By Mohamed Harees –

Lukman Harees

‘We shall never prevent the abuse of power if we are not prepared to limit power in a way which occasionally may prevent its use for desirable purposes.’- Friedrich August von Hayek

International media has described it as an’ Unpardonable Pardon’. It was yet another sad day for Sri Lanka where the height of impunity and scant regard for the concept of fairness went to another appalling low level, signifying a chronic crisis affecting the process of justice. It was also a sad day not just for the family of the victim; it equally brings grief to the right thinking people across racial divides-Sinhalese, Tamils and Muslims too. It is yet another dangerous development regarding the arbitrary manner in which the President can act unilaterally to reverse a judicial decision, abusing his Presidential powers to pardon vested on his office under Article 34 of the Constitution of Sri Lanka. Does it not defeat the very purpose of having the separation of powers as stipulated in the same Constitution to ensure checks and balances?  

Ever since this government came into power, release of Duminda Silva was long speculated, though no such move was initiated, until now. The news of a possible release has been in the air. Many background developments were seen. To give it a sham justification, there was the absurd Presidential Commission chaired by former Supreme Court Judge Upali Abeyratne, which looked into so-called political victimizations and recommended the release, citing the evidence as fabricated. Besides, many government MPs and some monks also made a plea to the President in this regard. And there is also eagerness to keep a pre-election promise to Reno Silva, his brother who owned the influential broadcasting network that helped the SLPP  to come to power. 

Thus, as expected, Gotabaya, abusing his presidential powers once again, chose the Poson time to show his disjointed ‘Buddhist’ compassion and ultimately signed the papers to release the much talked about Duminda Silva who has been having a luxurious prison life, along with some LTTE activists detained under PTA. Thus a criminal who was sentenced to death by the Sri Lankan courts was set free, making a mockery of and striking another nasty blow on, the administration of justice system in Sri Lanka. In fact, UN tweeted,’Presidential pardon of Duminda Silva, a former MP convicted of the murder of a fellow politician, is another example of selective, arbitrary granting of pardons that weakens rule of law and undermines accountability’.

In fact, a special three-member panel of High Court judges , Shiran Gooneratne, Padmini Ranawaka Goonetilake and MCGS Morais. acquitted seven suspects and sentenced five including former MP Duminda Silva to death on September 8th 2016. Consequent to an  appeal, the Supreme Court reviewed the case and finally on 11 October 2018 rejected the appeal and upheld the lower court’s ruling. Many then hailed the verdict as proof that judicial independence had been restored in Sri Lanka.this verdict gave some aura of hope for many other families to seek justice, especially regarding the murders that happened during the previous Rajapakse era, including the killing of former editor Lasantha Wickrematunge, disappeared journalist Prageeth Ekneligoda and rugby player Wasim Thajudeen. In addition , being a major player in Colombo’s illegal narcotics trade, Duminda Silva’s conviction was widely popular with a wide section of the Sri Lankan populace and therefore for Gotabaya, Abeyratne PCoI report gave the much needed ‘legal’ justification to release him.

The action of Gotabaya was neither new or novel. At the peak of the Corona crisis last year, in March 2020, he brazenly pardoned another criminal Sunil Ratnayake, an army soldier on death row for massacring eight Tamil civilians, including four children – one as young as five years old.  He was accused, along with few others, of torturing and murdering eight Tamil civilians at the Mirusuvil army camp, close to northern Jaffna, a former rebel stronghold. This pardon then surely raised much applause from the a largely nationalistic Sri Lankan electorate. The Ratnayake case was also significant as it was also   a very rare case where a security forces personnel was prosecuted in Sri Lanka. 

The presidential pardon was then described as an affront to the victims and yet another example of the failure of Sri Lanka to fulfil its human rights obligations to provide meaningful accountability for war crimes and crimes against humanity, by UN High Commissioner for Human Rights, Michelle Bachelet..As Amnesty International  then said, ‘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’. Accountability, alas, has been so rare for human rights violations of the ethnic minorities in today’s Sri Lanka.

Yes! the global Corona crisis may drive this abuse of Presidential power go into oblivion and no amount of protest will reverse this decision as the slavish mentality of the majoritarian electorate may tend to justify this decision, in ways best known to them.  But as human rights activists, it is our duty to highlight this gross abuse of power by Gotabaya as yet another blow to the judicial independence of Sri Lanka in the much trumpeted democracy, and sadly being polluted by a corrupt Executive. It’s not just the abuse of power that’s the problem. It’s the power to abuse. 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.

In fact Gota’s predecessor Sirisena also was guilty of misusing the power to pardon and did it twice. It was in 2019 that President Sirisena pardoned a well known criminal 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.  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. 

Pardoning of criminals has set a dangerous precedent whereby properly tried, convicted and sentenced persons can be released on the whims of the President and government. 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 and political sycophants, can expect to enjoy preferential treatment when it comes to obeying the law. 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. 

The Bar Association (BASL) also expressed their concern about this continuing trend to pardon criminals. Their statement staed, ‘BASLis mindful that in the past too there have been instances where selective pardons have been granted without any material to justify the basis on which the respective prisoners were selected for granting of such pardons, and the BASL has on those occasions strongly taken up the same position which the BASL is now taking up. Any pardon to be granted under Article 34 of the Constitution should be made after a careful analysis of the necessity to grant such a pardon as stipulated in the proviso to Article 34 (1) of the Constitution. In the aforesaid circumstances, the BASL has written to His Excellency the President and requested that His Excellency convey to the BASL and to the general public:

(a) The basis on which Duminda Silva was selected for the purpose of granting a pardon under Article 34 (1) of the Constitution; (b) The circumstances which were taken into consideration in the granting of such pardon; The reasons as to why the case of Duminda Silva stands out from others who are currently sentenced; (d) Whether a report was called for by His Excellency the President from the Trial Judges as required by the Proviso to Article 34 (1) prior to granting of the pardon to Duminda Silva and if so the contents of the report; (e) Whether the advice of the Attorney General was called for prior to granting of the pardon to Duminda Silva and if so the contents of such advice; (f) Whether the recommendation of the Minister of Justice was obtained prior to granting of the pardon to Duminda Silva and if so whether the Minister of Justice made such a recommendation;

The Bar Association of Sri Lanka also ‘maintains that if any one or more considerations stated above, were not satisfied in the current case, the pardon granted to Duminda Silva would be unreasonable and arbitrary and will result in erosion to the Rule of Law and result in a loss of public confidence in respect of the administration of justice’.

The pardoning power is the most sacred and difficult of all executive functions. The president’s ability to pardon is an awesome power. When used as intended, it is a powerful tool for justice. However, it can also be a tool of greed and perversion if used inappropriately and contrary to its purpose. 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. 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

However, the breadth of this power has sadly made it susceptible to misuse. In the Sri Lankan context, the present provisions in the Constitutions allows for improper cover-up and self-interested pardons.. 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. 

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. 

As a nation, we must look long and hard at this power gone awry in the incumbent President’s hands and assure ourselves that future presidents can’t do similar damage and show a similar contempt for their high office. Therefore, in the greater context, where the pardon power lacks real limitations, a watching public can and must express its disapproval. The vitality of democracy ultimately depends on its people. Otherwise , Sri Lanka will sadly further tarnish its image in the international community as a country, known for affording a virtual haven for the criminals and the corrupt in their midst ,at the whims and desires of a corrupt and self-centered Executive, and where rule of law and process of justice is just mockery and a laughing stock.