By Lakmal Harischandra –

Lakmal Harischandra

It was yet another sad day for Sri Lanka where the height of impunity went to another appalling low level, signifying a chronic impunity crisis affecting the process of justice in this Dharma Dweepa. It was also a sad day not just for the Tamil families affected; it equally brings grief to the right thinking people across racial divides-Sinhalese, Tamils and Muslims too. This should not be construed as an indictment on the entire Army fighting a terrorist outfit; rather the concern raised here is about the way a President can act unilaterally to reverse a judicial decision. Does it not defeat the very purpose of having the separation of powers as stipulated in the Constitution to ensure checks and balances?  

President Gotabaya Rajapaksa pardoned an army soldier on death row for massacring eight Tamil civilians, including four children – one as young as five years old. In 2000, during the height of three-decade ethnic war against the Tamil Tiger terrorist faction, Sergeant Sunil Rathnayake and 14 others were accused of torturing and murdering eight Tamil civilians at the Mirusuvil army camp, close to northern Jaffna, a former rebel stronghold. The case came to light after one of the Tamils escaped and fled from the massacre. According to reports,  the family had gone back to inspect their bombed homes following an intense battle between the army and the Tiger rebels in their little village, and were accused of being a terrorist reconnaissance team.

Evidence in court showed Sunil Ratnayake had tortured the men, women and children, before slashing their throats and burying them. The soldier was sentenced to death in 2015 after a 13 year trial, at the end of which he was found guilty of 15 charges including illegal arrest, torture, murder and the burial of the bodies in a mass grave. During the trial, 13 of the soldiers, all except Ratnayake, were acquitted of all charges citing “insufficient evidence. The fact that Tigers too did worst acts will not absolve an army officer to repeat a similar act.  

This pardon surely raised much applause from the a largely nationalistic Sri Lankan electorate which gave a Presidential mandate to a former Secretary of Defence whose track records in human rights are also far from credible. But, it is a fact that it was a gross abuse of Presidential powers given to him under Article 34 of the Constitution of Sri Lanka which was promulgated by the First Executive President JR Jayewardene. This Ratnayake case was also significant as it was also   a very rare case where a security forces personnel was prosecuted in Sri Lanka and this pardon shows that Sri Lanka  will not exercise any accountability with regard to the so- called war time atrocities. As Amnesty International  says, ‘Where accountability is so rare for serious human rights violations in Sri Lanka, the government’s arbitrary decision to release Sergeant Ratnayaka sends an extremely worrying message… Using the pandemic as an opportunity to release those convicted for heinous crimes is reprehensible. Victims have a right to justice, and Sri Lanka has an obligation to ensure that justice is done’.

Yes! the global Corona crisis will drive this abuse of Presidential power go into oblivion and no amount of protest will reverse this decision as the pre-election environment is not conducive when the majoritarian feelings of the majority community is in a  state of arousal justifying this decision as a reversal of so-called injustice to an Army who fought a ruthless war. But as human rights activists, it is our duty to highlight this gross abuse of power by President Gotabaya as yet another blow to the judicial independence of Sri Lanka in the much trumpeted democracy. The Presidential power in the constitution to pardon convicts has been exercised by the incumbents of the office of the President in gross violation of the much honoured legal principle that all are equal before the law. Under our 1978 Constitution. the President may grant a pardon, respite or substitute a less severe form of punishment for any punishment imposed to any offender convicted of any offence in any court within the Republic of Sri Lanka. The President has also immunity from both civil or criminal proceedings.

The action of President Gotabaya was neither new or novel. His predecessor Sirisena did it twice. It was last year that President Sirisena pardoned a well known hate monk Ven Gnanasara (GST) who was jailed after being charged for contempt of court. When GST was let off the hook and allowed to go free, the last remnants of the rule of law then vanished. Analysts point out that the pardon specifically signals that some are more equal than others, when some categories of citizens, such as the Buddhist clergy, can expect to enjoy preferential treatment when it comes to obeying the law. It also sets a dangerous precedent whereby properly tried, convicted and sentenced persons can be released on the whims of the President and government. The timing of his presidential pardon in the aftermath of the Easter Sunday massacre was significant as well, where GST’s dubious record as an incessant Islamophobe will play a pivotal role in further exacerbating the hate campaign against the Island’s Muslim population. It was indeed the second rising of the Sri Lankan version of Wirathu of Myanamar, which appeared to echo well with the anti-Muslim hate lobbies barking loud through the social media.

Then again in November 2019, Sirisena as outgoing President caused another outrage by pardoning a death row prisoner who murdered a Swedish teenager in 2005. Jude Jayamaha, from a wealthy, high-profile family, walked free from prison following his highly unusual decision. The victim’s sister, Caroline Jonsson, said the killer had shown no remorse. It was proved to be a premeditated act and he had waited for her outside the family’s apartment before attacking her. Jayamaha was initially given 12 years in prison. His subsequent appeal against his jail term was rejected and he was sentenced to death instead, a sentence upheld by the Supreme Court in 2014.

The State’s obligation internationally is a pointer to indicate that the prerogative of mercy should be exercised by procedures which are fair and proper and to that end are subject to judicial review. In many jurisdictions, the power of pardon is an important component of executive powers, which allows the President to intervene and grant pardon, as a way of “dispensing the mercy of government” in exceptional cases where the legal system fails to deliver a morally or politically acceptable result. It exists to protect citizens against possible miscarriage of justice, occasioned by wrongful conviction or excessive punishment. The power to grant pardon is of ancient origin and recognised today in almost every nation. It is capable of correcting the mistakes of the judiciary, particularly, where one may have been wrongly convicted or where the punishment was unduly excessive.

Nevertheless, in recent times, this power has, in practice, become a personal prerogative of the President, a remnant of tribal kingship generally reserved for the well-heeled or well connected. The power of pardon is virtually unfettered and unchecked by formal constraints in most jurisdictions, thereby rendering it susceptible to abuse. The pardon power has been abused as political and other extraneous factors tend to determine its application. It has also been seen as capricious and inaccessible by ordinary people. The usefulness of the power has seriously been dented by lack of control and checks in most jurisdictions. 

There are many reservations about the presidential power to pardon on a unilateral basis in many other countries.Judicial review of the exercise of pardon power is allowed in India  and South Africa, but not in most other jurisdictions. In India for example, it has been judicially established that presidential pardon under Article 72 of the Indian Constitution is subject to judicial review on the grounds mentioned in the case of Maru Ram v Union of India. In that case, the court, while deciding on the validity of 433A of the Code of Criminal Procedure, examined the power of pardon under Article 72 and observed as follows: Pardon using this expression in the amplest connotation, ordains fair exercise. Political vendetta or party favouritism cannot but be interlopers in this area. The order which is the product of extraneous or mala fide factors will vitiate the exercise.’ In South Africa, the reviewability of the President’s power to pardon as evident in the Hugo’s case 77 was upheld by section 239 of the 1995 Constitution. In Zambia, In the exercise of the presidential pardon power under section 59 of the Constitution to pardon, section 60 provides for an Advisory Committee on Prerogative of Mercy consisting of persons appointed by the President. The Constitution of Uganda provides for the establishment of an Advisory Committee on the Prerogative of Mercy, which shall consist of the Attorney General and six prominent citizens of the State appointed by the President.

The pardoning power is the most sacred and difficult of all executive functions. Though it is regarded as a prerogative, based solely on presidential or executive discretion, there ought to be checks and guiding principles to avoid injustice in the quest for equity. By that, public interest shall be better served, reform of the prisoners more attained and welfare of the family and community advanced by a liberal but discrete use of the pardoning power. Ultimately, the ability of the President to use the pardon power fairly and dispassionately will, to a large extent, depend on his personal integrity and sense of responsibility. While the President should be allowed wide latitude in the exercise of his power of pardon, the prescription of some guidelines for granting pardon, as obtainable in India and South Africa, is also desirable. This, of course, cannot prevent the abuse of presidential pardon power, but it would go a long way in curbing the incidence of abuse. Indeed, the grant of pardon in all cases should be rational and aimed at serving some public policy purpose in order to justify the President’s interference with the judicial determination of guilt and punishment. Thus, it is recommended that the advice of a Council on the grant or refusal of pardon to applicants should be made binding on the President in all cases or the judicial review made possible as in few other jurisdictions. 

On Sri Lankan context, the present provisions in the Constitutions allows for improper cover-up and self-interested pardons. Only the President’s conscience, concern for historical judgment, and political considerations-public opinion and election strategy-provide a check on the President’s pardon decisions. The abuse of Presidential Pardon is also an abdication of the state responsibility to control crime. Such pardon is not meant to forgive persons who have committed serious crimes and certainly not for the purpose of favouring political allies to promote political cause of the party the president belongs to.  However, there is no surprise that this kind of thing happens in Sri Lanka as the President does not consider himself bound by any conventions or ethical and moral considerations in the use of his extraordinary powers. 

Will the Sri Lankan electorate wake up and force the hand of the branches of the government to exercise proper checks and balances? It is imperative the Article 34 giving such powers to the President to pardon as he wills, should be curtailed and subjected to checks. It will be left for public activists and HR watch groups like HRCSL and CPA to build public awareness about the importance of having such checks and balances for any vibrant democracy to survive in the true spirit and also protect civic rights to justice and fairness? Will they rise up to this challenge in this unconducive political environment? Only time will tell.