By Raj Gonsalkorale
All
animals are equal but some are more equal than others- George Orwell
Presidential pardons
in Sri Lanka seem to have conferred a constitutional privilege for some
citizens to be more equal than others, even for those convicted of murder by
the highest court in the country, the Supreme Court. Another feature associated
with these pardons is that politicians from the major parties, do not make much
noise over these compared to other comparatively less important issues for
which they protest, march the streets and go berserk on social media.
The constitution of
the country permits the President to grant pardons for convicted criminals. The
relevant clause is noted below
34.
(1) The President may in the case of any offender convicted of any offence in
any court within the Republic of Sri Lanka – (a) grant a pardon, either free or
subject to lawful conditions; (b) grant any respite, either indefinite for such
period as the President may think fit, of the execution of any sentence passed
on such offender; (c) substitute a less severe form of punishment for any
punishment imposed on such offender; or (d) remit the whole or any part of any
punishment imposed or of any penalty or forfeiture otherwise due to the
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 shall forward such report to the
Attorney-General with instructions that after the Attorney-General has advised
thereon, 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.
While the President of
the country has the power to pardon, in the case of any person serving a death
sentence, the above caveat requires the President to cause a report to be made to him by the
Judge who tried the case and shall forward such report to the Attorney-General
with instructions that after the Attorney-General has advised thereon, 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.
Leaving aside any
humanitarian, moral or political arguments, the issue in all instances where a
President has pardoned a criminal serving a death sentence, is whether the
above process enshrined in the constitution has been followed or not. This is the acid test in regard to the
constitutionality of a President’s decision, and whether or not the country is
one of laws.
The clause however
does not extend to criminals serving other sentences, and in this regard it
appears that the Executive President has an unfettered power to pardon
criminals who have committed crimes for which they have not been served a death
sentence. It is time perhaps that society questioned this power granted to one
individual and commenced a discussion on a procedure that should be followed
prior to granting a pardon to any convict serving a sentence imposed by the
Courts.
Presidential pardons are
nothing new, in Sri Lanka and in several other countries, and they have been
granted without controversy and with much controversy. The real issue is
whether there is a process in place for one person to effectively over rule a
decision made even by the highest court in a country.
Some
countries have empowered their judiciaries to review executive pardons. For
instance, in the United Kingdom, the courts have the jurisdiction to review the
exercise of the Royal Prerogative of Mercy by the monarch (on advice of the
justice secretary) ‘in accord with accepted public law principles’. Thus, in
the United Kingdom, the power to grant pardons does not go un-checked.
Meanwhile, in India, through the landmark case of Epuru Sudhakar & Anor v. Government
of Andhra Pradesh & Ors, the Indian Supreme Court held
that it has jurisdiction to judicially review the pardoning power of the
president.
The
controversy with Presidential pardons has arisen again following the pardoning
of former MP Duminda Silva who had been convicted for murder and sentenced to
death by a High Court and the sentence unanimously ratified by the Supreme
Court, by President Gotabaya Rajapaksa.
Ahalya Lelwala, a Research Assistant
attached to the Legal Research team at Verité Research, an interdisciplinary
think tank that provides strategic analysis and advice for governments and the
private sector in Asia, writing in Verite Research on the 21st of
July 2020 (https://www.veriteresearch.org/2020/07/21/presidential-pardons-in-sri-lanka-an-unchecked-executive-power/), says, quote On
26 March 2020, President Gotabaya Rajapaksa granted a presidential pardon to
former Lance Corporal Sunil Ratnayake, a prisoner on death row for the murder
of eight persons in Mirusuvil in 2000. Ratnayake was sentenced to death by a
Trial-at-Bar bench of the Colombo High Court in June 2015. In the case of Rathnayake Mudiyanselage Sunil
Ratnayake Vs Hon. Attorney General, SC TAB 01/2016, decided in
April 2019, a five-judge bench of the Supreme Court affirmed this sentence.
Former President
Maithripala Sirisena granted two such presidential pardons during his term in
office. In May 2019, he pardoned secretary general of the militant
Sinhala-Buddhist group Bodu Bala Sena, Venerable Galagoda Aththe Gnanasara
Thera.
The Thera was serving
a six-year prison sentence for contempt of court imposed by the Court of Appeal
in August 2018 (Galagodaaththe Gnanasara Vs Hon. Attorney General, CA (CC)
Application No. 04/2016). His subsequent appeals against the prison sentence
filed in the Court of Appeal and Supreme Court were dismissed.
The second pardon by
President Sirisena was granted on 9 November 2019 to Don Shramantha Jude
Anthony Jayamaha, who was sentenced to death in the Royal Park Murder case by
the Court of Appeal in 2012. The Supreme Court in 2014 affirmed this sentence.
The president’s pardon was reportedly on the basis of requests made by the
Buddhist clergy, and other parties, including the considering of reports
prepared by the Prisons Department and several other state institutions.
Mary
Juliet Monica Fernando, the wife of a former Minister of Parliament had been
sentenced to death for a double murder in 2005. Subsequently, on International
Women’s Day in March 2009, former President Mahinda Rajapaksa granted her a
presidential pardon.
In
addition to the above high-profile pardons, Sri Lankan presidents have
routinely granted mass scale pardons to persons convicted of minor offences.
These pardons are usually granted on special days, such as Independence day,
Vesak day and Christmas” unquote.
It is not clear
whether the procedure followed by President Gotabaya Rajapaksa was consistent
with the constitutional requirement.The same goes for President Sirisena
in regard to the pardon granted to Anthony Jayamaha and whether it was in line
with what is specified in the constitution. Neither is it clear whether
President Mahinda Rajapaksa adhered to the constitutional provision in
pardoning Monica Fernando.
Previous
Presidents have granted pardons to convicted criminals too. Lakdev Liyanagama writing in the Daily News
on 30th May 2019 cites what he states as perhaps one of the first Presidential pardons
to raise concern, that of Sunil Perera, better known as ‘Gonawela Sunil’ who
was serving a sentence for rape. Perera, who had close links with the United
National Party (UNP) was granted a pardon by then President J. R. Jayewardene. Liyanagama
also mentions President Ranasinghe Premadasa pardoning Manohari Daniels, who
was convicted of aiding and abetting the Liberation Tigers of Tamil Eelam
(LTTE) to carry out a bomb attack opposite Zahira College, Maradana in 1987
that killed forty persons. Daniels was pardoned at a time when the Premadasa
government was having ‘peace talks’ with the LTTE, as a gesture of goodwill in
what was a bid to ensure the talks succeeded.
Several newspaper reports mentions that in April 2014, ten former PSD
officers were released from prison as they were granted Presidential Pardons by
President Mahinda Rajapaksa.
The Panadura High Court judge, Kusala Sarojani Weerawardana, had found
these ten Presidential Security Division (PSD) officers who were accused of
assaulting two famous songsters Rookantha Gunathilike and Chandraleka Perera to
be guilty of the charges and sentenced them to four and a half years of
rigorous imprisonment. The PSD officers had entered the living premises of the
two famous singers, shaved their heads and assaulted them in the year 2000. The
PSD officers allegedly did this due to the two singers participating publically
at an opposition UNP political rally. The attack on the two singers was
political revenge for them participating in the opposition rally. At the time
of the attack Chandrika Kumaratunga was the executive
president. The Presidential Security Division had acquired a not so dignified
reputation during this time as they were allegedly used for political attacks
on opponents of the government.
There cannot be any doubt
that the Presidential pardons mentioned were nothing but politically motivated
actions on the part of the Executive and the political party he or she
represents. The privilege of being pardoned would not be extended to others in
the death row who do not belong to the elite club of persons who have in common
the motto, it is who you know and not what you know that matters”.
Death sentences are looked
at as archaic and medieval by many as the belief that an eye for eye practice
is not an act of meting out justice in this day and age. Neither is there any
conclusive evidence that that passing a death sentence on anyone has deterred
other persons from committing offences punishable by such a sentence. In a
detailed study carried out by the Australian Broadcasting Corporation in 2015
titled Fact check: No proof the death penalty prevents crime”
(https://www.abc.net.au/news/2015-02-26/fact-check3a-does-the-death-penalty), it states
clearly that there is no conclusive evidence that the death sentence has acted
as a homicide deterrent.
Amnesty international reports that there are around 20,000 persons who
are in the death row throughout the world.
In an article by Max Roser and Hannah
Ritchie in
the website Ourworld in Data in 2019, states that more than 400,000 people die from homicide each year – in
some countries it’s one of the leading causes.
A citation taken from an
Oxford School Education Blog is worth repeating here to illustrate a what some
may interpret as a simile in the political administration of the country. Quote,
in George Orwell’s allegorical novel Animal
Farm, animals conspire to take control of their farm from humans,
establishing ‘Animalist’ commandments to prevent the reproduction of the
oppressive behaviour of humans. Unfortunately, as time goes on that is exactly
what happens and the pig Napoleon ends up changing the final rule of ‘All
animals are equal’ so that it reads that ‘All animals are equal but some
animals are more equal than others’. This is a parody of Stalinist Russia which
Orwell was criticising, unquote.
In Sri Lanka, not of course
dissimilar in other democratic countries, the parody of Stalinist Russia
perhaps is alive and well as people vote in one party to replace another in
order to, as the Blog says create their vision of a Utopian society, only for
it to become another group’s dystopia”. The blog goes on to say way a
society is structured may change but human nature does not necessarily follow
suit. Thomas Hobbes viewed human life as ‘nasty, brutish and short’ and
therefore we should perhaps not be surprised if time and time again we
replicate previous inequalities and tyrannies with only a change of ‘players’.
The Animal Farm illustrates
this. Some might say the general public will continue to have the same wine in
different bottles irrespective of a change of guard at an election.
Court decisions are not
always right, and there have been many miscarriages of justice throughout the
world. While a person with wealth, and right connections, will always have a
chance of some redress, like a pardon, and perhaps even a re trial on discovery
of new evidence, most convicted persons have no recourse to such a process as
their case will not generate any interest, and they will languish in jail for
the duration of their sentences or be executed in countries where death sentences
are carried out.
No doubt there are many
instances where a person accused, tried and convicted of murder maintain their
innocence, and they are justly or unjustly convicted and sentenced to death or
a life imprisonment. Justice will be meted out in a law enforcement and
judicial system that functions efficiently, effectively and impartially, free
of political interference and free of inducements”. There is a question mark
whether any country could boast of having a perfect system where all of above
are met in all instances by everyone engaged in law enforcement and justice.
Consequently, there is the possibility of some persons being executed or
committed to life in prison for a crime they never committed.
A judicial review process
even beyond the highest court in the land, may be an avenue that could be
considered although the parameters of such a process would be extremely hard to
implement. A Presidential pardon system maybe one such avenue, but it has to
include a formal review process and some parameters as to who should be subject
to such a review process.
Clearly, such a process
cannot include political favourites at the expense of others who do not
subscribe to the motto It is who you know and not what you know that matters”.
Of course in an imperfect society riddled with corruption and other vices, what
one knows might lead them to persons of influence and power and a consequential
symbiotic existence.
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