The Solution to Drug Trafficking in Sri Lanka

Maru Sira (his real name being D.J. Siripala) died at Bogambara Prison in Kandy, on August 7 1975. He was executed by hanging, on the direction of the State. He had been convicted, in absentia, of the crime of murder. Controversy surrounded his execution: he was unconscious when he was taken to the gallows, he was laid on a stretcher across the trapdoor, with the noose around his neck. His slumped position and the shorter fall of just two feet and two inches, when the usual distance of the fall is six feet, reportedly caused death by asphyxiation as a result of a slow strangulation. If he had been standing, his death would have been instantaneous. It is reported that it took 18 minutes for him to die due to the manner in which his execution was conducted.

The horror of this execution has given Maru Sira much more publicity and status, perhaps, than if he had continued to live. His execution has assured for him a place in folk history, in art and in film, for the brutal way in which his life was taken away from him, under the aegis of the law.

Indeed, Sri Lanka has not executed anyone since 1976 and has been an abolitionist in practice. In this, Sri Lanka follows a global trend of shifting away from this cruel punishment. By the end of 2018, 106 countries in the world had fully abolished the death penalty in national legislation and 142 countries are now abolitionist in law and practice. There was a 31% decrease in known executions year-on-year in 2018; the lowest total Amnesty International recorded in the last decade. This excludes the thousands of executions that we believe continued to be carried out in China.

However, despite Sri Lanka’s history of not executing people, since July 2018 President Maithripala Sirisena has publicly expressed his resolve to resume executions in Sri Lanka after 43 years.

This announcement has been succeeded by a number of alarming actions with the intention of undertaking executions in the past six months. Quite apart from the departure from State practice for over four decades, the criteria for resuming executions in Sri Lanka, remains deeply problematic.

President Sirisena has stated from time to time that the first to be executed will be those who are (a) under sentence of death for drug-related offences; (b) engaging in drug trafficking from within prison and (c) are Sri Lankan nationals (this last criteria being included after it was discovered that four Pakistani nationals are convicted of drug-related offences but would not be included in the list). The Ministry of Justice is reported to have sent a list of 13 names to the President, on his request. It still remains unclear whether the unfortunate souls whose names are on the “death list” have been informed of the fact, or whether they are prepared for the fate that now appears to await them.

To add to this uncertainty, how the President will determine which death row prisoners have engaged in drug trafficking from within prison (which is a separate crime for which there should be a separate judicial determination) is also unclear. In order to ensure that the right to a fair trial is guaranteed, the determination of whether a person did indeed commit a crime cannot be by the prison authorities or by the Ministry of Justice, but by a court of law.

These are well-established principles, both in domestic law and in international law. Much ambiguity clouds the manner in which the 13 persons were selected for execution. As of February 2019, 48 persons on death row were sentenced on drug related offences, despite the fact that drug-related offences do not meet the threshold of the “most serious crimes” to which the death penalty must be restricted under international law in countries where this punishment has not yet been abolished. Moreover, at least six new death sentences were handed down in 2018 for drug related offenses.

Like most countries, the criminal justice system in Sri Lanka is far from perfect and torture and other abuses in custody are rampant. This has been highlighted by the Human Rights Commission of Sri Lanka in its report to the Committee against Torture in 2016, when it submitted as follows:

“torture is routinely used in all parts of the country regardless of the nature of the suspected offence for which the person is arrested. For instance, those arrested on suspicion of robbery, possession of drugs, assault, treasure hunting, dispute with family/spouse, have been subjected to torture. The prevailing culture of impunity where those accused of torture is concerned is also a contributing factor to the routine use of torture as a means of interrogation and investigation.” Human Rights Commission of Sri Lanka, 2016

In addition, both the Human Rights Commission of Sri Lanka and the UN Special Rapporteur on the Independence of Judges and Lawyers, have highlighted other problems within the criminal justice system, which point to a possibility that due process safeguards and the right to a fair trial may be violated in Sri Lanka. Studies from different countries also show that people from less advantaged economic backgrounds, and those belonging to racial, ethnic or religious minorities disproportionately carry the weight of the death penalty. The Office of the High Commissioner for Human Rights (OHCHR) has similarly warned that the death penalty disproportionately affects those living in poverty.

But an additional problem arises when one considers whether drug-related crime would be resolved by executing anyone. There is no evidence to show that death penalty has a unique effect in reduction of crime. In fact, there is evidence that other countries are coming to such a realisation. In Iran, for example, the use of the death penalty for drug related crimes was reduced in January 2018, in an acknowledgment that the death penalty does not deter drug offences- by a State which has a trend of high numbers of executions for a variety of crimes.

In relation to offenses related to drugs, not only is the death penalty in violation of international law and standards, it also will have little effect on the very issue it seeks to resolve.

Answers to address problems associated with drug trafficking must be sought elsewhere. The UN Office on Drugs and Crime has illustrated how, despite heavy penal laws, drug trafficking is a booming business while human rights violations have become widespread in the so-called “war on drugs”. Despite heavy penalties, including the death penalty, punitive drug policies have been recognised by UN bodies as ineffective in reducing drug trafficking or in addressing problems associated with the use, production and sale of drugs, “and continue to undermine the human rights and well-being of persons who use drugs, as well as of their families and communities.”

A crucial element to find real and lasting solutions to the problems posed by drug trafficking lies in addressing the root causes of the problem. Governments should pay particular attention to the underlying socio-economic factors that are leading people to engage in the drug trade, including ill-health, denial of education, unemployment, lack of housing, poverty and discrimination. By putting the protection of public health and human rights at the centre of drug policies, governments could also be in a much better position to address other long-standing concerns, such as ensuring equality and non-discrimination, and avoiding the violence associated with illicit drug markets.

It is equally important to address the deep-rooted injustices in criminal justice systems that are leading to disproportionate impacts on marginalised groups. In this sense, a decisive step is to end the death penalty for drug related offenses as a first step towards the full abolition of this cruel punishment. Moreover, governments should also look into amending its criminal laws and consider implementing alternatives to the criminalisation of minor and non-violent drug offences that are mostly affecting people from marginalised groups, often women and people from racial, ethnic or other minorities.

Certainly, the illicit drug market has provided enormous corrupting power to organised criminal gangs that need to be addressed. But as long as governments fail to invest in policies that truly put the protection of health and human rights at the centre, the blanket prohibition of drugs will continue to be a war on people affecting particularly the poorest and most marginalised sectors of society.

To bring back executions would not only be an indictment on our society- it would also be a dark moment in the history of Sri Lanka, one that we would be loath to explain to future generations. Instead of focusing on punitive and repressive responses to tackle the problems associated with drugs, the Government should explore new regulatory models that truly put the protection of health and human rights at the centre of State policy.