By Karikalan S. Navaratnam –

As I have mentioned in my previous piece ( Colombo Telegraph, 10 April 2020), commenting on the Presidential pardon granted to convict Sunil Ratnayake, Justice Minister Nimal Siripala had said, “the final decision is with the President. He can overrule anything. He has the absolute power to grant pardon, no one can question him”. The Minister had added that the constitutionally mandated procedure for the pardon was followed. (The Hindu, 27 March 2020). 

Misconception

Evidently, under Art. 34 (1) of the Constitution, the President has the power to grant pardon; but the Minister’s claim that the President has the absolute power to pardon the convict is a misconception. The relevant provisions are:

34. (1) The President may in the case of any offender convicted of any offence in any court within the Republic of Sri Lanka –(a) grant a pardon, either free or subject to lawful conditions; (b) grant any respite………, (c)………(d) ……” etc. 

And, there is a proviso to Article 34.(1) , which reads as follows: “Provided that where any offender shall have been condemned to suffer death by the sentence of any court, the President shall cause a report to be made to him by the Judge who tried the case and shall forward such report to the Attorney General with instructions that after the Attorney-General has advised thereon, the report shall be sent together with the Attorney-General’s advice to the Minister in charge of the subject of Justice, who shall forward the report with his recommendation to the President.

On whose initiative?

On whose initiative does the pardon process begin? Typically, it should be on an application filed by the offender/convict, personally or by proxy.  In the case of convict Sunil Ratnayake President could not have, in the exercise of his powers under 34.(1), granted pardon, ex mero motu, of his own accord, without a written request from the convict (or from someone legally acting for him) seeking such pardon. It appears that there is no express provision either in the Constitution or in any other written law in Sri Lanka stipulating such requirement. Nonetheless, filing such paperwork is necessarily implicit in the legislative scheme, and Article 34.(1) may be so read and understood. ( It would be helpful, If any legal academic or professional with sufficient knowledge could clarify this point). Thus, the paperwork, must include the Application for pardon with supporting documents. 

In terms of the proviso, (upon receipt of the application by the President’s office), it is mandated that certain actions must be taken in a certain order or manner, prior to the grant (or refusal) of pardon by the President. Those are prior conditions to be satisfied and the auxiliary verb is “Shall”.  

Breach of procedural  justice

The mandated procedure is not a maze of meaningless rituals. It is a replica of the pardon process provided for in a number of countries, with Common Law or Continental legal systems. And, the procedure is intended to initiate and direct the necessary investigations at different levels and prepare the reports and recommendation for the President to act on. Investigations about what? 

There are relevant factors to be examined or considered before deciding whether to grant/refuse a pardon, viz: nature and circumstances of the offence, applicant’s post-conviction conduct, acceptance of responsibility for his criminal conduct, remorse, atonement, involvement in other criminal activity, impact of the crime on the victim(s) etc.

Did President Gotabaya follow the mandated procedure -and take the prescribed steps spelt out under the proviso to 34(1) – before granting pardon to the convict?  Justice Minister’s blanket statement that “the constitutionally mandated procedure for the pardon was followed” is not conclusive on the issue. It is a matter of procedural fairness which entails acting fairly in decision making. 

According to legal academics, procedural justice accentuates four principles, 1) being fair in processes, 2) being transparent in actions, 3) providing opportunity for voice, and 4) being impartial in decision making. 

Transparency  International’s concern

It is in this context that Transparency International Sri Lanka (TISL) has called upon the Presidential Secretariat to make public the following documents as regards the presidential pardon granted to the convict in Mirusuvil massacre case: 

1. Report of the Trial Judge, (2) Advice of the Attorney General, and (3) Recommendation of the Justice Minister. (Alluding as well to President Sirisena’s offer of pardon to murder convict Jude Jayamaha in Nov.2019), TISL Director  Asoka Obeyesekere said, “in two instances in the recent past, we have witnessed the powers of presidential pardon being exercised without the disclosure of the information to substantiate these pardons. This trend of executive action potentially subverting judicial process is very disturbing as it will cause the public to lose faith in the judiciary as the arbiters of justice under the law”.  (The Island)

01 April 2020 – “Presidential pardon for convict: TISL calls for documents.” Ex post facto exercise?

Even if one buys into the Minister’s dubious assertion that President Gotabaya Rajapaksa had observed the “constitutionally mandated procedure” for granting pardon, in a sense, it sounds like an ex post facto exercise and a farce at that. Because, absolving the criminals in uniform was Gotabaya’s election pledge. He had already, in Oct. 2019, decided to grant pardon to all “war heroes” and had also followed up with a public declaration to that effect. (Be that as it may, let me get back to the main issue). 

Legal battle

It behoves us to ensure that justice is done to the hapless victims of Mirusuvil massacre. We must urgently launch a legal battle to stop the rampaging Rajapaksas in their tracks before they could commit further aggression against the Rule of Law and present it as a fait accompli. In this venture, let us enlist the active support and collaboration of enlightened liberals and progressive sections of the civil society. Justice Minister’s casual bravado that “the final decision is with the President. He can overrule anything. He has the absolute power to grant pardon, no one can question him” sounds simplistic. President Gotabaya cannot be allowed to ride roughshod over the judiciary. 

Who has standing?

Victims’ families have the locus standi to initiate the judicial process in Court and challenge the Presidential decision – and have it quashed. Equally, as the issues involve human rights, fundamental rights and other broader issues of public interest, any serious public interest litigant has the standing to invoke the jurisdiction of the superior Courts in Sri Lanka and obtain legal remedy. Multi-pronged attacks against the Presidential decision may be launched by way of an application for Judicial Review, seeking the issue of a Writ of Certiorari and/or a Fundamental Rights Application under Article 126 of the Constitution. Domestic jurisprudence touching on the Executive’s pardon power is in a fledgling stage – just evolving. We may be guided by the principles as enunciated by eminent judges and jurists in other jurisdictions.  

UK  legal regime

In the UK, pardoning power, historically known as the Sovereign’s prerogative power of mercy, is exercised by the Queen on the advice of the Secretary of the State for Justice (earlier, the Home Secretary). In Regina v Secretary of State for the Home Department Ex Parte Bentley: QBD 8 Jul 1993, the High Court (Queen’s Bench Division) held that the prerogative power of mercy may be reviewed on the grounds similar to those on which the exercise of statutory powers is reviewed, namely for illegality, irrationality and procedural impropriety. 

USA – Rationale of the pardon power 

Celebrated Justice Holmes of the US Supreme Court had, in the case of Biddle v. Perovich (274 US 480, 486 (1927), set out the rationale of the pardon power as follows: “A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”

In the US, the Congress and the Courts do not have much leeway in circumscribing the Presidential power to pardon. Nonetheless, where pardon is granted (or denied) in violation of ‘equal protection principles’ (by discriminating on the basis of race or gender), or ‘due process protections’ in the Constitution, they are grounds to challenge the President’s pardon by way of judicial review.

Though a sop, there is space for a sliver of relief to the victims of Federal crimes in the US, in that, there is a mandatory waiting period of five years after the date of conviction before an Application (Petition) for Presidential pardon can be filed by (or on behalf of) the convict. Further, the family members of any victim of a crime for which Applicant/Petitioner was sentenced to death may file a request to make an oral statement to the Office of the Pardon Attorney (which handles the Pardon Petitions addressed to President) opposing the grant of pardon.  

It may be noted that in the case of “war hero” Sunil Ratnayake, convicted on 25 June 2015, not even five years had elapsed before a ‘bleeding heart’ President Gotabaya rushed to pardon the brutal murderer – whilst the powerless and voiceless families of the victims have been condemned to a cruel life of eternal grief and bereavement. 

India vs. Sri Lanka

Before looking at the watershed rulings made by the Supreme Court of India on the exercise of Presidential pardon, it may not be out of context to examine the contrasts in shades and style with that of Sri Lankan system. In Sri Lanka, the President is directly-elected by the voters. President Gotabaya is not an apolitical idealist; but a passionate politician thriving on ultra-Sinhala Buddhist nationalistic militarism. Gotabaya, the grantor of pardon, and the grantee, convict Sunil Ratnayake, have a symbiotic relationship – not an arm’s length relationship. Incidentally, Lt. Col. Gotabaya had previously served as the second-in-command of the 1st Battalion, Gajaba Regiment, to which the killer belonged when he committed the massacre. The Justice Minister, who has a vital role to play in the process is Gotabaya’s own hand-picked appointee for the job. There is absolutely no integrity, impartiality or probity in the pardon regime in Sri Lanka.

On the other hand, Indian Presidents are not directly elected by the voters. They are elected by an electoral college (consisting of M.Ps and Members of the Legislative Assemblies of the States and the Union Territories). Most of them, beginning with the first President Dr. Rajendra Prasad, have been illustrious men of letters, great scholars, scientists and prominent educationists – Dr. Sarvepalli Radhakrishnan, Dr. Zakir Husain and Dr. Abdul kalam, to name only a few. 

India – catena of cases

Articles 72 and 161 of the Indian Constitution provides for the pardoning power, respectively, of the President and the State Governors. Supreme Court of India has ruled in successive cases that the power could be exercised by the President or the Governor only on the advice of the Central or State Governments. Neither can exercise the power of pardon on his/her own without consulting the respective government. (Ref: Maru Ram v. Union of India (1981); Dhananjoy Chatterjee alias Dhana v State of West Bengal and others (1994). 

There has been an ongoing debate on the availability and scope of judicial review in regard to the President’s (and Governor’s) power to grant pardon – with mixed messages and conflicting opinions.

In the case of Kehar Singh and Another v. Union of India,(1989)  Kehar Singh was one of the convicts under death sentence for his role as a co-conspirator in the assassination of Indian Prime Minister Indira Gandhi. Kehar Singh’s petition for Presidential pardon, filed by his son, was rejected.  One of the issues addressed by the Supreme Court was the failure of the Minister to inform the convict’s son of his right to seek judicial review of the President’s refusal. Minister’s omission attracted a spate of criticism from legal academics. (Vide- Hindu, 23 Nov.2012  –

“An act of constitutional impropriety”  

In Swaran Singh vs State of Uttar Pradesh (1998) Supreme Court said, “We cannot accept the rigid contention………… that this court has no power to touch the order passed by the Governor under Article 161 of the Constitution. If such power was exercised arbitrarily, mala fide or in absolute disregard of the finer canons of the constitutionalism, the by-product order cannot get the approval of law and in such cases, the judicial hand must be stretched to it.”

Landmark judgment

Supreme Court’s landmark judgment in Epuru Sudhakar & Another vs Govt. of A.P. & Others (2006) has resolved any ambivalence as to the Court’s authority to review the exercise of President’s / Governor’s pardon power under the Indian Constitution. The apex court has held as follows:

“The position, therefore, is undeniable that judicial review of the order of the President or the Governor under Article 72 or Article 161, as the case may be, is available and their orders can be impugned on the following grounds:

(a) that the order has been passed without application of mind; (b) that the order is mala fide; (c) that the order has been passed on extraneous or wholly irrelevant considerations; (d) that relevant materials have been kept out of consideration; (e) that the order suffers from arbitrariness.”

Renowned jurist Soli Sorabjee (Former AG of India), participating as Amicus Curiae in the proceedings, had eminently insisted on the desirability of giving reasons in the order granting pardon/remission. (An essential element which is abysmally missing in Gotabaya’s order) 

In sum, President Gotabaya’s order granting pardon to the convict Sunil Ratnayake has, procedurally and substantively, all the egregious errors which invite judicial intervention.

Victims Protection Act

The provisions of ‘Assistance to and Protection of Victims of Crimes & Witnesses Act No. 4 of 2015’ (hereinafter referred to as “Victims Protection Act”) can be effectively availed of to attack Gotabaya’s Presidential pardon on another front. Victims Protection Act, 2015 was not there at the time of Mirusuvil massacre; but was there when Gotabaya granted pardon to the killer. Gotabaya’s egregious abuse of pardoning power, as provided in Art. 34(1) of the constitution, flies in the face of the benign provisions of the Victims Protection Act and defies the law in letter and in spirit. He has made a mockery of the lofty ideals presented as the objects of the said legislation. Notably, under “Rights and Entitlements of the Victims of Crime ……”, adverting to victims of crimes where the offender is seeking a pardon, it is provided in Section 3 of the Act, inter alia, as follows: 

“3. A victim of crime shall have the right :—

(a)……(b)….. (c)…..(d)……(q) 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 to the person granting such pardon or remission, the manner in which the offence committed had impacted on his life including his body, state of mind, employment, profession or occupation, income, quality of life, property and any other aspects concerning his life.”

Victim on the run !

Did the Presidential office ever care to contact any of the relatives of the victims of Mirusuvil massacre, before offering a pardon to the killer? There is only one traumatized survivor of the Mirusuvil atrocity, who had put his life on line and testified at the Trial-at-Bar. Who knows? He may be on the run because the killers are out and are on the prowl.