Sunday Times 2
Presidential power to grant pardon must be reviewed
View(s):
While the entire country and the entire world is focusing its attention on battling the COVID-19 Pandemic, President Gotabaya Rajapaksa has thought it fit to pardon a former Army Sergeant who had been convicted of murder and sentenced to death in relation to the death of six civilians, including two teenagers and a five-year-old child, during the height of the civil war in what has often been described by many as the Mirusuvil Massacre.
Predictably the grant of the pardon gave rise to protests and condemnations from a wide range of civil society organisations, human rights bodies and individuals who unequivocally criticised the decision of the President.
Among those who raised their voices were the Sri Lanka National Human Rights Commission, the United Nations Human Rights Commissioner, the International Commission of Jurists, Amnesty International, the influential The Hindu newspaper of India, the Tamil National Alliance (TNA), twenty two civil rights organisations and several individuals including former diplomat Dayan Jayatilleka.
One organisation that has yet to make its views on the matter known, is the Bar Association of Sri Lanka (BASL). The conviction in the Mirusuvil Massacre case came after a lengthy legal proceeding in which a trial at bar of three High Court Judges returned a verdict of guilty. On an appeal from the decision a five judge bench of the Supreme Court had confirmed the conviction in May 2019.
The BASL as an independent body of legal professionals concerned with the administration of justice with its commitment to protect the rule of law has an important role to play in this matter and its views will therefore will be anxiously awaited in the days to come.
In fact, when President Maithripala Sirisena granted a pardon to the individual convicted in the Royal Park murder case, the BASL issued a statement pointing out that, while they appreciated the President’s powers to grant pardon to a convicted prisoner, such powers should not be exercised arbitrarily or in a selective manner.
As the BASL at that time pointed out, as per article 34 of the constitution of Sri Lanka, the President must call for a report from the judge who tried the case where the offender had been sentenced to death. The BASL pointed out that such a report was required to be forwarded to the Attorney General for advice, and the provision also required the Attorney General’s opinion to be referred to the Minister of Justice. who was required to submit a recommendation to the President.
Thus it is clear, there is a clearly defined transparent process constitutionally laid down before the President can arrive at such a decision.
Meanwhile Transparency International Sri Lanka has called upon the President’s Secretary to immediately publish the trial judge’s reports, the Attorney General’s advice and the Minister of Justice’s recommendations in both cases, in line with the provisions of the Constitution and the Right to Information Act.
TISL has pointed out that it is concerned the failure to do so could result in irreparable damage to the separation of powers between the executive and judiciary, especially given that the conviction and sentencing in this case was upheld by a five member bench of the Supreme Court.
The Sri Lanka Human Rights Commission Chairperson Dr. Deepika Udugama has expressed in a letter to President Gotabaya Rajapaksa the Commission’s deep concern on this matter, due to the serious nature of the charges brought up by the Attorney General which included the killing of three children, and the strength of the Supreme Court judgment which upheld the conviction.
The HRCSL also said granting of a presidential pardon to a person convicted of such a heinous offence and whose conviction was upheld unanimously by the Supreme Court sends a negative message which reinforces allegations of impunity and lack of justice for victims of violations in Sri Lanka.
Dr. Udagama also said the Supreme Court judgment in the Mirusuvil case was considered a landmark judgment, similar to that given in the Embilipitiya school boy murder case several years ago, both which contributed in a significant manner to address the issue of impunity in the country. The HRCSL further pointed out, there had been few such convictions and a presidential pardon to the convict of such a judgment sets a very negative precedent.
Dr. Dayan Jayatilleka has raised the pertinent question as to what could possibly exonerate or extenuate the quite deliberate cutting of a five-year-old child’s throat.
“If there is to remain even the most fundamental foundation of ethics and morality, the most basic sense of right and wrong, good and evil, in state, society and leadership, should the Supreme Court’s unanimous verdict have been overthrown?” asked Dr. Jayatilleka.
In the context of the Presidential pardon given in the Mirusuvil massacre case, it is opportune to review the Constitutional powers given to the President to pardon convicts. Article 34 of the 1978 Constitution which confers such powers on the President is substantially the same as the corresponding power contained in Article 22 of the 1972 Constitution.
However, the nature of the Presidency is different in the two Constitutions. The Presidency in the 1972 Constitution is an apolitical office and largely ceremonial in nature. The Executive Presidency of the 1978 Constitution is a highly politicised office and subject to the considerations and pressures of the political party the incumbent leads, as well as the political inclination of the individual holding office. It is therefore not conducive to the dispassionate reasoning that must precede the exercise of such a far reaching power.
This provision must therefore immediately engage the attention of those who are concerned with the rule of law in the country.
(javidyusuf@gmail.com)