By Ahalya Lelwala
On 26 March 2020, President Gotabaya Rajapaksa granted a presidential pardon to former Lance Corporal Sunil Ratnayake, a prisoner on death row for the murder of eight persons in Mirusuvil in 2000. Ratnayake was sentenced to death by a Trial-at-Bar bench of the Colombo High Court in June 2015. In the case of Rathnayake Mudiyanselage Sunil Ratnayake Vs Hon. Attorney General, SC TAB 01/2016, decided in April 2019, a five-judge bench of the Supreme Court affirmed this sentence.
Black’s Law Dictionary defines a ‘pardon’ as ‘an act of grace’, granted by the executive authority to an individual convicted of an offence, which exempts him from the legal punishment imposed upon him, following his conviction.
The power to pardon is vested in the executive, arguably as a ‘check’ on the powers of the judiciary, as it provides a means of rectifying any miscarriage of justice. However, leaving this executive power ‘unchecked’ could result in abuse. This article explores how Sri Lanka has exemplified the abuse of presidential pardons, as present and former presidents have granted controversial pardons using this executive power.
Controversial use of presidential pardons: a brief recap
In the past, several Sri Lankan presidents have used their power to grant controversial pardons in some high-profile cases. For instance, former President Maithripala Sirisena granted two such presidential pardons during his term in office. In May 2019, he pardoned secretary general of the militant Sinhala-Buddhist group Bodu Bala Sena, Venerable Galagoda Aththe Gnanasara Thera. The Thera was serving a six-year prison sentence for contempt of court imposed by the Court of Appeal in August 2018 (Galagodaaththe Gnanasara Vs Hon. Attorney General, CA (CC) Application No. 04/2016). His subsequent appeals against the prison sentence filed in the Court of Appeal and Supreme Court were dismissed. The second controversial pardon by President Sirisena was granted on 9 November 2019 to Don Shramantha Jude Anthony Jayamaha, who was sentenced to death in the Royal Park Murder case by the Court of Appeal in 2012. The Supreme Court in 2014 affirmed this sentence. The president’s pardon was reportedly on the basis of requests made by the Buddhist clergy, and other parties, including the considering of reports prepared by the Prisons Department and several other state institutions.
The pardoning of Mary Juliet Monica Fernando, the wife of a former Minister of Parliament is another example of a controversial pardon. She was sentenced to death for a double murder in 2005. Subsequently, on International Women’s Day in March 2009, former President Mahinda Rajapaksa granted her a presidential pardon. In addition to the above high-profile pardons, Sri Lankan presidents have routinely granted mass scale pardons to persons convicted of minor offences. These pardons are usually granted on special days, such as Independence day, Vesak day and Christmas.
Presidential pardons and the Sri Lankan Constitution
Article 34(1) of the Sri Lankan Constitution empowers the president to pardon an offender convicted of any offence in any Sri Lankan court. When an offender has been sentenced to death, the Constitutional process is as follows: (1) the president shall require the judge who tried the case to make a report; (2) it shall be forwarded to the Attorney-General for his advice; (3) thereafter, the report shall be sent to the Minister of Justice to forward to the president with his recommendation.
Rethinking presidential pardons in Sri Lanka
The cases discussed above indicate that in Sri Lanka, the granting of presidential pardons have been abused, as they seem to have undermined the role of the judiciary, rather than rectify miscarriages of justice. This is evidenced by the fact that several sentences in the above cases were affirmed by the Supreme Court, which is the ‘highest and final superior court of record in the Republic’, as highlighted in Article 118(c) of the Constitution. Therefore, presidential pardons should be subject to checks and balances. Such checks and balances are vital to uphold the separation of powers between the three branches of government – a doctrine incorporated in the Sri Lankan Constitution.
Some countries have empowered their judiciaries to review executive pardons. For instance, in the United Kingdom, the courts have the jurisdiction to review the exercise of the Royal Prerogative of Mercy by the monarch (on advice of the justice secretary) ‘in accord with accepted public law principles’. Thus, in the United Kingdom, the power to grant pardons does not go un-checked. Meanwhile, in India, through the landmark case of Epuru Sudhakar & Anor v. Government of Andhra Pradesh & Ors, the Indian Supreme Court held that it has jurisdiction to judicially review the pardoning power of the president.
The recourse available in Sri Lanka
In Sri Lanka, except decisions to declare war, the official decisions of a president may be challenged by invoking the fundamental rights jurisdiction of the Supreme Court as per Article 35(1) of the Constitution. This mechanism was introduced through the Nineteenth Amendment to the Constitution. As such, a solution to ‘check’ controversial presidential pardons is available in Sri Lanka, thus upholding the separation of powers. This remedy has been used to challenge the presidential pardons granted to Gnanasara Thera, Jayamaha, and Ratnayake.
The current practice of granting presidential pardons in Sri Lanka is deeply problematic. However, the course of action provided through the Nineteenth Amendment for the Supreme Court to review pardons is a positive feature in Sri Lanka’s constitutional framework. It can provide an avenue to maintain checks and balances on executive power, and prevent a culture of injustice, which undermines the rule of law.
The writer is a Research Assistant attached to the Legal Research team at Verité Research, an interdisciplinary think tank that provides strategic analysis and advice for governments and the private sector in Asia. The writer would like to thank Malsirini de Silva and Gehan Gunatilleke for their valuable and constructive guidance during the research and writing of this article.
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 William F. Duker, ‘The President’s Power to Pardon: A Constitutional History’ (1977) 18 William and Mary Law Review 475, at https://scholarship.law.wm.edu/wmlr/vol18/iss3/3/ [last accessed 6 April 2020] p. 536.