By Rohana R. Wasala

The cue for writing this piece came from The Island editorial of (Saturday) June 26, 2021 entitled Presidency should be straitjacketed”, which is about the current controversy over the presidential pardon given to former SLFP MP Duminda Silva who had been convicted and sentenced to death for his alleged involvement in the murder of four persons in 2011. The Island editorial reflects the prevalent negative take on the Duminda Silva pardon.There is reason for it. The editor notes, incidentally, with qualified approval, the fact that the US ambassador has also expressed her displeasure at the presidential pardon granted to the former MP, but in the same breath he asks her whether the US respects the Sri Lankan judiciary, recalling how it tried to save Prabhakaran who had been tried in absentia and sentenced to jail for masterminding the 1996 Central Bank bombing which left 91 innocent people dead and dozens grievously injured, and caused much material damage to the nation.  The editorial concludes with the sensible suggestion that The constitutional provision that enables the Executive President to pardon convicts will continue to be abused, and what needs to be done, we repeat, is to prune it down. Before the ongoing protests peter out, a campaign should be launched to achieve that end.” 

(The following is a personal opinion of mine apropos the matter in question. I am articulating it as a senior Sri Lankan domiciled abroad who is a layperson where legal problems are discussed; it is offered to the interested readers for what it is worth. I would like to state here that, according to my lights as an ordinary person relying on expert opinion and common sense, the President is beyond reproach in this connection. Granting the pardon is his constitutional prerogative, and so it can’t be called in question. And he cannot be accused of having interfered with the judiciary, because he hasn’t. He has pardoned Duminda Silva while he still remains convicted of the crime for which he was punished; by asking for and receiving a pardon, the latter has accepted the guilty verdict. So, that remains intact. The President has done no wrong, but had his and Duminda’s advisors done right (neither side had done so, apparently, for some mysterious reason), he could have been saved the necessity to grant a pardon in this instance, because the exposure, via the shocking Ramanayake tapes, of a pre-verdict conspiracy to convict the accused Duminda Silva willy nilly provided fair grounds for him to successfully appeal, as he could and should have done, for a seven member bench of supreme court judges to consider his acquittal on the basis that he didn’t get a fair trial (as argued by a well known legal luminary named in this article). Let me take this opportunity to say a word of consolation to the two families caught up in this tragic flow of events. As a compatriot and a fellow human, I deeply empathise with them, understand their suffering and share their pain. I am also aware of the similar suffering of the other three bereaved families. Metta to all!)

I, for one, endorse the idea of subjecting the institution of presidential pardon to some kind of accountability guarantor in order to prevent its possible abuse, but with the important reservation that this ‘pruning’ or ‘straitjacketing’ should not undermine the efficacy of the executive pardon as ‘an act of grace’ which the term denotes (thelawdictionary.org). An executive/royal/presidential pardon can be used to provide relief for a convicted person who is subsequently deemed to deserve it: for example, a death raw prisoner like Duminda Silva himself who came to be seen by the public as an unsuspecting victim of a miscarriage of justice in terms of evidence that emerged at least  four years after sentencing. The Island editor’s forthright observation that Ranjan Ramanayake’s telephone recordings that contain his conversations with judges and senior police officers on criminal investigations and court cases, during the yahapalana days, have not only revealed how politicians exert influence on some members of the judiciary and the police but also caused an erosion of public confidence in the judiciary and the police” has been directly prompted by the revelation of a conspiracy that had been plotted to pervert the course of justice against Duminda Silva. The clear case of a breach of natural justice had to be remedied. But the grant of a presidential pardon to him in order to provide a remedy seems to have been effected in an extremely problematic manner.

It is appropriate, before proceeding, to briefly outline the background to the Duminda Silva pardon episode, which is regrettably entangled with the underhand politics of certain adversaries with an anti-Buddhist religious quirk according to a prominent monk, who are exploiting it to score political gains. Duminda Silva, popular among his supporters as a benefactor of the poor, who hails from a philanthropist business family, was first elected to the Western Provincial Council in July 2004 as a member of the United National Party (UNP). It was in 2005 that the first term of the United People’s Freedom Alliance (UPFA)’s  Mahinda Rajapaksa as president started. Duminda Silva defected to the Sri Lanka Freedom Party (SLFP), the principal partner of the UPFA, in 2007. The UNP charged that he did so in the hope of escaping justice in respect of some criminal cases pending against him, in addition to getting the Asia Broadcasting Corporation (ABC)’s licence restored. (The ABC is today listed under Rayynor Silva Pvt Ltd which runs five radio channels and the Hiru TV. Rayynor is Duminda’s brother.) Duminda was re-elected as a provincial councillor in April 2009. Then, in the April 2010 parliamentary election, he was elected as a Colombo district MP under the UPFA.

It appeared that MP Duminda Silva was involved in a fierce personal rivalry with MP Bharatha Laksman Premachandra, a fellow member of the SLFP/UPFA. During the relatively unimportant local government election of 2011, the two of them, while leading their respective groups of supporters during canvassing, came face to face, and apparently, there was a violent clash between them. A shooting took place in which both got injured, Premachandra fatally. Silva suffered serious head injuries. Three others from Premachandra’s group also died. This happened on October 8, 2011. The latter was hospitalized in Singapore. A magistrate’s court issued an arrest warrant on Silva on November 15, 2011. 

On September 8, 2016, a High Court Trial-at-Bar found Duminda Silva and four others guilty of murdering four people including Premachandra. But the decision of the court was not unanimous since Judges Padmini Ranawake and Charith Morais decided on a guilty verdict on five of the suspects, while Judge Shiran Gunaratne acquitted all suspects of all charges. However, before the verdict was announced, there were allegations that Judge Gooneratne was involved in a conspiracy to acquit the main accused Duminda Silva. The Wikipedia claims that Sri Lankan media carried details of this alleged involvement of Judge Gooneratne. The High Court decision was appealed against at the Supreme Court. A five-judge bench of the Supreme Court unanimously upheld the the three-judge High Court verdict, and its ruling was announced on October 11, 2018.  

What is given above was mostly derived from the Wikipedia. The particular page was last edited on June 28, 2021. However, it should be remembered that the entries about Sri Lanka, as usual, cannot be regarded as free from bias (in favour of the previous markedly pro-west yahapalanaya and against the more independent current administration that replaced it). There is no reference to the Ramanayake tapes (a fact, not a rumour) to countervail the negative comment on Judge Shiran Gunaratne. The Wikipedia should not be blamed for this, because interested fair-minded and knowledgeable citizens can appropriately update these pages if they want to set the record straight in the national interest. Regrettably, there is no foolproof remedy for the relentless misinformation against Sri Lanka spread through the Wikipedia and other international media such as the CNN, Al Jazeera, and the BBC. But this is a different matter, and should be dealt with separately. However, it needs to be explained how the Duminda affair has been mishandled by both the parties concerned (i.e., the two groups of advisors separately representing the pardoner and the pardoned). 

On the day of Poson (June 24, 2021) President Gotabaya Rajapaksa pardoned 93 prisoners including 16 Tamil prisoners convicted of terrorist crimes. This is in accordance with Article 34 (1) of the existing Sri Lankan constitution, which invests the President with the power of  granting a pardon either free or subject to lawful conditions” to any offender convicted of any offence in any court within the Republic. Article 34 (1) runs as follows:

The President may in the case of any offender convicted of any offence in any court within the Republic of Sri Lanka-

1. grant a pardon, either free or subject to lawful conditions
2. grant any respite, either indefinite for such period as the President may think fit, of the execution of any sentence passed on such offender
3. substitute a less severe form of punishment for any punishment imposed on such offender; or
4. remit the whole or any part of any punishment imposed or of any penalty or forfeiture otherwise due to Republic on account of such offence: 

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 forward such report to the Attorney-General with instructions that after the Attorney-General has advised thereupon, 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.”

The gratuitous dragging in of the Poson as a symbol of Buddhist compassion and mental serenity into the graceful act of releasing long suffering prisoners was rendered suspicious because its sincerity was somewhat compromised by the inclusion of the special case of the controversial Duminda pardon. Undoubtedly, it was not meant to reflect positively on the President, whoever (among his advisors) contrived it.  The release of the Tamil prisoners was hailed as a long overdue positive step towards so-called reconciliation by the agents of certain hegemonic interventionist powers who are pursuing their respective geopolitical agendas at the expense of hapless ordinary Sri Lankans’ human rights, democracy, national security, independence, political stability, and economic wellbeing.  They raised a howl of protest when the imprisoned whistle-blowing BBS leader monk (the neglect of whose prior warnings led to the Easter bombings that killed over 270 and injured some 500) was given a well deserved pardon by the previous president. Amidst the hardly grateful accolades over release of convicted terrorist offenders, not unexpectedly, alarm bells started ringing among Sri Lanka’s critics when, shortly after that, a special presidential pardon was granted to Duminda Silva, ex-SLFP MP who had been convicted of murder and sentenced to death by a three judge bench in 2016, later confirmed by a five judge supreme court bench in 2018. 

The informed legal opinion at present seems to be that Duminda Silva could have easily secured quite lawful  exoneration on the basis that he had been denied a fair trial. This would have been better for Duminda Silva because a mere presidential pardon does not absolve him of guilt proven in a court of law ‘beyond reasonable doubt’; now the guilty verdict will remain for life. If he enters parliament (the path towards which has now been cleared of all impediments by the free pardon), he will be an embarrassment not only to that august body, but to the whole government and the country. I am not a lawyer, but only a layman using common sense; I am repeating here what well known defence lawyer Tirantha Walaliyadda PC recently explained, which I hope I have understood correctly (Please see below). As far as I know he has a reputation as a senior lawyer who has shown active concern over a long period of time for upholding and preserving the independence of the judiciary and the integrity of the law enforcement authorities and lawyers. He once wrote: The Judiciary, law enforcement, and the Bar comprise the backbone of the democratic system” (‘Murder of the Judiciary’/Colombo Telegraph/September 1, 2012).

Incontrovertible evidence to prove that Duminda Silva did not get a fair trial came to light relatively recently when  MP Ranjan Ramanayake’s privately and arbitrarily recorded secret telephone exchanges, which had taken place before the announcement of the 2016 three-judge High Court Trial-at-Bar decision, between him, High Court Judge Padmini Ranawake, and former CID director SSP Shani Abeysekera, together conspiring to get a guilty verdict, meaning a death sentence, passed on Duminda Silva. (By the way, Shani Abeysekera has been described as a ‘Sherlock Holmes’ by the Sri Lanka bashing press!) These tapes were freely broadcast over the local electronic media, and widely bruited about by the print- and online-based press. For the  commonsensical Sri Lankan public, any refusal to grant Duminda Silva a presidential pardon would have been incomprehensible, the possible legal ramifications of such a pardon being generally beyond their ken. Duminda Silva’s popularity among the common people of his constituency was bound to turn his further incarceration into a cause of public outrage. In this connection, the President cannot be accused of having interfered in matters of the judiciary; he has only exercised his presidential prerogative to free a convicted prisoner.  He must have thought about the public perception that prevailed that Silva had been subjected to a miscarriage of justice as revealed by the Ramanayake tapes. 

As the law now stands (See Article 34.1 quoted above), the President’s pardoning of Duminda Silva cannot be questioned. The executive pardon is a useful institution when applied in the manner and spirit intended. Shouldn’t the presidential pardon prerogative be taken as an effective check on the power of the judiciary (which itself is open to manipulation by corrupt elements among the law enforcement authorities, i.e., investigating police officers and prosecuting and defending lawyers); in other words, the constitutional provision for granting  presidential pardons is a legitimate means of bringing about a balance between the judiciary and the executive in the interest of the public weal. Like the other branch of government, namely, the legislature,  these two are manned by humans, but humans are not infallible. An act of grace is a useful way to restore fairness where it seems to have been denied to an accused person due to human fallibility. To preclude the possibility of misapplying the  presidential pardon prerogative ( which is nothing if not an an act of grace) to help politically important offenders to evade justice (the pardon of convicted rapist Gonawala Sunil by JRJ, that the Island editorial mentions, is a case in point), the fallible human being who wields executive power as president on behalf of the people can be made accountable to them through a  simple amendment to the existing constitution according to the aforementioned lawyer Tirantha Walaliyadda PC. 

This needs reference to a ‘Colombo Today’ video uploaded to the You Tube (2021-07-02) of a press conference called by Mrs Sumana Premachandra (widow of murdered Bharatha Lakshman) to protest against the grant of a presidential pardon to Duminda Silva, who had murdered her husband and three others in cold blood” (‘amu amuwe’ as she put it). She declared that she will  hold the President responsible for any harm done or threat posed in the future to the lives of herself, her daughter, and any other members of her family as a result of this act of his. She also warned about the likely deleterious national and international consequences of the move. Mrs  Premachandra stated that the Bar Association of Sri Lanka (BASL) and her daughter former MP Hirunika Premachandra had written to the President about the matter and were awaiting a reply. She thanked the US ambassador and the UNHRC for expressing concern about the pardoning of Duminda Silva. Mrs Premachandra said that she would, however, desist from taking it to Geneva as the ultimate sufferers of the consequences of such a move would be the poor people of Sri Lanka. Then she invited PC Tirantha Walaliyadda to connect via zoom, who, she said, had done a lot to bring Duminda Silva to book when the latter was abroad after the crime. It is apparent that Walaliyadda addressed them from his office. 

In his terse remarks, the normally outspoken veteran lawyer stressed three points:  (1) By asking for and receiving the pardon, Duminda Silva accepted his guilt over the four murders, thereby condemning himself to a lifelong status of convicted murderer. He thus unnecessarily forfeited the valuable chance he had to successfully appeal for a seven-judge supreme court bench to consider his acquittal on the ground of having been denied a fair trial, which would have been good him personally and saved the President the embarrassment of a presidential pardon that potentially set the outside world laughing (though he didn’t violate the constitution by granting the pardon). (2) The President did not interfere with the judiciary as charged in certain quarters. He just used his lawful presidential power to pardon him, while leaving the guilty verdict that had been passed on the pardoned intact. However, Duminda Silva, though permanently stigmatized for a heinous crime, can become an MP and participate in law making, or even get a ministerial post and perform executive duties! Will the people be ready to accept laws passed by such a parliament? What will happen if this sort of thing goes on without being checked? (3) The matter is grave, but there is a simple solution. Just introduce a minor amendment to the constitution which would require the president to present to Parliament the day following the grant of a pardon a written explanation setting out the reason/s why it was granted. The document must go to the Hansard. Its effect will be felt at the next election. No parliamentary debate is possible or required, because a presidential pardon cannot be set aside by parliament. This will stop any future abuse of the presidential pardon institution. 

PC Walaliyadda expressed dismay that the President who is not a lawyer has not been properly guided by his advisors. My concern, like that of any fair-minded Sri Lankan, is about how the President could stick to a course of action with single-minded doggedness, while trustfully relying on the recommendations of such advisors, particularly at this critical juncture.