Sri Lanka: Executions under Executive Presidency

N Sathiya Moorthy  1 July 2019

It is anybody’s guess why and how President Maithripala Sirisena got to sign the death-warrants of four big-time drug-offenders, as he has declared since. In modern democracies, Constitutions reserve the right of considering ‘clemency pleas’ of death-row convicts, not the formal clearance of their execution. That has mostly remained the job of an impartial judiciary. In contemporary Sri Lankan context, this has added implications when Prime Minister Ranil Wickremesinghe, post-19-A, has since disagreed with the President’s decision.

Call it a relic of the forgotten monarchy, which in the case of Sri Lanka dates back to centuries, not just years or decades, as may be the case in some other nations. If nothing else, the same Executive authority was not to have been conferred the constitutional powers to order execution and clemency at the same time. Again, that right rests with appellate courts in modern judiciary.

Now that petitions have been moved before the Court of Appeal (CA), challenging the President’s order for executing court-ordered death-penalty on four of many more condemned prisoners, the judiciary is seized of the matter. It is going to take its own course and time, going all the way up to the Supreme Court. Thechances are no finality may be reached before the commencement of the presidential poll campaign, late(r) this year.

Challenging sovereignty

Needless to reiterate, most western nations and rights groups like Amnesty International (AI) have been opposed to Sri Lanka’s re-introduction of death-penalty, which has been kept in the limbo for decades now. Many of them, including the UK, Norway and Canada, have expressed their opposition to what should be considered as a sovereign decision of the Sri Lankan State but is being dismissed as Sirisena’s personal decision – or, so it seems.

Some nations among the critics of the Sri Lankan move have also cautioned against future cooperation in investigation into big-time drug-offences, in which the nation is an international conduit. If it is a ‘liberal way’ of challenging the nation’s sovereignty more than already shared with international organisations like the UN, such subterfuge needs to be condemned squarely. Such trends should be abhorred and should be challenged, through word, deed and action.

It is not without reason. Rather, the question is if in the process of the so-called war-crimes probe inside the country, the Sri Lankan State seeks the extradition of suspected war-criminals hiding in some of those nations, at times under changed identities, are they going to argue against the request, citing the existence of death-penalty in the nation’s statues?

Or, are they then going to codify ‘my terrorists and other terrorists’, and let go off some while hunting down others for Sri Lanka’s sake? No marks for guessing. If there is any belonging to the first category, it would be LTTE ‘warriors’ from the past, the latter could be personnel of Sri Lankan armed forces. Post-Easter blasts, other possibilities too remain.

In a ‘liberal’ – or, ‘liberated’? – world-order, death-penalty may have to go, and the right for life and living may have to be re-asserted, time and again. Most democratic, and not-so-democratic, Constitutions have also made ‘right to life and liberty’ as among the guaranteed Fundamental Rights for citizens and at times non-citizens, too, under specific circumstances.

Does it then flow that the State should not reserve for itself the right to take away such lives, for heinous acts, including ‘war-crimes’, which they condemn in no uncertain terms? More importantly, what do these nations do when the ‘offender’ on this score is a bigger fellow-nation, say, the US, again, in this case?

Do they stop with formally condemning such decisions of US courts/Executive, or do they throw up veiled threats not to cooperate in crime-detection in future, where death-penalty is among the prescribed penalties? That is to say, does prescribed penalty becomes the yardstick for measuring crimes under western liberal jurisprudence?

Will it apply in the reverse, say, for instance, Sri Lanka were to argue that certain actions by third-nation suspects hiding in the country were not crimes under local laws, and refuse to apprehend or extradite such persons to nations that they want the offenders to stand trial in their courts? Already, Prime Minister Ranil Wickremesinghe is on record that the security forces could do nothing about IS cadres returning from the Syrian war-front as that by itself was not an offence punishable under Sri Lankan laws, at least as yet?

Can such questions apply to British or Canadian or Norwegian IS offenders, if any, from the Syrian war-front, who, for argument-sake, take refuge in Sri Lanka, and those nations want them extradited? Already, western ‘liberalism’ has led to a skewed approach to extradition laws and requests. Worse still are the black-money and bank-secrecy laws, where nothing less than 9/11, that too committed  on the all-too-powerful US soil, post-Cold War, alone could obtain certain concessions for affected nations and their prosecution agencies – yet, on a case-by-case, nation-by-nation basis.

Politics of Prez polls

After motivating him, prodding him and backing him to win the presidential polls of 2015, western nations seem to be unhappy with the choice of Sirisena, since. Their public posturing against the twin ‘constitutional crises’ that President Sirisena had engineered and executed late last year, bears testimony. Now, on an apolitical issue as death-penalty, they discover a newer Sirisena, still – or, so is it becoming obvious and real.

For a modern-day political leader of long-standing in the country, Sirisena is a religious conservative. It was known to those in Sri Lanka, who were thinking in and/or for Sri Lanka, not to others, who were thinking and acting on other motives and considerations, then and now. The question today is this: Who is more ‘Sinhala-Buddhist’ (nationalist or otherwise) between the two, Sirisena or incumbent Mahinda Rajapaksa, whom he had defeated in Elections-2015?

The fact is that both leaders, as also their present-day common political adversary in PM Wickremesinghe, or others, either not in the limelight just now or waiting for the same to fall on them, have been using religion and ethnicity to fight their political battles and fend of electoral competition. It is equally true of ethnic issues of the Tamil, and now Muslim, kind.

However, the credit, if it can be dubbed as one, for using an imaginative, yet conservative constituency-driven public issue as an electoral plank should go to Sirisena. In real terms, this is what his ‘death-penalty’ warrants boil down to, especially in an election year.

On the one hand, the Buddhist clergy would have no problem giving their blessings, openly or otherwise. If nothing else, they cannot be seen contesting or opposing it. Given perceptions that the clergy would want a strong ‘Sinhala-Buddhist’ leader with a tough exterior to show off to the minority ethnicities and the international community together, this may be Sirisena’s way of deflecting, though not hijacking, such an agenda attaching to the Rajapaksas.

Then there is the larger women constituency, cutting across religions, castes and ethnicities. In most cases, they also overlap and/or intertwine with that of the middle-class voter mentality, without reference to gender. They are all opposed to drug-abuse and drug-peddling, starting with schools and campuses, street-corner pushers and high-end pubs and joints.

To this constituency, which in effect, means the majority of the nation’s electorate, do not want their children, spouses and neighbours spoilt and rendered wastrels. They have come to conclude that the existing laws and their execution have not served the purpose. They may not want it, but they would not mind it, if a couple of drug-offenders are send to the gallows, as long as they are not their own kith and kin.

Considering that post-blasts, there is a greater apprehension of a return of terrorism of the IS kind, in the place of the dreaded LTTE but with a broader reach and better out-reach in this IT era, death-penalty for terror-killers, if caught, may be a prescription that many in the civil society too cannot abhor, at least in private. The security agencies of the nation can do with a lethal law, if that would ensure that they would not have to go to war and stand before war-crime courts, now or ever.

No unilateral powers?

Yet, the ultimate question pertains not to the relevance and need for death-penalty, but to the powers for the Executive President, as it stands today, to sign off death warrants, unilaterally, and maybe withdraw the same, again unilaterally. In neighbouring nations like India, there are recorded Supreme Court decisions, dating back to the days of Indira Gandhi assassins, where the constitutional powers of the nation’s President, to decide on clemency petitions of death-row convicts, were ruled as being ‘objective’ and not ‘subjective’.

Interpreted in common man’s lingo, it means that in India, the President cannot act unilaterally in the matter, but has to act on the ‘aid and advice of the Council of Ministers with the Prime Minister as the head’. The assumption, as also the reality, is that the Indian Council of Ministers, acting through the Union Cabinet, has always been guided by bureaucratic inputs in the matter, with no cause for concern about the politicisation of such decisions.

It is thus that decades after the ‘Rajiv Gandhi assassination’, the Government of India has been fighting shy of granting freedom for the jailed assassins, despite repeated court advisories (not orders, again), and also political demands and public protests in southern Tamil Nadu. Independent of political affiliations of the party in power at the Centre, no Government or Prime Minister has been willing to remove the ban on the LTTE, declared unlawful after the Rajiv Gandhi assassination.

Once again, thus, the Rajiv Gandhi assassins have gone to the courts, seeking freedom. Once again, the Union of India has notified the appointment of a tribunal under an incumbent Judge of the Delhi High Court, to review the need, if any, to lift the ban on LTTE. It is a bi-annual exercise that the Centre has been initiating for the past two-plus decades and also extent the ban — as recommended by the said tribunal.

Thankfully, in the Westminster form of Indian democracy, the President does not have powers to sign death-warrants, that too during long run-ups to elections. Beyond a point, even the Prime Minister, whatever the strength of his parliamentary majority, too does not have such inherent powers, though he or she may take political positions on the poll-eve – nothing more, nothing less!

Consulting Cabinet, party

PM Wickremesinghe has since stated his position on the issue of ‘death penalty’ – and is opposed to the same. It is still anybody’s guess if he or anyone else in the Government raised the issue in weekly Cabinet meetings since Sirisena flagged his position months ago – or, even informally with the President, otherwise.

If so, what was Sirisena’s reaction? If not, why not? The question is if Wickremesinghe too was waiting for Sirisena to go public with his signing the warrants of execution for four of the condemned prisoners, before making a political issue of the same, or sing the tune for ‘western liberals’ inside the country and outside to hear. As is known, not everyone in his party too need not (have to) back him on this score, both in terms of larger issues and/or in terms of constituency concerns.

Is it also because not only Wickremesinghe but also Mahinda R said that opposition to death-penalty was their ‘personal view’? Yet for popular leaders like them to peddle personal views without consulting their parties is just not on. It is more so, considering that they too have the presidential polls to face as parties, where incumbent Sirisena has declared his intention to seek a second term and has already sounded the bugle on one specific issue that he at least seems to hope, can split the voters – and in his favour.

 (The writer is Director, Chennai Chapter of the Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. email: sathiyam54@nsathiyamoorthy.com

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