{"id":116173,"date":"2021-07-15T17:36:21","date_gmt":"2021-07-16T00:36:21","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=116173"},"modified":"2021-07-15T17:36:21","modified_gmt":"2021-07-16T00:36:21","slug":"presidential-pardons-in-sri-lanka-some-are-more-equal-than-others","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2021\/07\/15\/presidential-pardons-in-sri-lanka-some-are-more-equal-than-others\/","title":{"rendered":"Presidential pardons in Sri Lanka; Some are more equal than others"},"content":{"rendered":"

By Raj Gonsalkorale<\/em><\/span><\/h2>\n\n\n

All\nanimals are equal but some are more equal than others- George Orwell<\/em><\/em><\/h4>\n\n\n\n

Presidential pardons\nin Sri Lanka seem to have conferred a constitutional privilege for some\ncitizens to be more equal than others, even for those convicted of murder by\nthe highest court in the country, the Supreme Court. Another feature associated\nwith these pardons is that politicians from the major parties, do not make much\nnoise over these compared to other comparatively less important issues for\nwhich they protest, march the streets and go berserk on social media.<\/p>\n\n\n\n

The constitution of\nthe country permits the President to grant pardons for convicted criminals. The\nrelevant clause is noted below<\/p>\n\n\n\n

34.\n(1) The President may in the case of any offender convicted of any offence in\nany court within the Republic of Sri Lanka \u2013 (a) grant a pardon, either free or\nsubject to lawful conditions; (b) grant any respite, either indefinite for such\nperiod as the President may think fit, of the execution of any sentence passed\non such offender; (c) substitute a less severe form of punishment for any\npunishment imposed on such offender; or (d) remit the whole or any part of any\npunishment imposed or of any penalty or forfeiture otherwise due to the\nRepublic on account of such offence: <\/em><\/p>\n\n\n\n

Provided\nthat where any offender shall have been condemned to suffer death by the\nsentence of any court, the President shall cause a report to be made to him by\nthe Judge who tried the case and shall forward such report to the\nAttorney-General with instructions that after the Attorney-General has advised\nthereon, the report shall be sent together with the Attorney-General\u2019s advice\nto the Minister in charge of the subject of Justice, who shall forward the\nreport with his recommendation to the President.<\/em><\/p>\n\n\n\n

While the President of\nthe country has the power to pardon, in the case of any person serving a death\nsentence, the above caveat requires the President to  cause a report to be made to him by the\nJudge who tried the case and shall forward such report to the Attorney-General\nwith instructions that after the Attorney-General has advised thereon, the\nreport shall be sent together with the Attorney-General\u2019s advice to the\nMinister in charge of the subject of Justice, who shall forward the report with\nhis recommendation to the President.<\/strong><\/p>\n\n\n\n

Leaving aside any\nhumanitarian, moral or political arguments, the issue in all instances where a\nPresident has pardoned a criminal serving a death sentence, is whether the\nabove process enshrined in the constitution has been followed or not.  This is the acid test in regard to the\nconstitutionality of a President\u2019s decision, and whether or not the country is\none of laws.<\/p>\n\n\n\n

The clause however\ndoes not extend to criminals serving other sentences, and in this regard it\nappears that the Executive President has an unfettered power to pardon\ncriminals who have committed crimes for which they have not been served a death\nsentence. It is time perhaps that society questioned this power granted to one\nindividual and commenced a discussion on a procedure that should be followed\nprior to granting a pardon to any convict serving a sentence imposed by the\nCourts.<\/p>\n\n\n\n

Presidential pardons are\nnothing new, in Sri Lanka and in several other countries, and they have been\ngranted without controversy and with much controversy. The real issue is\nwhether there is a process in place for one person to effectively over rule a\ndecision made even by the highest court in a country. <\/p>\n\n\n\n

Some\ncountries have empowered their judiciaries to review executive pardons. For\ninstance, in the United Kingdom, the courts have the jurisdiction to review the\nexercise of the Royal Prerogative of Mercy by the monarch (on advice of the\njustice secretary) \u2018in accord with accepted public law principles\u2019. Thus, in\nthe United Kingdom, the power to grant pardons does not go un-checked.\nMeanwhile, in India, through the landmark case of Epuru Sudhakar & Anor v. Government\nof Andhra Pradesh & Ors, <\/em>the Indian Supreme Court held\nthat it has jurisdiction to judicially review the pardoning power of the\npresident.<\/p>\n\n\n\n

The\ncontroversy with Presidential pardons has arisen again following the pardoning\nof former MP Duminda Silva who had been convicted for murder and sentenced to\ndeath by a High Court and the sentence unanimously ratified by the Supreme\nCourt, by President Gotabaya Rajapaksa.<\/p>\n\n\n\n

Ahalya Lelwala, a Research Assistant\nattached to the Legal Research team at Verit\u00e9 Research, an interdisciplinary\nthink tank that provides strategic analysis and advice for governments and the\nprivate sector in Asia, writing in Verite Research on the 21st<\/sup> of\nJuly 2020 (<\/em>https:\/\/www.veriteresearch.org\/2020\/07\/21\/presidential-pardons-in-sri-lanka-an-unchecked-executive-power\/<\/a>), says, quote <\/em>On\n26 March 2020, President Gotabaya Rajapaksa granted a presidential pardon to\nformer Lance Corporal Sunil Ratnayake, a prisoner on death row for the murder\nof eight persons in Mirusuvil in 2000. Ratnayake was sentenced to death by a\nTrial-at-Bar bench of the Colombo High Court in June 2015. In the case of Rathnayake Mudiyanselage Sunil\nRatnayake Vs Hon. Attorney General, SC TAB 01\/2016, decided in\nApril 2019, a five-judge bench of the Supreme Court affirmed this sentence. <\/em><\/em><\/p>\n\n\n\n

Former President\nMaithripala Sirisena granted two such presidential pardons during his term in\noffice. In May 2019, he pardoned secretary general of the militant\nSinhala-Buddhist group Bodu Bala Sena, Venerable Galagoda Aththe Gnanasara\nThera. <\/em><\/em><\/p>\n\n\n\n

The Thera was serving\na six-year prison sentence for contempt of court imposed by the Court of Appeal\nin August 2018 (Galagodaaththe Gnanasara Vs Hon. Attorney General, CA (CC)\nApplication No. 04\/2016). His subsequent appeals against the prison sentence\nfiled in the Court of Appeal and Supreme Court were dismissed<\/em>. <\/p>\n\n\n\n

The second pardon by\nPresident Sirisena was granted on 9 November 2019 to Don Shramantha Jude\nAnthony Jayamaha, who was sentenced to death in the Royal Park Murder case by\nthe Court of Appeal in 2012. The Supreme Court in 2014 affirmed this sentence.\nThe president\u2019s pardon was reportedly on the basis of requests made by the\nBuddhist clergy, and other parties, including the considering of reports\nprepared by the Prisons Department and several other state institutions<\/em>. <\/p>\n\n\n\n

Mary\nJuliet Monica Fernando, the wife of a former Minister of Parliament had been\nsentenced to death for a double murder in 2005. Subsequently, on International\nWomen\u2019s Day in March 2009, former President Mahinda Rajapaksa granted her a\npresidential pardon. <\/em><\/em><\/p>\n\n\n\n

In\naddition to the above high-profile pardons, Sri Lankan presidents have\nroutinely granted mass scale pardons to persons convicted of minor offences.\nThese pardons are usually granted on special days, such as Independence day,\nVesak day and Christmas<\/em>\u201d unquote. <\/p>\n\n\n\n

It is not clear\nwhether the procedure followed by President Gotabaya Rajapaksa was consistent\nwith the constitutional requirement.The same goes for President Sirisena\nin regard to the pardon granted to Anthony Jayamaha and whether it was in line\nwith what is specified in the constitution. Neither is it clear whether\nPresident Mahinda Rajapaksa adhered to the constitutional provision in\npardoning Monica Fernando.<\/em><\/p>\n\n\n\n

Previous\nPresidents have granted pardons to convicted criminals too. Lakdev Liyanagama writing in the Daily News\non 30th May 2019 cites what he states as perhaps one of the first Presidential pardons\nto raise concern, that of Sunil Perera, better known as \u2018Gonawela Sunil\u2019 who\nwas serving a sentence for rape. Perera, who had close links with the United\nNational Party (UNP) was granted a pardon by then President J. R. Jayewardene. Liyanagama\nalso mentions President Ranasinghe Premadasa pardoning Manohari Daniels, who\nwas convicted of aiding and abetting the Liberation Tigers of Tamil Eelam\n(LTTE) to carry out a bomb attack opposite Zahira College, Maradana in 1987\nthat killed forty persons. Daniels was pardoned at a time when the Premadasa\ngovernment was having \u2018peace talks\u2019 with the LTTE, as a gesture of goodwill in\nwhat was a bid to ensure the talks succeeded.<\/p>\n\n\n\n

Several newspaper reports mentions that in April 2014, ten former PSD\nofficers were released from prison as they were granted Presidential Pardons by\nPresident Mahinda Rajapaksa. <\/p>\n\n\n\n

The Panadura High Court judge, Kusala Sarojani Weerawardana, had found\nthese ten Presidential Security Division (PSD) officers who were accused of\nassaulting two famous songsters Rookantha Gunathilike and Chandraleka Perera to\nbe guilty of the charges and sentenced them to four and a half years of\nrigorous imprisonment. The PSD officers had entered the living premises of the\ntwo famous singers, shaved their heads and assaulted them in the year 2000. The\nPSD officers allegedly did this due to the two singers participating publically\nat an opposition UNP political rally. The attack on the two singers was\npolitical revenge for them participating in the opposition rally. At the time\nof the attack Chandrika <\/a>Kumaratunga was the executive\npresident. The Presidential Security Division had acquired a not so dignified\nreputation during this time as they were allegedly used for political attacks\non opponents of the government.<\/p>\n\n\n\n

There cannot be any doubt\nthat the Presidential pardons mentioned were nothing but politically motivated\nactions on the part of the Executive and the political party he or she\nrepresents. The privilege of being pardoned would not be extended to others in\nthe death row who do not belong to the elite club of persons who have in common\nthe motto, it is who you know and not what you know that matters\u201d. <\/p>\n\n\n\n

Death sentences are looked\nat as archaic and medieval by many as the belief that an eye for eye practice\nis not an act of meting out justice in this day and age. Neither is there any\nconclusive evidence that that passing a death sentence on anyone has deterred\nother persons from committing offences punishable by such a sentence. In a\ndetailed study carried out by the Australian Broadcasting Corporation in 2015\ntitled Fact check: No proof the death penalty prevents crime\u201d\n(https:\/\/www.abc.net.au\/news\/2015-02-26\/fact-check3a-does-the-death-penalty<\/a>), it states\nclearly that there is no conclusive evidence that the death sentence has acted\nas a homicide deterrent. <\/p>\n\n\n\n

Amnesty international reports that there are around 20,000 persons who\nare in the death row throughout the world. <\/p>\n\n\n\n

In an article by Max Roser and Hannah\nRitchie<\/a> in\nthe website Ourworld in Data in 2019, states that more than 400,000 people die from homicide each year \u2013 in\nsome countries it\u2019s one of the leading causes<\/a>.<\/p>\n\n\n\n

A citation taken from an\nOxford School Education Blog is worth repeating here to illustrate a what some\nmay interpret as a simile in the political administration of the country. Quote,\nin George Orwell\u2019s allegorical novel Animal\nFarm, animals conspire to take control of their farm from humans,\nestablishing \u2018Animalist\u2019 commandments to prevent the reproduction of the\noppressive behaviour of humans. Unfortunately, as time goes on that is exactly\nwhat happens and the pig Napoleon ends up changing the final rule of \u2018All\nanimals are equal\u2019 so that it reads that \u2018All animals are equal but some\nanimals are more equal than others\u2019. This is a parody of Stalinist Russia which\nOrwell was criticising,<\/em> unquote. <\/p>\n\n\n\n

In Sri Lanka, not of course\ndissimilar in other democratic countries, the parody of Stalinist Russia\nperhaps is alive and well as people vote in one party to replace another in\norder to, as the Blog says create their vision of a Utopian society, only for\nit to become another group\u2019s dystopia\u201d. The blog goes on to say way a\nsociety is structured may change but human nature does not necessarily follow\nsuit. Thomas Hobbes viewed human life as \u2018nasty, brutish and short\u2019 and\ntherefore we should perhaps not be surprised if time and time again we\nreplicate previous inequalities and tyrannies with only a change of \u2018players\u2019<\/em>.\n<\/p>\n\n\n\n

The Animal Farm illustrates\nthis. Some might say the general public will continue to have the same wine in\ndifferent bottles irrespective of a change of guard at an election.<\/p>\n\n\n\n

Court decisions are not\nalways right, and there have been many miscarriages of justice throughout the\nworld. While a person with wealth, and right connections, will always have a\nchance of some redress, like a pardon, and perhaps even a re trial on discovery\nof new evidence, most convicted persons have no recourse to such a process as\ntheir case will not generate any interest, and they will languish in jail for\nthe duration of their sentences or be executed in countries where death sentences\nare carried out. <\/p>\n\n\n\n

No doubt there are many\ninstances where a person accused, tried and convicted of murder maintain their\ninnocence, and they are justly or unjustly convicted and sentenced to death or\na life imprisonment. Justice will be meted out in a law enforcement and\njudicial system that functions efficiently, effectively and impartially, free\nof political interference and free of inducements\u201d. There is a question mark\nwhether any country could boast of having a perfect system where all of above\nare met in all instances by everyone engaged in law enforcement and justice.\nConsequently, there is the possibility of some persons being executed or\ncommitted to life in prison for a crime they never committed. <\/p>\n\n\n\n

A judicial review process\neven beyond the highest court in the land, may be an avenue that could be\nconsidered although the parameters of such a process would be extremely hard to\nimplement. A Presidential pardon system maybe one such avenue, but it has to\ninclude a formal review process and some parameters as to who should be subject\nto such a review process.<\/p>\n\n\n\n

Clearly, such a process\ncannot include political favourites at the expense of others who do not\nsubscribe to the motto It is who you know and not what you know that matters\u201d.\nOf course in an imperfect society riddled with corruption and other vices, what\none knows might lead them to persons of influence and power and a consequential\nsymbiotic existence.<\/p>\n","protected":false},"excerpt":{"rendered":"

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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[172],"tags":[],"class_list":["post-116173","post","type-post","status-publish","format-standard","hentry","category-raj-gonsalkorale"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/116173","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=116173"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/116173\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=116173"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=116173"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=116173"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}