Expressing grave concern over the arbitrary use of Presidential Pardon without consultation of the Court and Attorney General, the Bar Association of Sri Lanka has noted granting Presidential Pardon to BBS Gnanasara who was serving a prison sentence for contempt of court, has dealt a blow to protections granted to the Judiciary from unwarranted interference and attacks against its independence and authority.
In a special statement issued following the Bar Council meeting on May 25, the BASL notes the decision to grant a pardon by the President should not be based on irrelevant considerations.
“Even though such power is unquestionable, the exercise of such power should take place based on sound legal principles and reasoning,” BASL notes in its statement pointing out any departure from principles and reasoning would violate the foundations of the Rule of Law and shock the conscience of those who value an independent Judiciary.
The BASL goes on to remind, the power of pardon granted under the Constitution should not be exercised arbitrarily or capriciously even though no guidelines for the exercise of such power exists.
Several statements made by politicos over the past few weeks relating to the judiciary have also been noted with concern by the BASL.
“It was recently reported in the electronic media that a politician holding a high office in the Eastern Province has been quoted as having made a speech about the transfer of a member of the Judiciary…We also observe that another politician holding High Office in the Western Province has also made a statement to the effect that he could name a member of the Judiciary who may be involved in subversive activities,” the statement notes while adding the contents of the above statements have had a serious impact on public confidence on the Judicial System.
The BASL in its statement went on to urge the IGP to initiate investigations regarding the authenticity and the correctness regarding the questionable statements made by the two politicos, gravely undermining the rule of law.
We publish be the statement in full:
The attention of the BASL has been drawn in the recent past to a series of incidents which appears to have a serious impact on the Rule of Law and the independence of the Judiciary.
The BASL has always considered the Judiciary and the Legal Profession as two units of the same component. Any impairment of one affects the other.
It was recently reported in the electronic media that a politician holding a high office in the Eastern Province has been quoted as having made a speech about the transfer of a member of the Judiciary. While the authenticity of the video recording and the audio tape has to be ascertained primarily, if the above statement has been actually made, it raises serious concerns on the independence of the Judiciary being interfered with.
The BASL has taken note of the contents of the audio visual that has been released by the media. The BASL holds the view that it would be extremely unfair by any individual to comment upon such an audio-visual without ascertaining the originality and the authenticity of the above recording. We also hold the view that the contents of the audio-visual, if proven to be accurate, undermines the independence of the Judiciary.
We also observe that another politician holding High Office in the Western Province has also made a statement to the effect that he could name a member of the Judiciary who may be involved in subversive activities. Even though this was made as a public statement, it is unfortunate that no further action appears to have been taken in this regard by the authorities.
The contents of the above statements have a serious impact on public confidence on the Judicial System. Any erosion on the “public confidence” has a serious impact on the Rule of Law.
The BASL urges the Inspector General of the Police to initiate investigations regarding the authenticity and the correctness regarding the above statements.
The above matters were highlighted at the Bar Council meeting held on Saturday the 25th of May 2019.
A further matter for concern is the recent act by His Excellency the President in granting a Presidential pardon to a monk who was serving a sentence by the Court of Appeal for Contempt of Court committed in the presence of the Homagama Magistrate. It is relevant to note that the Court of Appeal exercises jurisdiction in respect of Contempt of Court in terms of Article 105 (1) of the Constitution.
Laws of contempt exist to protect the Judiciary from unwarranted interference with its authority and to protect the Judiciary from attacks against its independence and authority.
The Judiciary in Sri Lanka is studded with an illustrious history, dating back to 1801 when the Supreme Court of Sri Lanka was established during the British rule. It has survived over 2 centuries due to the dignity and the respect it has commanded and the confidence the public has had in it.
The Bar Association is of the opinion that the Constitutional power given to His Excellency the President to grant a pardon should not be exercised arbitrarily or based on irrelevant considerations. Even though such power is unquestionable, the exercise of such power should take place based on sound legal principles and reasoning. Any departure from these considerations would shake the very foundations of the Rule of Law and would shock the conscience of those who value an independent Judiciary.
Regrettably, even in the past, some previous presidents have exercised the power of pardon, vested in them, under the Constitution, in a similar manner. We hold the view that such an exercise of power is detrimental to the Rule of Law and the independence of the Judiciary.
The BASL is gravely concerned of this power being exercised in such a manner in all the above instances. We hold the view that the power of pardon granted under the Constitution should not be exercised in an arbitrary and a capricious manner, without consulting the vital stakeholders, namely, the Court which imposed the sentence and The Honorable Attorney General.
Being mindful of the fact that there are no guidelines for the exercise of such power, the BASL is of the strong view that the consultative process referred to above would ensure that such a power should be reasonably exercised without leaving any room for loss of public confidence and for undermining the independence of the Judiciary.
Kalinga Indatissa PC
President
BAR ASSOCIATION OF SRI LANKA
Shavindra Fernando PC
Deputy President
Bar Association of Sri Lanka
Kaushalya Navaratne
Secretary
Bar Association of Sri Lanka
Nalin De Silva
Treasurer
Bar Association of Sri Lanka
Vishwa De Livera Tennekoon
Assistant Secretary
Bar Association of Sri Lanka
JD / May 29, 2019
In that Case Karuna, Mangala, Ranil, KP, TNA, many NGOs, the LTTE guy that tried to blow up the President – all should go to Jail.
Mangala Says it is because ZahaRAN KILLED 300 AND MAIMED 400 WE GOT THE MCC LOAN. WHAT /
After the first Attack in the Wayamba area, Manga a wanted one in the south too and he said Sri lanka is not a buddhist Country. If somethings happened, he always had words to turn it around. Who wanted him to say that. I heard, Wahhabi activities began the Day LTTE was defeated.
International community always say we are helping you. Why are you still scolding us and forget this now.
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Thappu / May 30, 2019
JD, You have a medical issue, – you hear things. Attend to it before it is too late.
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Lanka / May 29, 2019
it is playing politics out this .
Sri Lankan people will not forgive his deception .
A big cheat in Sri Lanka .
what message he sends to the world ?
it is to get sinahalese votes next election .
his dream will never come through ..
he is lucky to get this post .
unlucky to create a coup
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Real Revolutionist / May 30, 2019
Whatever the arguments may be president has had a strong reason to release Gnanasara.
It was Gnanasara who foresaw the extremist intentions & it was the failure of the authority led by the president to heed & save 250 lives.
Had Gnanasara words been taken into consideration the recent history should have been avoided.
President seems to have some sort of ethics; with vested power, how could such a person like Gnanasara still be kept behind bars?
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Colombo man / May 30, 2019
My dear RR you have a point there.
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Thappu / May 30, 2019
Real Revolutionist, You said, ‘Had Gnanasara words been taken into consideration the recent history should have been avoided’. What I understand from this comment is that Gnanasara should be out & the President should be in. Am I correct?
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Real Revolutionist / May 31, 2019
Thappu
As a matter of fact
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JD / May 30, 2019
May 29, Colombo: Sri Lanka’s Inspector General of Police Pujith Jayasundara, who has been sent on compulsory leave for failure to prevent the terror attacks despite prior warnings, has filed a Fundamental Rights petition in the Supreme Court against his suspension.
In Sri lanka, Not so Executive President can be bullied even by the IGP.
There is something very wrong with the Sri lankan system.
People do not have any rights to know what is going on in the country. President who is elected by the People must report to the PM, Parliament and to the officials.
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Analyst / May 30, 2019
JD
That’s why Srilanka our Apeh Aanduwe is in the basket of Banana Republic , meaning no Law and Order, No Intelligence and every Tom Dick and Harry do their own things.
Remember ? The law books are Rewritten to suit the Mafias in Politics and for the “well to do Swindlers.”
See Where we are.!
In the Cesspool of course.
The Religion and its leaders too are not helping but in the Cesspool to cause Havoc and Carnage to suit their fabricated faith not the Lord Buddhas Philosophy.
They should take note to see where they’re going wrong in their Sermons?
Buddhism is not a Religion as all agrees, but still some kind of Paranoia had been created for their own vested interests.
Path of Philosophy and Religions should be protected in the right meaningful manner , But Not by causing violence and instil Fear Psychosis.
This had been happening in our Land causing Self destruction and misery to all humans in our country.
When will you learn JD and the likes of you???
Never is my observation which will lead to more carnage and misery as long you’re happy with what’s happening.
The monks gave no place in Politics.
Their meaningful place is the places of worship. Not meddling in Politics. They’re fed by PEOPLE at large to pray for the PEOPLE AND THE COUNTRY.
THEY SHOULD OWN NOTHING , NO WISH TO CAUSE HARM TO OTHERS, NO GREED .
THIS IS THEIR WAY OF EXISTENCE IN BUDDHISM.
Rewritten and Mal Practise of Mahawamsa has become a joke.
Nothing of the sort written . Yes No Politics for a start among the Yellows!!
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Buddhist / May 30, 2019
What is the state of law of Sri Lanka? A President who was pronounced as a person who has violated the constitution has the audacity to pardon a thug of a priest who has insulted the courts and sent to jail! This is similar to a crook sitting in judgement of another crook!
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Good Sense / May 30, 2019
Talking of pardons, Singapore has pardoned only 6 people sentenced to death, in its 54 years of existence. Cannings! All are duly executed, perhaps the rare exception was the case of the American boy where the sentence was reduced from 6 strokes to 4. I think the BASL is the least qualified to talk about pardons. Where were they when we started this game in pardoning a convicted rapist and made him a JP? Will these buffoons recommend that there should be a constitutional amendment that the President must get the constitutional council approval even to pardon a prisoner? The BASL must take tangible steps to restore its credibility. The biggest issue is the delays in courts. A childless couple had to spend five years to get a divorce. The root cause for these shameless delays and other maladies is the black coat community it self.
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Mark / May 30, 2019
“..the exercise of such power should take place based on sound legal principles and reasoning,” BASL notes….”
Did President exercise those legal principles when he granted presidential pardon to, for example
1. Wife of Christian affairs minister Milroy Fernando when she was sentenced to death penalty after convicted of killing 02 people a few year back by MR
2. Gonawala Sunil the underworld figure by JRJ
Wher was the BASL those days ? were those constitutional ??
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K.Anaga / May 30, 2019
Is it not possible for the BASL to file a case in the Courts to challenge the pardon granted to to Gnanasara as to the basis of his release. Even though the case may have some legal snags, it will expose the actions of the President and let the people know the actual position. You may oppose, expose and then dispose despite the out come of the results.,
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soam / May 30, 2019
Sri Lanka, this guy is a incompetent imbecile. Chuck him out soon or the laugh is you, Sri Lankans.
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Saman / May 30, 2019
Sirisena is a IDIOT.
He is mentally not fit and suitable for the Head Of State.
This lunatic person acts madly and foolishly.
He does not know what does he does and what he says.
Country is in danger and in a dark era.
People must take a very firm resolution to not to caste their important vote for this mad man.
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Rohan / May 30, 2019
Why Islamic extremists like Rihard , Hezballah and many others are roaming free to continue with their chaos , so why not Ganansara?
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Mallaiyuran / May 30, 2019
How much Gnanam can raise in Middle East?
The poor begger has to doled out by Norway for his operation!
At least this time you showed some common sense by comparing Islamic extremists like Rishard , Hezbollah with Gnanam. Keep it up, soon to understand the rest.
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K.Pillai / May 30, 2019
Sirisena Should Not Have Exercised Executive Powers To Release BBS Gnanasara – BASL
BASL…BASL…BASL: Is this all? {“Sirisena Should Not Have Exercised Executive Powers To Release BBS Gnanasara”}
International activists and journalists have followed Gnanasara Thero’s involvement in the anti-Muslim 2014 Aluthgama Pogrom.
The conclusion is that Gnanasara fits the commonly held portraiture of a ‘Terrorist’.
Please tell us BASL: Is he a ‘Terrorist’? If not, why?
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