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Drugs and the death penalty: The applicable legal regime

01 Apr 2021

In what can only be described as an act of political redundancy, marked in equal measure by sheer lunacy and the acceptance of abject failure in the administration of affairs of law and order that in hindsight can be seen as a self-righteous, coup de grace, the then “back to the medieval dark ages” Government of Sri Lanka on 10 July 2018 made the ill-intentioned, goodly descent into literal hell, when it approved a proposal made by then 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 as amended, 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 instance which is vested with the jurisdictional authority and power to pronounce a death sentence. According to Section 286 of the CCP Act as amended, 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 whether there are any reasons as to why the said sentence should or should not be carried out, and spell those reasons out. Normally, the President hereinafter would inform the court of his/her order (state 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 (AG) 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 as amended, 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 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 do any act in preparation to or in furtherance of an offence under the aforementioned Section is dealt with in Section 54B of the Ordinance as Amended. However, even if convicted of the 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 as a statutory (enshrined in the Penal Code) mitigating factor when reducing an offender’s culpability (in the case of reducing for example the charge of murder to culpable homicide), does not act as a mitigating factor during sentencing for the crime. Jayathilake vs. AG (per Justice G.W. Edirisuriya – 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 the 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. Sri Lanka voted in favour of the United Nations General Assembly Resolution 73/175 of 17 December 2018, supporting the moratorium on the use of the death penalty. 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 recognised such. Also, the Human Rights Commission of Sri Lanka (HRCSL) had in a letter sent to then President Sirisena in January 2016 cited the SC judgment in the case of Wijepala vs. AG (per Justices Ameer Ismail and President’s Counsel Mark Damien Hugh Fernando – 2001), where the apex court had identified that prosecutorial misconduct had led to the conviction of an innocent, and furthermore, the HRCSL had pointed to the risk of miscarriages of justice occurring, and the irreversibility of the capital punishment and the irreparable damage that will thereby result. Sections 191 and 192 of the Penal Code as amended deal with giving or fabricating false evidence with the intent to procure a conviction of a capital offence and recognises the very real possibility of an innocent thus convicted being executed.   Elsewhere, dissenting in Bachan/Machhi Singh vs. State of Punjab (1983) (which adopted the “rarest of [the] rare cases when the alternative option is unquestionably foreclosed” doctrinal formula standard for the imposition of the capital punishment/death penalty), Indian SC Judge Justice Prafullachandra Natwarlal 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 UK’s Privy Council in Earl Pratt and Another vs. AG for Jamaica and Another (1993) and Riley vs. AG of Jamaica (1983), and the Indian SC in Vaitheeswaran vs. State of Tamil Nadu (1983), Sher Singh and Others vs. The State of Punjab (1983), and Smt. Treveniben vs. State of Gujarat (1989) 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) 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. In this regard, this author along with Committee for Protecting the Rights of Prisoners General Secretary Wellage Sudesh Nandimal Silva were the petitioners who filed the first public interest fundamental rights petition 270/19 before the SC, followed by 14 similar petitions, challenging on procedural and substantive grounds, the decision of then President Sirisena to implement the capital punishment by signing the execution warrants of four death row prisoners convicted of drug-related crimes who were to then be hanged, and calling thereby for the halting of the proposed hanging. The petition listed the AG (both in lieu of the President, and also in his capacity as the AG), the Minister/s and Secretary/Secretaries in charge of the subjects of Justice and Prisons, the Commissioner General of Prisons, several Superintendents of Prisons (Bogambara, Mahara, and Welikada) and the Chairperson of the HRCSL as the respondents. The petitioners noted that if the death sentence is to be implemented, the President cannot target and select death row prisoners as per his choice and discretion, and must then implement it against all inmates on whom the death penalty has been imposed (including murderers, rapists, kidnappers, armed robbers) and not just those convicted for drug-related crimes. Otherwise, it is not fair to select only drug offenders as it violates the right to equality and the entitlement to equal protection under the law under Article 12(1). The petitioners also argued that this punishment is incompatible with human dignity and constitutes a severe infringement of the right to life. Further, it was argued that the process of recruiting hangmen was lacking in clarity, and that they have not been properly trained and nor have they studied the process. Also, on the humanitarian standards pertaining to the gallows, the petitioners had noted that the relevant measurements, and the assessment of aspects pertaining to the strength of the rope and the pain threshold levels, have not been approved according to the modern standards, and that it therefore violates the norms and values systems governing the extinguishing of a life.

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