ANTI-GANG LAW BEFORE THE CAPITAL PUNISHMENT
In Sri Lanka, numbers of highprofile reputed criminal gangs are largely operating in the provinces of Northern and Southern with blessings of prominent politicians in power. The trend has led Sri Lanka to become the main illegal cocaine and heroin hub in Asia. Currently, some notorious criminal gang members are operating outside the Sri Lanka jurisdiction as well. The intergovernmental Financial Action Task Force (FATF) has listed Sri Lanka among eleven ‘high risk and monitored jurisdictions’in money laundering. This type of criminal gang members are connected to international mafia groups, and they sell illegal firearms, involve in kidnap, ransom or extortion cases and highly connect to major drug dealings in the country. Most of these facts were revealed when the underworld criminal gang kingpin Makandure Madush and 30 other suspected criminalists were arrested in Bur-dubai. This arrest was made easy for the intelligence services in both Sri Lanka and UAE on a tip-off given by a rival gang member in the same business. The million worth party was organized by Madush in one of his residence in Bur-dubai, and they were hiding in the Gulf region for many years escaping from police arrest.
Immediately after arresting Madush in Bur-dubai STF commandos conducted several search operations throughout the island without a search or arrest warrant and successfully arrested Madush’s fellow members and recovered several luxury vehicles belonging to the gang. In another incident Police arrested gang leader Kanjpani Imran’s accountant who managed his illegal money. The only question that comes to the mind of a reasonable person is why the police waited such a long time to arrest or given freedom for the gangs to commit various dangerous crimes on this island. A common feature to the criminal gang leader is donating millions of illegal money to religious organizations and charitable institutions to cover up their bad character.
If anyone carefully analyzes the history of these gang members or IRC people in Sri Lanka the initial result is 90% of them are army or police deserters. In the second stage they form criminal gangs and connect to regional and national politicians of the country to assist their election campaigns. One of the best example, when the gang leader Gonawala Sunil was given the presidential pardon in 1981 he became the coordinator of a powerful minister and freely continued his criminal activities in that area. Later he was appointed all island Justice of Peace by the Minister of Justice without looking at his previous character. Most of the politicians take the gang leader’s service to attack their rivals because the gang leaders are well-equipped and trained in weapon handling. Also, another supporting reason for the gangs is sale of illegal weapons in Sri Lanka open market. A browning high power pistol can be purchased for Rs. 25,000/= and T 56 for Rs.100,000/=. To curb down the free circulation of weapons the country needs to establish a Gun Court to prosecute the perpetrators immediately for an early result. If they are charged under the normal court hierarchy it will take several years to deliver the judgement. According to the police statistics criminal gangs are responsible for more than 60 percent of all contract murders in Sri Lanka.
Even though Sri Lanka became a party to the United Nations Convention against Transnational Organized Crime on 22nd September 2006 Sri Lanka has not yet introduced the Criminal Justice (Suppression of Criminal Organization) Act also known as the Anti-gang legislation to stem crime and violence perpetrated by these well-organized criminal gangs. If anti-gang law prevailed at the time most of these cases could have been taken before the courts. The main objective of the anti-gang law is to make provision for the disruption and suppression of criminal organizations; and for related matters. The activities of criminal organizations present a danger to public order and public safety and the economic stability of Sri Lanka. The existing laws of Sri Lanka fail to adequately disrupt, suppress or otherwise deal with organized crime and the activities of criminal organizations effectively and it is necessary to target the leaders of criminal organizations and criminalize the management of, and related conduct in connection with, enterprises that are involved in criminal activity. The pervasive presence of criminal organizations in many communities is harmful to the well-being of the communities. The Criminal Justice (Suppression of Criminal Organizations) law therefore, criminalizes the participation in and promotion of the activities of criminal organizations. Therefore, it is desirable to restore a sense of security in the Sri Lankan society and strengthen the capacity of law enforcement agencies to deal with crime effectively. The Penal Code is not strengthened to cope up with these high-profile gang member activities and 1979 Prevention of Terrorism Act may not cover these types of offences because these gang leaders are not defined as terrorists. The best example is the so-called ‘Aava’motor cycle gang, which is not a terrorist organization like the LTTE.
According to anti-gang law a criminal organization means any gang, group, alliance, network, combination or other arrangement among three or more persons (whether formally or informally affiliated or organized or whether or not operating through one or more bodies corporate or other associations) that has as one of its purposes the commission of one or more serious offences or in relation to which the persons who are a part thereof or participate therein (Individually, jointly or collectively) issue threats or engage in violent conduct to create fear, intimidate, exert power or gain influence in communities or over other persons, in furtherance of unlawful activity or obtain, directly or indirectly, a financial or other material benefit, Major offences of this law should be;
Forming or establishing criminal organizations
Recruitment of child to criminal organization
Recruitment of adult to criminal organization
Being a part of, participating in or facilitating serious offence by criminal organization
Leadership management or direction of criminal organization
Counseling giving instruction or guidance to or procuring criminal organization
Knowingly providing a benefit to criminal organization
■k■owi■gl● obtaining a benefit from criminal organization
Concealing, etc. proceeds of the criminal activity of criminal organization
Knowingly aiding and abetting criminal organization or becoming an accessory before or after the fact in carrying out serious offence Harbouring or concealing participant in criminal organization
Inciting or inducing person to commit serious offence or act of violence to promote or facilitate activities of criminal organization Inciting or inducing person to commit serious offence or act of violence to hinder or prevent the investigation or prosecution of criminal organization Concealing, transporting disposing or tampering with evidentiary material relating to criminal activity of criminal organization Professing to be a part of or participant in criminal organization Preventing person from ceasing to be a part of or ceasing to provide a benefit to criminal organization Taking retaliatory action against former participant in criminal organization Personating law enforcement officers
Any suspect convicted for any of the above offence will be liable for minimum twenty five years and maximum thirty years imprisonment and maximum Rupees five million fine and a reasonable compensation for the victims decided by the courts. This penalty should be placed double on gangs recruiting children. The above offences should be tried only in the provincial high court or special trial-at-bar depending on the gravity of the case.
After thorough research of several countries anti-gang laws reveal that the main weakness is where anti-gang law operates unlike the Dangerous Drug Act or the Firearms Act, there is no “expressed provision” in the antigang law that allows law enforcement authorities to obtain a warrant to enter and search premises. This makes it more difficult for investigators to go after gang leaders’ accountants and other “silent partners” who are helping gangsters finance their criminal lifestyle. Such an arrangement has raised questions about what would happen in cases where investigators have credible information that gang leaders or gang members have a separate location in an upscale community from where they direct their criminal activities. “What would empower them [investigators] to go in there, search, and seize?” “Suppose one of their silent partners is an accountant - he does the financials for the gang and he has a lovely office somewhere in Colombo - how would the police go in there and get it?”
Another major obstacle faced by the Sri Lanka Police, where people who know about the crime are reluctant to give evidence because they face many threats from underworld gang leaders and fear to appear in courts even when the Witness and Victims Protection Act is operating to protect and safeguard the witnesses. One recent incident revealed that there is no mechanism within the Police department to protect junior police officers when they carry out duties according to law even there is so-called independent police commission as in the case of EX-DIG case. Therefore, ex-gang members who are prepared to give evidence against the present gang members and corrupt police officers must be protected. Unfortunately, the whistleblowers in the Defence forces and Police department are not protected by the Sri Lanka law.
When carefully analyzed the Jamaican Anti-gang legislation empowers the police to arrest a suspect and keep him in police custody for seven days. Today the Jamaican Police is continuously requesting from the lawmakers to amendment the act and to extend that period for 14 days for proper investigation. In UAE the Dubai police have the power to keep a suspect for most of the offences for an unlimited time period. In the first instance 14 days and then unlimited time period in the police custody without indicting him in courts. When local gang leader is arrested in a foreign jurisdiction the government of Sri Lanka must consider signing an extradition agreement with that country or seek mutual legal assistance to punish him for that offence.
Finally, one of the potential drawbacks of this law is when keeping a gang suspect for a longer period in police custody there is a trend to violate his fundamental rights. One major argument is where the gang suspect could be subjected to torture and inhuman and degrading treatment while in police custody during the investigation. Therefore, this law should be introduced after developing a proper strategy of monitoring and surveillance of the suspects in police custody. Last but not least the presidential pardon for gang leaders could be the biggest threat to carry out anti-gang law.
Immediately after arresting Madush in Bur-dubai STF commandos conducted several search operations throughout the island without a search or arrest warrant
Sri Lanka has not yet introduced the Criminal Justice (Suppression of Criminal Organization) Act also known as the Anti-gang legislation
People who know about the crime are reluctant to give evidence because they face many threats from underworld gang leaders
If anyone carefully analyzes the history of these gang members or IRC people in Sri Lanka the initial result is 90% of them are army or police deserters
Another major obstacle faced by the Sri Lanka Police, where people who know about the crime are reluctant to give evidence because they face many threats