • 2

    If the death penalty is enacted it will be the poor who will be hanged. The rich and influential will escape. As usual all this is due to a Government and society corrupt from the top to the bottom.

  • 2

    I am against the death sentence. It will be very easy to throw a small packet of heroin in to any property and then tip the police. So many innocent guys could be hanged due to such deliberate acts or due to mistakes.

    It better to let go a hundred real criminals free than hanging one innocent person.

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