The debate over the death penalty has once again returned to the forefront in Sri Lanka following the recent death sentences imposed on former Defence Secretary Hemasiri Fernando and former Inspector General of Police Pujith Jayasundara over their failure to prevent the 2019 Easter Sunday terror attacks, bringing renewed attention to a punishment that remains firmly embedded in the country’s law despite not having been carried out for nearly five decades.

The Colombo Permanent High Court Trial-at-Bar on 31 July sentenced Fernando and Jayasundara to death after finding them guilty of criminal negligence in connection with their failure to act on intelligence received ahead of the Easter Sunday attacks, which killed more than 260 people. The decision was reached by a majority of the three-judge bench, with one judge dissenting, while both former officials have retained the right to appeal. 

Although the verdict has once again placed capital punishment in the public spotlight, Sri Lanka’s relationship with the death penalty has long been contradictory. The punishment continues to be prescribed by law and courts continue to impose death sentences, but the country has maintained a moratorium on executions since 1976. 

Section 296 of the Penal Code continues to stipulate death as the punishment for murder, meaning that the sentence remains an integral part of the criminal justice system even though it has effectively been converted into a non-executed punishment through successive governments’ reluctance to carry it out. 

The latest debate, however, goes considerably beyond the question of whether Sri Lanka should resume executions. It raises the more fundamental issue of whether the death penalty can actually reduce serious crime in a country where questions have repeatedly been raised over the quality of criminal investigations, the enforcement of existing laws, delays within the justice system, prison administration, and the ability of organised criminals to continue operating despite incarceration.

Speaking on the issue, senior lawyer Sampath Perera questioned the basic idea that implementing capital punishment would result in a reduction in crime, arguing that Sri Lanka’s priority should instead be to make its existing criminal justice mechanisms function in a more systematic and effective manner.

According to Perera, the country already has laws and institutions established to deal with criminal activity, but the effectiveness of these laws depends on whether the institutions entrusted with implementing them actually perform their functions properly. 

Therefore, merely increasing the severity of punishment without addressing deficiencies within the existing system would not necessarily deliver the reduction in crime expected by those advocating the implementation of capital punishment.

“The death penalty will not reduce the number of crimes,” Perera said, stressing that what was required was a systematic approach to law enforcement, together with a proper mechanism that would ensure that existing institutions operated according to the laws already in place.

His argument places greater emphasis on the certainty and effectiveness of law enforcement than on the severity of punishment itself. From this perspective, the effectiveness of criminal law cannot be measured merely by the maximum sentence available to a court, but by whether crimes are properly investigated, suspects are identified through credible evidence, prosecutions are conducted effectively, and those responsible are brought before the law without undue delay.

Criminal justice system ‘not foolproof’

Former Minister of Justice Ali Sabry, PC also cautioned against an immediate return to executions, arguing that the issue required a much broader discussion encompassing the shortcomings of Sri Lanka’s criminal justice system as well as the consequences of such a policy decision.

“This can’t be done overnight. There has to be a proper discussion on this and the pros and cons have to be considered,” Sabry said, noting that many progressive jurisdictions, particularly countries within the European Union, had moved away from capital punishment.

Sabry also pointed to possible consequences for Sri Lanka’s international relations and trade arrangements, including the potential implications for the European Union’s Generalised Scheme of Preferences Plus (GSP+) concessions, recalling that similar concerns had emerged when former President Maithripala Sirisena attempted to revive executions during his tenure.

While acknowledging these concerns, Sabry did not dismiss the frustration that had fuelled public demands for stronger punishment, particularly in relation to large-scale narcotics trafficking. He noted that major drug traffickers and the enormous social consequences associated with the illegal narcotics trade presented a serious challenge that could not simply be disregarded in discussions surrounding punishment.

However, he identified the reliability of Sri Lanka’s criminal justice process as one of the most important considerations that would have to be addressed before the country contemplated implementing an irreversible sentence.

“Our criminal justice system is not foolproof,” Sabry said, pointing out that judges were required to decide cases on the basis of the material presented before them, whereas investigations and the collection of evidence were largely undertaken by the Police and other investigative agencies.

Sabry noted that there had been instances in which substances or evidence had allegedly been introduced or altered, maintaining that these realities made it necessary to examine the entire investigative process before deciding whether the State should exercise the power to execute a person following conviction. 

He said there was merit in opening a debate on the death penalty but emphasised that numerous aspects of the justice system would have to be considered before it could actually be implemented.

He further argued that investigations should be subject to greater judicial supervision, while investigators themselves needed better remuneration, appropriate investigative tools, professional training, and continuous scrutiny to ensure that investigations were conducted according to law.

“As lawyers, we know that investigators can either make or break a case,” Sabry said, warning that in such circumstances the immediate implementation of the death penalty “could be quite dangerous”.

Sabry’s concerns highlight one of the most difficult aspects of capital punishment: unlike other criminal penalties, an execution cannot be remedied if a conviction is subsequently found to have been unsafe. 

A person serving a prison sentence can be released if fresh evidence establishes a miscarriage of justice, while an erroneous conviction can be overturned through the appellate process. Once an execution has been carried out, however, no subsequent judicial finding can restore the life that has been taken.

‘Going back to a primitive society’

Social activist Sajini Uyangoda, meanwhile, rejected the death penalty as a solution to Sri Lanka’s crime problem, arguing that resorting to executions would represent a regression in society rather than an advancement of the criminal justice system.

“The death penalty will not be a solution. It will take us back to a primitive society, like during the era of kingdoms,” Uyangoda said, maintaining that the Government should instead concentrate on establishing an effective institutional system and a proper mechanism through which the law could be implemented.

According to Uyangoda, responding to serious crime through execution risks diverting attention from the failures that allow crime to flourish in the first place. If law enforcement, governance, and the mechanisms responsible for preventing and investigating crime were not functioning effectively, she argued, the existence of an extreme punishment at the end of the judicial process would not resolve those underlying weaknesses.

She also questioned the effectiveness of extremely punitive approaches to narcotics by drawing attention to the Philippines, which became internationally known for the controversial anti-drug campaign conducted under former President Rodrigo Duterte.

Uyangoda questioned whether the Philippines could today be described as a country free of illegal drugs despite the enormous human cost associated with Duterte’s campaign, using the example to challenge the assumption that severe or lethal measures necessarily eliminate the social problem they are intended to address.

Her comparison is particularly relevant because the Philippines continues to undertake substantial anti-narcotics operations. 

Philippine authorities reported in July that more than 206,000 people had been arrested and narcotics worth PHP 122.53 billion seized during the first four years of the current Marcos administration, demonstrating that the illegal drug trade continues to require extensive law-enforcement intervention despite the severity of the Duterte-era campaign.  

The Philippine Government itself now describes its strategy in terms of a combination of law enforcement, prevention, treatment, rehabilitation, and community-based programmes rather than relying solely on punitive enforcement.

The Duterte campaign also remains the subject of serious international legal scrutiny. In April this year, the International Criminal Court confirmed charges against the former Philippine President relating to alleged crimes against humanity arising from killings associated with his anti-drug campaign, clearing the way for the case to proceed to trial.

Severity of punishment vs. certainty of justice

The views expressed by Perera and Uyangoda converge on one central point: Sri Lanka’s response to serious crime cannot be separated from the effectiveness of the institutions responsible for enforcing its existing laws.

The argument is particularly relevant in the context of deterrence, which remains one of the principal grounds advanced by supporters of capital punishment. While the threat of death is assumed to discourage potential offenders, the deterrent effect of any punishment also depends on whether a person contemplating a crime believes that there is a realistic possibility of being detected, properly investigated, prosecuted, and convicted.

If an offender believes that weaknesses within the investigative process can be exploited, witnesses can be intimidated, proceedings can be delayed, or criminal operations can continue even from within prison, the severity of the eventual sentence may have considerably less influence over criminal behaviour than the certainty that the justice system will identify and successfully prosecute those responsible.

This is particularly relevant to Sabry’s observations regarding major drug traffickers. Although he said he had been brought up with values opposing capital punishment and had previously gone before court when attempts had been made to revive it, his experience in government had also left him frustrated by the ability of major narcotics operators to continue their activities while within the prison system.

Sabry said such individuals were able to exploit loopholes and suggested that the country should at least be prepared to discuss how the most serious repeat narcotics offenders should be dealt with, including whether capital punishment could be considered under exceptionally stringent conditions.

Sri Lanka’s five-decade moratorium

Sri Lanka has not carried out an execution since 1976, although death sentences continue to be imposed. The present position therefore amounts to a de facto moratorium rather than legal abolition, leaving capital punishment available within the country’s criminal law. 

The recent sentences against Fernando and Jayasundara once again demonstrate the distinction: the punishment remains legally available even though Sri Lanka’s longstanding practice is not to carry it out. 

The country came particularly close to changing that position in 2019, when then President Sirisena announced plans to resume executions, primarily targeting convicted drug traffickers. The proposed move triggered domestic and international opposition as well as litigation, and executions ultimately did not resume.

The debate has nevertheless persisted, particularly during periods when violent crime or narcotics-related activity dominates public attention. Calls for the implementation of capital punishment tend to become stronger following crimes that generate widespread anger, with proponents arguing that the existing penalties have failed to provide sufficient deterrence.