President Gotabaya Rajapaksa has attracted a lot of flak for his arrogance and lack of judgment which has led Sri Lanka to the plight that it currently finds itself in. After two and a half years, he has acknowledged at least two major blunders: his decisions to ban chemical fertiliser and not seek financial assistance from the International Monetary Fund sooner.
Last week saw yet another blunder by Rajapaksa being revealed, which could have more far-reaching consequences, at least for him: the Supreme Court suspended a presidential pardon granted by Rajapaksa to former parliamentarian R. Duminda Silva who was convicted of the murder of Sri Lanka Freedom Party activist Bharatha Lakshman Premachandra on the day of the local government elections in October 2011.
Silva was initially convicted following a Trial-at-Bar by a two-to-one verdict. He appealed his conviction but a five-judge bench of the Supreme Court reached a unanimous verdict in 2018 affirming the conviction and death sentence imposed on him.
Not only was Silva granted a pardon by Gotabaya Rajapaksa in June last year, he was also appointed as Chairman of the National Housing Development Authority. Their friendship goes back to the time of Premachandra’s murder, when Silva was the ‘Monitoring MP’ for the Defence Ministry and Rajapaksa was Defence Secretary.
Thereafter, Premachandra’s wife Sumana Premachandra and daughter, former Samagi Jana Balavegaya parliamentarian Hirunika Premachandra petitioned the Supreme Court challenging the pardon. In a historic verdict, the pardon was suspended last week.
The issue at stake here is not the pardon itself because the Constitution, under Article 34(1), empowers the President to grant such pardons. Where Rajapaksa appears to have erred is in not following the procedure set out in this article for granting this particular pardon.
Article 34 outlines a four-step process which the President is required to follow in the granting of presidential pardons to those who have been given a death sentence. He is required to, in the first instance, call for a report to be made to him by the Judge who tried the case. Then, he is required to forward the report to the Attorney General for his advice. Thereafter, the judge’s report along with Attorney General’s advice is forwarded to the Minister of Justice. Finally, the Minister of Justice is required to make a recommendation to the President regarding the matter.
Such a procedure is not stipulated for presidential pardons granted for lesser offences but for only those who have been imposed a death sentence. Obviously, the intention of those drafting the Constitution was to ensure that a stringent procedure was followed for such offenders, so that Presidents are not allowed to change the course of justice at their whim and fancy. Whether President Rajapaksa followed this due process in respect of Silva’s death sentence will now be the subject of rigorous scrutiny by the Supreme Court when it re-examines the matter in September this year.
This could open up a can of worms for Rajapaksa. The Supreme Court, in ordering a suspension of the pardon and also ordering that Silva should return to prison custody, has already indicated that the issue merits further inquiry.
Another question that must be asked is whether the then Minister of Justice, Ali Sabry, was aware of the President’s decision to pardon Silva? If proper procedures were indeed followed, he should be because, it was he who would have recommended that pardon. Being a lawyer himself- and being the President’s personal lawyer before Rajapaksa became President- the only reason Sabry would not have ensured proper processes were followed was if he was unaware of the pardon before it was granted!
While not prejudging the outcome of this inquiry in any way, if it is determined that President Rajapaksa has not followed due procedures in granting the pardon, not only would it mean that Silva would have to return to being a prisoner on death row, it would also mean that Rajapaksa has violated provisions of the Constitution.
That is a dubious honour held until now by only one previous President: Maithripala Sirisena. Sirisena was chastised by the Supreme Court when it declared that his decision to dissolve Parliament in November 2018 triggering a constitutional crisis during the infamous ‘51-day government’, was ‘unconstitutional’.
There were grounds to impeach Sirisena, based on the Supreme Court’s verdict but he did survive the rest of his term without an impeachment, although he did also earn the wrath of the Presidential Commission he himself appointed to probe the Easter terror attacks. The Commission recommended that criminal proceedings be instituted against him.
Ironically, a presidential pardon granted by Sirisena to Jude Anthony Jayamaha, who was convicted of murdering Yvonne Jonsson at the Royal Park apartments in 2005 is also now the subject of a fundamental rights petition before the Supreme Court. This will also be heard in September.
Whatever the outcome of the Supreme Court’s determination regarding the pardon granted to Silva, the events last week reflect poorly on Gotabaya Rajapaksa. He stands accused of poor judgment when he grants a pardon to his one-time ‘monitoring MP’ convicted for murder and also pardons Sunil Ratnayake, a soldier who killed eight unarmed Tamil civilians, three of whom were children, the youngest being just five years old.
Meanwhile on Monday, the Minister of Urban Development and Housing in Rajapaksa’s Cabinet, Prasanna Ranatunga was handed a sentence of two years’ rigorous imprisonment, suspended for five years for threatening a businessman and demanding a bribe to evict unauthorised occupants of a land.
Ranatunga has the right to appeal the verdict and can therefore remain a Member of Parliament. As his sentence is only a suspended sentence, he could also attend to his duties not only as a minister but also as the Chief Government Whip. Yet, how moral and ethical is it to entrust a vital portfolio as well as the key position of Chief Government Whip in Parliament to a convict?
Rajapaksa does not have any
We now know that Gotabaya Rajapaksa does not have any qualms about such issues. For him, not only does justice not need to be done, it needn’t appear to be done as well.
