BASL calls on the Supreme Court to formulate guidelines to be followed in the exercise of the power of pardon vested with the executive.

The Bar Association of Sri Lanka (BASL) has called on the Supreme Court to formulate a set of guidelines to be followed in the exercise of the power of pardon vested with the executive.

President’s Counsel Saliya Pieris, appearing for BASL, made these remarks when the Fundamental Rights petition was filed challenging former President Maithripala Sirisena’s decision to grant Presidential Pardon to Royal Park murder convict Don. Shamantha Jude Anthony Jayamaha was taken up before the Supreme Court for arguments.

Pieris submitted to the court that the pardon given to the accused was arbitrary and capricious and that the President should have consulted the victims, the parents of the deceased, in terms of the Witness and Victims Protection Act. He further outlined the instances previously where presidents had arbitrarily pardoned convicts.

Further arguments are fixed for July 13.

The Women & Media Collective organisation had filed this Fundamental Rights petition seeking an order suspending the Presidential Pardon granted by former President Maithripala Sirisena to Royal Park murder convict Don Shamantha Jude Anthony Jayamaha.

The Supreme Court has already issued an interim order directing the Controller General of Immigration and Emigration to prevent Royal Park murder convict Don Shamantha Jude Anthony Jayamaha from leaving the country without court permission.

The Supreme Court granted leave to proceed with this petition for violating Article 12(1) of the Constitution.

The Women & Media Collective organisation filed this Fundamental Rights petition naming Attorney General Don. Shamantha Jude Anthony Jayamaha, Commissioner General of Prisons, Controller General of Immigration and Emigration, Inspector General of Police, Justice Minister, and President of the Bar Association of Sri Lanka as respondents.

The petitioners are further seeking an order to issue guidelines governing the grant of Presidential Pardon by the Head of State in terms of Article 34 (1) of the Constitution.

Jude Anthony Jayamaha was indicted before the High Court by the Attorney-General for committing the murder of Yvonne Jonsson (who was 19 years of age at the time) on or about July 1, 2005, in terms of Section 294 of the Penal Code and punishable under Section 296 of the Penal Code.

Jude Anthony Jayamaha was tried before a single judge of the High Court sitting without a jury. In the judgement dated July 28, 2006, the High Court judge pronounced a finding of culpable homicide not amounting to murder, thereby convicting the accused and sentencing him to a term of 12 years of rigorous imprisonment in conjunction with a fine of Rs. 300,000.

Subsequently, the Attorney General filed an appeal in the Court of Appeals on the basis of the inadequacy of the sentence as well as to have the finding of culpable homicide not amounting to murder set aside and converted to one of murder and sentenced to death.

In his appeal, the Attorney General maintained that the accused had harboured a conspicuous and most palpably evident murderous intention against the deceased and that he carried out and executed this murderous intention in the most cold-blooded and premeditated fashion; furthermore, the same could be substantiated by a wealth of evidence that amply satisfied the threshold of proof beyond reasonable doubt.

The Court of Appeal delivered a very detailed and comprehensive judgement of 33 pages and allowed the appeal of the Attorney-General and set aside the conviction for culpable homicide, not amounting to murder, as well as the sentence of 12 years rigorous imprisonment and the fine of Rs. 300,000 that had been imposed on the accused by the High Court, and instead made a pronouncement and finding that the accused had committed the offence of murder under and in terms of Section 294 of the Penal Code, convicted him of murder, and accordingly passed a sentence of death.

The petitioner stated that the President, though vested with the Constitutional power to grant a pardon, does not have the freedom to do so in gross violation of the Rule of Law, as well as all notions of justice, equity, and rationality, as well as in reckless disregard of the sensibilities and sensitivities of the matter, including the existence of an aggrieved family, which is still to come to terms with the gruesome murder of Yvonne Jonsson, whose life was snuffed out at a very young age at the hands of the accused.

The Petitioners plead that there has been a gross violation of the Fundamental Rights of the Petitioners as well as the citizens and people of Sri Lanka, as well as of the family of Yvonne Jonsson, amounting to a violation of Article 12(1), in which there is a guarantee of equality and equal protection of the law.

President’s Counsel Sanjeeva Jayawardena appeared for the petitioner. Faizer Mustapha, PC, appeared for former President Maithripala Sirisena. Romesh de Silva, PC, appeared for R. Johnson. Saliya Peiris, PC, appeared for the Bar Association of Sri Lanka.