1 July, 2022


The Bounds Of Clementia’s Bonds: The SC’s Interim Order & The Presidential Pardon Of Duminda Silva

By Ruwan Laknath Jayakody

Ruwan Jayakody

In Danish director Nicolas Winding Refn’s ‘Bronson’, the filmic Bildungsroman about Michael Gordon Peterson aka Charles Bronson, dubbed by the British press as England’s most notorious and violent prisoner, actor Tom Hardy, playing the titular character in a vignette that the inmate in question describes as “what happens when murder goes wrong”, takes umbrage when he is informed by a nurse in connection with is query on “I just wanna know when my trial is and when I head back to the slammer (prison)” that “There is (to be) no trial” as the victim recovered, and that therefore, he is to be denied the creature comforts of prison (“I deserve to go to prison for what I did. I want my hotel room back.”), and instead moved to an asylum for the criminally insane. What a reversal of fortune.

In a Sri Lanka that is coming undone thanks to Executive dysfunction, a similar change of fate awaited the purported, one-time, local Pablo Escobar wannabe narco.

Up until early last week, former death row beefcake and Member of Parliament and incumbent Chairman of the National Housing Development Authority, Duminda Silva too was enjoying a life of liberty, and according to the rumour mills, nuptial bliss. That a murder convict, such as the likes of Silva, was living large in the first place, was entirely thanks to a, on all counts (legal, ethical, etc.) premature, pardon afforded to him by President Gotabaya Rajapaksa.

However, last week’s rude awakening came at the hands of the Supreme Court (SC), which had previously unanimously upheld a flawed conviction (flawed not because the Trial-at-Bar that sentenced Silva et al. to death was split Two-One, but because one of the High Court Trial Judges in the majority, Padmini Ranawaka was implicated in the Ranjan-gate scandal where she is alleged to have curried favour with the political authorities at the time by giving biased judgments in cases – with her being recorded in conversation with the then Deputy Minister and since imprisoned for contempt of court MP Ranjan Ramanayake via phone, specifically mentioning Silva’s sentencing as one given per the wishes of the then political masters, and thereby seeking an elevation, pre-retirement, to the Court of Appeal), and which last week issued, in a hitherto unprecedented move – as far as the annals of the country’s legal history are concerned – an interim order, suspending the operation of the pardon thus granted by the Executive President to Silva.

This interim order came in response to the reliefs prayed for by several petitioners including the deceased former MP Bharatha Lakshman Premachandra’s widow and daughter (former MP Hirunika Premachandra) and an attorney cum former Human Rights Commissioner, who had invoked the Court’s Fundamental Rights (FR) jurisdiction, challenging the grant of the said pardon, and for which petitions, leave to proceed was granted.

Silva who was subsequently arrested by the Criminal Investigation Department as per the Court order, has since been handed over to the custody of the Prisons Department, and for all intents and purposes, is likely to be restored to his pre-pardon, lot in life status quo of death row (note that his sentence was never commuted to life imprisonment by a panel), at least until such time the Court concludes the hearing of the matter.

It is simply too bad for Silva that the killer instinct possessed by a previous such pardonee over the Royal Park murder case – the latter death row convict who fled the country upon the receipt of the pardon from President Rajapaksa’s immediate predecessor, despite the pardon being similarly challenged – could not be converted, in Silva’s case, to the exercise of that most elemental survival instinct – flight.

Regardless of whether Silva is a victim of political vengeance and judicial corruption à la Ranawaka, for Silva’s part, it is worth noting the famous dicta of the United States (US) SC in George Burdick v. US which held that a pardon “carries an imputation of guilt; (the) acceptance, a confession of it”.

That said, given that all this legal hullabaloo is apt to make anyone take ill, Silva had, on the morn of the delivery of the said interim order, admitted himself to a hospital’s neurological ward, reportedly for treatment for seizures.

But where does this judicial precedent, if one may term it such, leave the status quo as far as the law governing the grant of pardons is concerned.

Writing for the majority in the Connecticut Board of Pardons v. Dumschat, Chief Justice (CJ) of the US SC, Warren Earl Burger noted that Presidential pardons “have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review.” Enter then, “the rarest of the rare”, courtesy the Indian SC.

The Indian SC while recognizing the power for the judicial review of decisions made by the President while exercising his/her pardoning power in a limited class of instances, in G. Krishta Goud and Another v. State of Andhra Pradesh and Others stated that it would not turn a blind eye to public power being exercised in an arbitrary or mala fide manner, including instances where the President exercises his/her power in a discriminatory manner. In Maru Ram v. Union of India with Justice V.R. Krishna Iyer writing for the majority including CJ D.Y. Chandrachud and Justice P.N. Bhagwati, it was held that “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. For example, if the Chief Minister of a State releases everyone in the prisons in his/her State on his/her birthday or because a son has been born to him/her, it will be an outrage on the Constitution to let such madness survive” while Justice S.M. Fazl Ali concurring in the same case, added: “Doubtless, the President and the State Governments have absolute and unfettered powers to grant pardon, reprieves, remissions, etc. This power can neither be altered, modified, nor interfered with by any statutory provision. But the fact remains that (the) higher the power, the more cautious would be its exercise. It is therefore manifest that while exercising the powers under the said Articles of the Constitution, neither the President, who acts on the advice of the Council of Ministers, nor a State Government is likely to overlook the object, spirit and philosophy (of the relevant legal provisions) so as to create a conflict between the legislative intent and the Executive power. It cannot be doubted as a proposition of law that where a power is vested in a very high authority, it must be presumed that the said authority would act properly and carefully after an objective consideration of all the aspects of the matter.” Making their case further, in Epuru Sudhakar and Another v. Government of Andhra Pradesh and Others, the Indian SC held that “Clemency is subject to judicial review and it cannot be dispensed as a privilege or act of grace” and thereby quashed the decision of a State Governor to commute the sentence of a convicted Congress activist.

The District Court of the US for the Northern District of Illinois had sent a Presidential pardonee back to prison on the ground that the pardon subverted the independence of the judiciary only to have the US SC subsequently reverse its’ (the District Court’s) decision in Ex parte Philip Grossman.

Although Peru’s SC of Justice, following appeals by victims, overturned and annulled a Presidential pardon granted on humanitarian grounds (cue irony), to former President Alberto Kenya Fujimori Inomoto after the latter was convicted for human rights abuses and violations including crimes against humanity, illegal search and seizure, kidnappings, murders, and inflicting bodily harm, corruption, embezzlement and bribery, and ordered him to be sent back to prison, the country’s Constitutional Court/Tribunal subsequently approved Fujimori’s release while the Inter-American Court of Human Rights has since reversed the release by the Constitutional Court/Tribunal.

Has the Lankan Judiciary, and the highest Court of the land for that matter, arrogated and usurped, by an act of judicial activism (as argued by the Attorney General’s [AG] Department which claims that the Court has no dominion over the grant of a pardon) or the exercise of judicial restraint, the Constitutionally granted prerogative of the Head of the Executive – the President, to pardon, and thereby upended the separation of powers doctrine, or has it simply, through judicial review, remedied a legal wrong, and restored that much talked about checks and balances? Either way, what one branch of governance has done (the Executive President), another branch of governance (the Judiciary) has undone, albeit partially.

As per Article 34(1) of the Sri Lankan 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 procedure (in keeping with due process) to be followed has been laid down in the proviso to Article 34(1)(d) of the Constitution.

The President, as per the proviso to Article 34(1) of the Constitution, has to first seek and obtain reports from the Trial Judges, which he has to then forward and send with instructions to the AG for advice, which (the said Trial Judges reports and the AG’s advice) in turn must be relayed to the Minister of Justice who will in turn forward the said Trial Judges reports and the said advice of the AG along with his/her (Justice Minister’s) recommendation/s, and report such back to the President, and due regard must in turn 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 National Authority for the Protection of Victims of Crime and Witnesses (NAPVCW) 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 Silva, the independence of the Judiciary has been undermined and the due process concerning the protection of the victims of his crimes has not been followed, and this pardon appears to have been made for extraneous purposes, thus impinging on the rule of law.

In the grant of the pardon to Silva, it is ultra vires the powers of the President as extraneous, undisclosed considerations and irrelevant factors have been considered in the grant of this pardon, and furthermore, the mandated Constitutional process in relation to the pardoning of a death row convict has likely not been followed.

Also, in this case, the Statutory requirement under the Assistance to and Protection of Victims of Crime and Witnesses Act 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 and duly complied with, and thus this pardon has prejudiced the rights of the victims and their family members. The failure to follow such Statutory requirements causes grave prejudice to the rights and entitlements of victims, and their dignity, whereas, per Section 3(a) of the Assistance to and Protection of Victims of Crime and Witnesses Act, victims are to be treated with equality, fairness and with respect to their dignity and privacy.

Moreover, the selection of Silva 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.

As it does not appear that consideration has been given to the severity of the crime or the rights of the victims, there were no reasonable grounds warranting this pardon.

This foul Executive fiat emanating from the kangaroo Court of Rajapaksa is therefore in blatant disregard of the rule of law, and has made a mockery of good governance, and worse still, also constitutes a coup de grace to the independence of the Judiciary.

The power of pardon is necessary in that it provides for the possibility of rectifying miscarriages of justice and recognizing mitigating circumstances. However, 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 absolute or 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 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, and any other law, the reports, advice and recommendation/s 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 the pardoned offender into society.

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 public and the rights of victims, special legal rules and guidelines must be formulated to govern the exercise of such power. These special legal rules and guidelines need to be formulated in order 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.

Towards this end, it is the Minister of Justice, Prison Affairs and Constitutional Reforms, in consultation with the President’s Secretary, the Commissioner General of Prisons, the NAPVCW and other stakeholders such as the official bar (the AG’s Department) and the private and unofficial bar (the Bar Association), criminologists and forensic psychiatrists, and groups with a recognized track record of activism on behalf of the rights of both victims of crime and prisoners, who should 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.

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 President – the incumbent and those before him – have violated the powers conferred upon them as per Article 34 of the Constitution to grant pardons to offenders.

Thus, if special legal rules and guidelines are not formulated to govern the exercise of the power of pardon under Article 34 of the Constitution, there is a real likelihood of an imminent infringement of the FR 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.

“The administration of justice by the courts is not necessarily always wise or certainly considerate of (the) circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular Governments, as well as in monarchies, to vest in some other authority than the courts, (the) power to ameliorate or avoid particular criminal judgments. It is a check entrusted to the Executive for special cases. To exercise it to the extent of destroying the deterrent effect of judicial punishment would be to prevent it; but whoever is to make it useful must have full discretion to exercise it. Our Constitution confers this discretion on the highest officer in the nation in confidence that he/she will not abuse it,” US CJ William Howard Taft, writing for a unanimous Court in Ex parte Philip Grossman, held.

Ultimately, it is the bounden duty of the President and the SC to do justice to the sacrosanct bonds of Clementia*.

* Roman goddess associated with the virtues of clemency, leniency, mercy, forgiveness, penance, redemption, absolution, acquittal and salvation.

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Latest comments

  • 5

    Marvellous article, RLJ. 
    Thank you for presenting all this to us. I struggled with it at first, but then began to cope with your complex sentences, & hold on to each element until they came to resolution. 
    An immensely informative, helpful & important unravelling of this confusing legal situation.
    For which, much thanks.

  • 2

    This is like “casting pearls before swine”.
    Our swine are a special variety who eat eat each others’ excrement.
    One swine guilty as hell of murder, forgives another swine.

  • 1

    This pardon given by the Executive Presidency[EP ] and which was successfully challenged in Courts is more than enough to do away with this curse of the EP…………

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