A check on presidential pardons

Last week in a historic decision, the Supreme Court ruled that the Presidential pardon granted to former Member of Parliament Duminda Silva by former President Gotabaya Rajapaksa was illegal and invalid. This signifies the first instance in which a court has nullified a Presidential pardon in Sri Lanka. The decision was delivered by a three-judge bench presided over by Justice Preethi Padman Surasena and consisted of Justices Gamini Amarasekara and Arjuna Obeysekara.

Duminda Silva was convicted in September 2016 by the High Court, along with four others, for the 2011 murder of politician Bharatha Lakshman Premachandra. The High Court imposed the death sentence on all five individuals, a decision later affirmed by a five-judge bench of the Supreme Court.

Silva, a one time ‘Monitoring Member of Parliament’ of the Ministry of Defence, a bizarre position created during the Mahinda Rajapaksa era, was granted a Presidential pardon in 2021 by former Secretary to Defence and then President Gotabaya Rajapaksa. This pardon followed another controversial and highly politically motivated pardon to a convicted army sergeant named Sunil Rathnayake. He had been found guilty of killing eight Tamil civilians in a cold-blooded massacre, a verdict upheld by the Supreme Court.   

Last week the Supreme Court found that former President Rajapaksa had failed to adhere to the proper legal procedures in granting the special Presidential pardon thus making it illegal and invalid. The Supreme Court accordingly instructed the Commissioner General of Prisons to undertake the necessary measures to enforce the sentence imposed on Duminda Silva by the court. 

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. According to the Constitution, before pardoning a convict, it is essential for the President to call for reports from the Attorney General, the judge of the court that imposed the sentence and the Minister of Justice.

After last week’s Supreme Court decision also begs another question as to who the ministers and officials were who advised and facilitated this now illegal decision. Who was the minister of justice at that time? Shouldn’t he too be answerable to this perversion of justice?  

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. The recent high level presidential pardons have all demonstrated that these are done for political and financial reasons. Former President Maithripala Sirisena famously pardoned rabble rousing racist monk Galaboda Atte Gnanasara after he was convicted in a case of contempt of court and he pardoned the convicted murderer Jude Shramantha Jayamaha, who was sentenced to death in connection with the murder of Yvonne Jonsson in 2005. In the wake of the recent Supreme Court decision all these previous dubious pardons should also be investigated to see if due process was followed.

A presidential pardon should be a tool that is a check on any miscarriages of justice or excesses. Commuting sentences of death, pardoning those convicted for petty crimes or those who have served long sentences should be the priority of such authority. Using this executive power for political gain should not be allowed to continue.