{"id":116001,"date":"2021-07-11T17:14:23","date_gmt":"2021-07-12T00:14:23","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=116001"},"modified":"2021-07-11T17:14:23","modified_gmt":"2021-07-12T00:14:23","slug":"duminda-silva-pardon-affair-mishandled-has-the-president-been-led-up-the-garden-path","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2021\/07\/11\/duminda-silva-pardon-affair-mishandled-has-the-president-been-led-up-the-garden-path\/","title":{"rendered":"Duminda Silva pardon affair mishandled! Has the President been led up the garden path?"},"content":{"rendered":"

By Rohana R. Wasala<\/em><\/span><\/h2>\n\n\n

The\ncue for writing this piece came from The Island editorial of (Saturday) June\n26, 2021 entitled Presidency should be straitjacketed\u201d, which is about the\ncurrent controversy over the presidential pardon given to former SLFP MP\nDuminda Silva who had been convicted and sentenced to death for his alleged\ninvolvement in the murder of four persons in 2011. The Island editorial\nreflects the prevalent negative take on the Duminda Silva pardon.There is\nreason for it. The editor notes, incidentally, with qualified approval, the\nfact that the US ambassador has also expressed her displeasure at the\npresidential pardon granted to the former MP, but in the same breath he asks\nher whether the US respects the Sri Lankan judiciary, recalling how it tried to\nsave Prabhakaran who had been tried in absentia and sentenced to jail for\nmasterminding the 1996 Central Bank bombing which left 91 innocent people dead\nand dozens grievously injured, and caused much material damage to the\nnation.  The editorial concludes with the sensible suggestion that The\nconstitutional provision that enables the Executive President to pardon\nconvicts will continue to be abused, and what needs to be done, we repeat, is\nto prune it down. Before the ongoing protests peter out, a campaign should be launched\nto achieve that end.\u201d <\/p>\n\n\n\n

(The\nfollowing is a personal opinion of mine apropos the matter in question. I am\narticulating it as a senior Sri Lankan domiciled abroad who is a layperson\nwhere legal problems are discussed; it is offered to the interested readers for\nwhat it is worth. I would like to state here that, according to my lights as an\nordinary person relying on expert opinion and common sense, the President is\nbeyond reproach in this connection. Granting the pardon is his constitutional\nprerogative, and so it can\u2019t be called in question. And he cannot be accused of\nhaving interfered with the judiciary, because he hasn\u2019t. He has pardoned\nDuminda Silva while he still remains convicted of the crime for which he was\npunished; by asking for and receiving a pardon, the latter has accepted the\nguilty verdict. So, that remains intact. The President has done no wrong, but\nhad his and Duminda\u2019s advisors done right (neither side had done so,\napparently, for some mysterious reason), he could have been saved the necessity\nto grant a pardon in this instance, because the exposure, via the shocking\nRamanayake tapes, of a pre-verdict conspiracy to convict the accused Duminda\nSilva willy nilly provided fair grounds for him to successfully appeal, as he\ncould and should have done, for a seven member bench of supreme court judges to\nconsider his acquittal on the basis that he didn\u2019t get a fair trial (as argued\nby a well known legal luminary named in this article). Let me take this\nopportunity to say a word of consolation to the two families caught up in this\ntragic flow of events. As a compatriot and a fellow human, I deeply empathise\nwith them, understand their suffering and share their pain. I am also aware of\nthe similar suffering of the other three bereaved families. Metta to all!)<\/p>\n\n\n\n

I,\nfor one, endorse the idea of subjecting the institution of presidential pardon\nto some kind of accountability guarantor in order to prevent its possible\nabuse, but with the important reservation that this \u2018pruning\u2019 or\n\u2018straitjacketing\u2019 should not undermine the efficacy of the executive pardon as\n\u2018an act of grace\u2019 which the term denotes (thelawdictionary.org<\/a>).\nAn executive\/royal\/presidential pardon can be used to provide relief for a\nconvicted person who is subsequently deemed to deserve it: for example, a death\nraw prisoner like Duminda Silva himself who came to be seen by the public as an\nunsuspecting victim of a miscarriage of justice in terms of evidence that\nemerged at least  four years after sentencing. The Island editor\u2019s\nforthright observation that Ranjan Ramanayake\u2019s telephone recordings that\ncontain his conversations with judges and senior police officers on criminal\ninvestigations and court cases, during the yahapalana<\/em> days, have not\nonly revealed how politicians exert influence on some members of the judiciary\nand the police but also caused an erosion of public confidence in the judiciary\nand the police\u201d\nhas been directly prompted by the revelation of a conspiracy that had been\nplotted to pervert the course of justice against Duminda Silva. The clear case\nof a breach of natural justice had to be remedied. But the grant of a\npresidential pardon to him in order to provide a remedy seems to have been\neffected in an extremely problematic manner.<\/p>\n\n\n\n

It\nis appropriate, before proceeding, to briefly outline the background to the\nDuminda Silva pardon episode, which is regrettably entangled with the underhand\npolitics of certain adversaries with an anti-Buddhist religious quirk according\nto a prominent monk, who are exploiting it to score political gains. Duminda\nSilva, popular among his supporters as a benefactor of the poor, who hails from\na philanthropist business family, was first elected to the Western Provincial\nCouncil in July 2004 as a member of the United National Party (UNP). It was in\n2005 that the first term of the United People\u2019s Freedom Alliance (UPFA)\u2019s \nMahinda Rajapaksa as president started. Duminda Silva defected to the Sri Lanka\nFreedom Party (SLFP), the principal partner of the UPFA, in 2007. The UNP\ncharged that he did so in the hope of escaping justice in respect of some\ncriminal cases pending against him, in addition to getting the Asia\nBroadcasting Corporation (ABC)\u2019s licence restored. (The ABC is today listed under\nRayynor Silva Pvt Ltd which runs five radio channels and the Hiru TV. Rayynor\nis Duminda\u2019s brother.) Duminda was re-elected as a provincial councillor in\nApril 2009. Then, in the April 2010 parliamentary election, he was elected as a\nColombo district MP under the UPFA.<\/p>\n\n\n\n

It\nappeared that MP Duminda Silva was involved in a fierce personal rivalry with\nMP Bharatha Laksman Premachandra, a fellow member of the SLFP\/UPFA. During the\nrelatively unimportant local government election of 2011, the two of them,\nwhile leading their respective groups of supporters during canvassing, came\nface to face, and apparently, there was a violent clash between them. A\nshooting took place in which both got injured, Premachandra fatally. Silva\nsuffered serious head injuries. Three others from Premachandra\u2019s group also\ndied. This happened on October 8, 2011. The latter was hospitalized in\nSingapore. A magistrate\u2019s court issued an arrest warrant on Silva on November\n15, 2011. <\/p>\n\n\n\n

On\nSeptember 8, 2016, a High Court Trial-at-Bar found Duminda Silva and four\nothers guilty of murdering four people including Premachandra. But the decision\nof the court was not unanimous since Judges Padmini Ranawake and Charith Morais\ndecided on a guilty verdict on five of the suspects, while Judge Shiran\nGunaratne acquitted all suspects of all charges. However, before the\nverdict was announced, there were allegations that Judge Gooneratne was\ninvolved in a conspiracy to acquit the main accused Duminda Silva. The\nWikipedia claims that Sri Lankan media carried details of this alleged\ninvolvement of Judge Gooneratne. The High Court decision was appealed against at the Supreme Court.\nA five-judge bench of the Supreme Court unanimously upheld the the three-judge\nHigh Court verdict, and its ruling was announced on October 11,\n2018.  <\/p>\n\n\n\n

What\nis given above was mostly derived from the Wikipedia. The particular page was\nlast edited on June 28, 2021. However, it should be remembered that the entries\nabout Sri Lanka, as usual, cannot be regarded as free from bias (in favour of\nthe previous markedly pro-west yahapalanaya and against the more independent\ncurrent administration that replaced it). There is no reference to the\nRamanayake tapes (a fact, not a rumour) to countervail the negative comment on\nJudge Shiran Gunaratne. The Wikipedia should not be blamed for this, because\ninterested fair-minded and knowledgeable citizens can appropriately update\nthese pages if they want to set the record straight in the national interest.\nRegrettably, there is no foolproof remedy for the relentless misinformation\nagainst Sri Lanka spread through the Wikipedia and other international media\nsuch as the CNN, Al Jazeera, and the BBC. But this is a different matter, and\nshould be dealt with separately. However, it needs to be explained how the\nDuminda affair has been mishandled by both the parties concerned (i.e., the two\ngroups of advisors separately representing the pardoner and the\npardoned). <\/p>\n\n\n\n

On\nthe day of Poson (June 24, 2021) President Gotabaya Rajapaksa pardoned 93\nprisoners including 16 Tamil prisoners convicted of terrorist crimes. This is\nin accordance with Article 34 (1) of the existing Sri Lankan constitution,\nwhich invests the President with the power of  granting a pardon either\nfree or subject to lawful conditions\u201d to any offender convicted of any offence\nin any court within the Republic. Article 34 (1) runs as follows:<\/p>\n\n\n\n

The\nPresident may in the case of any offender convicted of any offence in any court\nwithin the Republic of Sri Lanka-<\/p>\n\n\n\n

  1. grant a pardon, either free or subject to lawful conditions<\/li>
  2. grant any respite, either indefinite for such period as the\nPresident may think fit, of the execution of any sentence passed on such\noffender<\/li>
  3. substitute a less severe form of punishment for any punishment\nimposed on such offender; or<\/li>
  4. remit the whole or any part of any punishment imposed or of any\npenalty or forfeiture otherwise due to Republic on account of such\noffence: <\/li><\/ol>\n\n\n\n

    Provided that where any\noffender shall have been condemned to suffer death by the sentence of any\ncourt, the President shall cause a report to be made to him by the Judge who\ntried the case and forward such report to the Attorney-General with\ninstructions that after the Attorney-General has advised thereupon, the report\nshall be sent together with the Attorney-General\u2019s advice to the Minister in\ncharge of the subject of Justice, who shall forward the report with his\nrecommendation to the President.\u201d<\/p>\n\n\n\n

    The\ngratuitous dragging in of the Poson as a symbol of Buddhist compassion and\nmental serenity into the graceful act of releasing long suffering prisoners was\nrendered suspicious because its sincerity was somewhat compromised by the\ninclusion of the special case of the controversial Duminda pardon. Undoubtedly,\nit was not meant to reflect positively on the President, whoever (among his\nadvisors) contrived it.  The release of the Tamil prisoners was hailed as\na long overdue positive step towards so-called reconciliation by the agents of\ncertain hegemonic interventionist powers who are pursuing their respective\ngeopolitical agendas at the expense of hapless ordinary Sri Lankans\u2019 human\nrights, democracy, national security, independence, political stability, and\neconomic wellbeing.  They raised a howl of protest when the imprisoned\nwhistle-blowing BBS leader monk (the neglect of whose prior warnings led to the\nEaster bombings that killed over 270 and injured some 500) was given a well\ndeserved pardon by the previous president. Amidst the hardly grateful accolades\nover release of convicted terrorist offenders, not unexpectedly, alarm bells\nstarted ringing among Sri Lanka\u2019s critics when, shortly after that, a special\npresidential pardon was granted to Duminda Silva, ex-SLFP MP who had been convicted\nof murder and sentenced to death by a three judge bench in 2016, later\nconfirmed by a five judge supreme court bench in 2018. <\/p>\n\n\n\n

    The\ninformed legal opinion at present seems to be that Duminda Silva could have\neasily secured quite lawful  exoneration on the basis that he had been\ndenied a fair trial. This would have been better for Duminda Silva because a\nmere presidential pardon does not absolve him of guilt proven in a court of law\n\u2018beyond reasonable doubt\u2019; now the guilty verdict will remain for life. If he\nenters parliament (the path towards which has now been cleared of all\nimpediments by the free pardon), he will be an embarrassment not only to that\naugust body, but to the whole government and the country. I am not a lawyer,\nbut only a layman using common sense; I am repeating here what well known\ndefence lawyer Tirantha Walaliyadda PC recently explained, which I hope I have\nunderstood correctly (Please see below). As far as I know he has a reputation\nas a senior lawyer who has shown active concern over a long period of time for\nupholding and preserving the independence of the judiciary and the integrity of\nthe law enforcement authorities and lawyers. He once wrote: The Judiciary, law\nenforcement, and the Bar comprise the backbone of the democratic system\u201d\n(\u2018Murder of the Judiciary\u2019\/Colombo Telegraph\/September 1, 2012).<\/p>\n\n\n\n

    Incontrovertible\nevidence to prove that Duminda Silva did not get a fair trial came to light\nrelatively recently when  MP Ranjan Ramanayake\u2019s privately and arbitrarily\nrecorded secret telephone exchanges, which had taken place before the\nannouncement of the 2016 three-judge High Court Trial-at-Bar decision, between\nhim, High Court Judge Padmini Ranawake, and former CID director SSP Shani\nAbeysekera, together conspiring to get a guilty verdict, meaning a death\nsentence, passed on Duminda Silva. (By the way, Shani Abeysekera has been\ndescribed as a \u2018Sherlock Holmes\u2019 by the Sri Lanka bashing press!) These tapes\nwere freely broadcast over the local electronic media, and widely bruited about\nby the print- and online-based press. For the  commonsensical Sri Lankan\npublic, any refusal to grant Duminda Silva a presidential pardon would have\nbeen incomprehensible, the possible legal ramifications of such a pardon being\ngenerally beyond their ken. Duminda Silva\u2019s popularity among the common people\nof his constituency was bound to turn his further incarceration into a cause of\npublic outrage. In this connection, the President cannot be accused of having\ninterfered in matters of the judiciary; he has only exercised his presidential\nprerogative to free a convicted prisoner.  He must have thought about the\npublic perception that prevailed that Silva had been subjected to a miscarriage\nof justice as revealed by the Ramanayake tapes. <\/p>\n\n\n\n

    As\nthe law now stands (See Article 34.1 quoted above), the President\u2019s pardoning\nof Duminda Silva cannot be questioned. The executive pardon is a useful\ninstitution when applied in the manner and spirit intended. Shouldn\u2019t the\npresidential pardon prerogative be taken as an effective check on the power of\nthe judiciary (which itself is open to manipulation by corrupt elements among\nthe law enforcement authorities, i.e., investigating police officers and\nprosecuting and defending lawyers); in other words, the constitutional\nprovision for granting  presidential pardons is a legitimate means of\nbringing about a balance between the judiciary and the executive in the\ninterest of the public weal. Like the other branch of government, namely, the\nlegislature,  these two are manned by humans, but humans are not\ninfallible. An act of grace is a useful way to restore fairness where it seems\nto have been denied to an accused person due to human fallibility. To preclude\nthe possibility of misapplying the  presidential pardon prerogative (\nwhich is nothing if not an an act of grace) to help politically important\noffenders to evade justice (the pardon of convicted rapist Gonawala Sunil by\nJRJ, that the Island editorial mentions, is a case in point), the fallible\nhuman being who wields executive power as president on behalf of the people can\nbe made accountable to them through a  simple amendment to the existing\nconstitution according to the aforementioned lawyer Tirantha Walaliyadda\nPC. <\/p>\n\n\n\n

    This\nneeds reference to a \u2018Colombo Today\u2019 video uploaded to the You Tube\n(2021-07-02) of a press conference called by Mrs Sumana Premachandra (widow of\nmurdered Bharatha Lakshman) to protest against the grant of a presidential\npardon to Duminda Silva, who had murdered her husband and three others in cold\nblood\u201d (\u2018amu amuwe\u2019 as she put it). She declared that she will  hold the\nPresident responsible for any harm done or threat posed in the future to the\nlives of herself, her daughter, and any other members of her family as a result\nof this act of his. She also warned about the likely deleterious national and\ninternational consequences of the move. Mrs  Premachandra stated that the\nBar Association of Sri Lanka (BASL) and her daughter former MP Hirunika\nPremachandra had written to the President about the matter and were awaiting a\nreply. She thanked the US ambassador and the UNHRC for expressing concern about\nthe pardoning of Duminda Silva. Mrs Premachandra said that she would, however,\ndesist from taking it to Geneva as the ultimate sufferers of the consequences\nof such a move would be the poor people of Sri Lanka. Then she invited PC\nTirantha Walaliyadda to connect via zoom, who, she said, had done a lot to\nbring Duminda Silva to book when the latter was abroad after the crime. It is\napparent that Walaliyadda addressed them from his office. <\/p>\n\n\n\n

    In\nhis terse remarks, the normally outspoken veteran lawyer stressed three\npoints:  (1) By asking for and receiving the pardon, Duminda Silva\naccepted his guilt over the four murders, thereby condemning himself to a lifelong\nstatus of convicted murderer. He thus unnecessarily forfeited the valuable\nchance he had to successfully appeal for a seven-judge supreme court bench to\nconsider his acquittal on the ground of having been denied a fair trial, which\nwould have been good him personally and saved the President the embarrassment\nof a presidential pardon that potentially set the outside world laughing\n(though he didn\u2019t violate the constitution by granting the pardon). (2) The\nPresident did not interfere with the judiciary as charged in certain quarters.\nHe just used his lawful presidential power to pardon him, while leaving the\nguilty verdict that had been passed on the pardoned intact. However, Duminda\nSilva, though permanently stigmatized for a heinous crime, can become an MP and\nparticipate in law making, or even get a ministerial post and perform executive\nduties! Will the people be ready to accept laws passed by such a parliament?\nWhat will happen if this sort of thing goes on without being checked? (3) The\nmatter is grave, but there is a simple solution. Just introduce a minor\namendment to the constitution which would require the president to present to\nParliament the day following the grant of a pardon a written explanation\nsetting out the reason\/s why it was granted. The document must go to the\nHansard. Its effect will be felt at the next election. No parliamentary debate\nis possible or required, because a presidential pardon cannot be set aside by\nparliament. This will stop any future abuse of the presidential pardon institution. <\/p>\n\n\n\n

    PC\nWalaliyadda expressed dismay that the President who is not a lawyer has not\nbeen properly guided by his advisors. My concern, like that of any fair-minded\nSri Lankan, is about how the President could stick to a course of action with\nsingle-minded doggedness, while trustfully relying on the recommendations of\nsuch advisors, particularly at this critical juncture. <\/p>\n","protected":false},"excerpt":{"rendered":"

    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\u201d, 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[91],"tags":[],"class_list":["post-116001","post","type-post","status-publish","format-standard","hentry","category-rohana-r-wasala"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/116001","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=116001"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/116001\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=116001"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=116001"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=116001"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}