A fundamental rights (FR) petition was filed at the Supreme Court (SC) seeking the formulation of special legal rules and guidelines to govern the exercise of the power of pardon by the Executive President and to ensure that it is exercised in a transparent and accountable manner, and following publicly disclosed, specified, objective criteria, while duly recognizing the rights of victims. 

The petitioners have prayed for the apex Court to direct the Minister of Justice, Human Rights and Legal Reforms, in consultation with the Commissioner General of Prisons, the National Authority for the Protection of Victims of Crime and Witnesses (NAPVCW) and other stakeholders to formulate the said special legal rules and guidelines while also taking into consideration the views put forward in this regard by the Human Rights Commission of Sri Lanka.

The action SCFR 228/2020 was filed on 21 July. The petitioners are Ruwan Laknath Jayakody, Rukshan Fernando and Kavindya Chris Thomas. Counsel Pulasthi Hewamanna will be appearing for the petitioners with Attorney-At-Law (AAL) Harini Jayawardhana, on the instructions of AAL Ishara Gunawardena.

The Attorney General (both in his capacity as the AG and on behalf of the President for acts committed by the latter in his official capacity), the Commissioner General of Prisons, the Minister of Justice, Human Rights and Legal Reforms, the Secretary to the President, and the National Authority for the Protection of Victims of Crime and Witnesses, have been named as the respondents. 

The petitioners claim that the recent trend in the exercise of the power for the grant of pardon by the President under Article 34 of the Constitution, has been unreasonable, arbitrary, irrational, capricious and ultra vires, motivated by irrelevant considerations and in disregard of the relevant factors, and made for collateral purposes, contrary to the rule of law and in violation of the principles of natural justice. This is not to mention the absolute lack of transparency and accountability in these exercises.  

Thus, the petitioners contend that if special legal rules and guidelines are not formulated to govern the exercise of the power of pardon under Article 34, there is a real likelihood of an imminent infringement of their FR as members of the public, and also the violation of the rights of victims and the public in general, under Article 12(1) of the Constitution on the right to equality before the law and the equal protection of the law. 

In the petition, three instances of Presidential pardons being granted have been cited. These are namely the pardon of the General Secretary of the Bodu Bala Sena, Galagodaaththe Gnanasara who was convicted of contempt of Court and sentenced to rigourous imprisonment, and the pardon of the Royal Park murder convict who was sentenced to death, Don Shramantha Jude Anthony Jayamaha, both by the former President Maithripala Sirisena, and the pardon of the Mirusuvil massacre convict who was sentenced to death, Sunil Rathnayaka, by the incumbent President Gotabaya Rajapaksa.

As per Article 34(1) of the Constitution, with regard to any convict, the President may grant a pardon, either free or subject to lawful conditions. In the case of the granting of pardons to those condemned to death, the President as per the proviso to Article 34(1) of the Constitution, has to obtain and send the trial Judge/s report/s to the AG for advice, which in turn must be relayed to the Minister of Justice who will in turn forward the report/s and the said advice along with his/her (Justice Minister’s) recommendations, back to the President, and due regard must be given by the President to such procedural safeguards. Also, Section 3(q) of the Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 as Amended, holds that the victim of a crime shall have the right and entitlement “in the event of any person in authority considering the grant of a pardon or remission of sentence imposed on any person convicted of having committed an offence, to receive notice thereof and submit through the Authority (the National Authority for the Protection of Victims of Crime and Witnesses) to the person granting such pardon or remission, the manner in which the offence committed had impacted on his/her life including his/her body, state of mind, employment, profession or occupation, income, quality of life, property and any other aspects concerning his/her life“.

In the grant of the pardon to Gnanasara, the petitioners note that the independence of the Judiciary has been undermined and that the due process concerning the protection of the victims of his crimes has not been followed, and that this pardon appears to have been made for extraneous purposes, thus impinging on the rule of law. 

In the grant of the pardon to Jayamaha, the petitioners claim that it is ultra vires the powers of the President and that extraneous, undisclosed considerations and irrelevant factors had been considered in the grant of this pardon, and furthermore that the mandated Constitutional process in relation to the pardoning of a death row convict has not been followed. Also, in this case, the requirement under the Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 to serve notice to the victim’s family of the consideration of the grant of a pardon and to provide an opportunity to make a representation concerning such, has not been followed. Moreover, the selection of Jayamaha from over 1,000 convicts on death row awaiting the death sentence and who have been languishing in prisons for lengthy periods has been done in the absence of any proper justification. 

In the grant of the pardon to Rathnayaka, the petitioners claim that the crimes for which he was convicted constituted war crimes under international law. Also, the petitioners note that this pardon had prejudiced the rights of the victims and their family members as the statutory requirement under the Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 to serve notice to the victim’s family of the consideration of the grant of a pardon and to provide an opportunity to make a representation concerning such, has not been duly complied with. Incidentally, Right to Information (RTI) requests made under the Right to Information Act, No. 12 of 2016 as Amended, by the first and second petitioners from the Presidential Secretariat and the Ministry of Justice, seeking the report/s of the trial Judge/s, the advice of the AG and the recommendations of the Minister of Justice, received no response from the Presidential Secretariat other than an acknowledgement of receipt. As it does not appear that consideration has been given to the severity of the crime or the rights of the victims, the petitioners thus note that there were no reasonable grounds warranting this pardon. 

The petitioners state that the failure to follow such Statutory requirements cause grave prejudice to the rights and entitlements of victims, and their dignity, whereas, as per Section 3(a) of the Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, victims are to be treated with equality, fairness and with respect to their dignity and privacy.

The petitioners believe that the power of pardon is necessary in that it provides for the possibility of rectifying miscarriages of justice and recognizing mitigating circumstances. However, the petitioners believe that the purposes of incarceration such as the rehabilitation of a convict, the suitability for re-integration of a convict and the need to prevent any further injustice or negative consequences to the victims and witnesses, must be given due weight in granting pardons by the Executive President. 

The power of pardon under Article 34 of the Constitution is also subject to the FR jurisdiction and therefore must be exercised in trust for the people, and for the public good. The President has no unlimited power and his powers are circumscribed by the Constitution itself. It must be noted that the power of pardon is a special and unique one, which is vested with an individual who has the ability to weigh considerations which are not limited by the bounds of the black letter law and therefore, the exercise of such power involves considerations of kindness, mercy, forgiveness and absolution together with considerations of the good of the public as a whole. Additionally, the exercise of the power of pardon by nature involves intervention in the work of the Judicial branch, the Executive branch and the Legislative branch of Government. 

The petitioners state that the power of pardon is therefore required to be exercised with transparency and accountability with regard to the selection of the convicted individual, the procedural requirements mandated by the Constitution and the Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 and any other law, the report/s, advice and recommendations made by the relevant authorities under the proviso to Article 34(1) of the Constitution, the reasons and considerations taken into account which warrant the grant of the pardon, the rehabilitation process of the prisoner during incarceration, and the reintegration of pardoned offenders into society. 

The petitioners state that in order to prevent the arbitrary, unreasonable, irrational and capricious future exercise of the power of pardon, and the violation thereby of the FR of the petitioners as members of the public and the rights of the victims, special legal rules and guidelines must be formulated to govern the exercise of such power.

The case has been fixed for leave to proceed on 24 September 2020 which is the date on which the cases challenging the pardon afforded to Rathnayaka too are to be taken up.