Punishable pardon

Since coming to power in 2019, the Gotabaya Rajapaksa Presidency has been far from smooth, yet with a pandemic and all the ramifications from that, the President has been in many circles given the benefit of the doubt.

But in recent times, whatever goodwill towards the President there might have been is seemingly being gradually chipped away, and his latest move, the pardoning of convicted murderer Duminda Silva, is arguably his most egregious move yet.

Presidential pardons are part of the powers given to the Executive President, which also comes with wide discretionary powers on how they can be used. But many are concerned that using Presidential pardons can undermine the rule of law and the independence of the Judiciary.

Former President Maithripala Sirisena used these powers when he released Bodu Bala Sena (BBS) General Secretary Galagoda Aththe Gnanasara Thero and a second time to release Royal Park murder convict Shramantha Jude Anthony Jayamaha.

Both decisions were met with public and civil uproar. The legal process exists to deal with crimes and to ensure that the guilty parties are punished. There can be instances when justice is miscarried, and it may then be necessary to intervene to correct the situation but that also needs to be done from within the legal framework.

The verdict in the Royal Park murder case was delivered after numerous rounds of hearings, and later upheld despite an appeal process. There was no indication of a miscarriage of justice that warranted any external intervention from Sirisena. When the BBS General Secretary was released, there was valid concerns about the former President undermining the rule of law and overriding a court decision through a Presidential pardon.

The same argument now stands true, if not more so, in the case of Duminda Silva. Particularly because this was something foreshadowed outside the courthouse when the high court upheld Silva’s death penalty – Silva’s supporters at the time were heard shouting that Silva would be pardoned in the eventuality Gotabaya Rajapaksa came into power.

In this context, it is crucial that President Rajapaksa provide as much transparency as possible in justifying this decision to pardon a murderer. Three High Court judges and five Supreme Court judges issued verdicts on Silva. As such, the Bar Association of Sri Lanka’s demand that the President convey both to the bar and the public the reasons as to why and how this decision was arrived is crucial in maintaining the rule of law in the country.

The President must, among other points, explain what about Silva’s case stands out from those of others on death row; clarify if a report from the trial judges was commissioned prior to the pardon being granted; and what circumstances were taken into consideration for granting this pardon.

The judicial system must operate, and must be seen to be operating, in an independent and efficient manner. The rich and the powerful cannot be allowed to sidestep this process, not only because it is morally and ethically wrong, but also because confidence in the legal system will be destroyed.

Fear of authoritarianism was shrugged off by many when the President came to power, but if he cannot fulfil the requirements stated above in a satisfactory manner, then we might as well say farewell to any illusions of democracy we might have held – because apparently even murder is not impossible to overcome, provided you know the right people.