Bar Association of Sri Lanka (BASL) in a letter to President Gotabaya Rajapaksa has sought several clarifications on the presidential pardon granted to former Parliamentarian Duminda Silva.
Duminda Silva was convicted of murder and facing death sentence by a divisional bench of the Supreme Court.
While maintaining that if one or more considerations that has to be satisfied under the constitution to pardon a murder convict is not satisfied the pardon granted “would be unreasonable, arbitrary and will result in erosion to the Rule of Law and result in a loss of public confidence in respect of the administration of justice”.
The BASL acknowledge the President’s right to pardon “any offender convicted for any offence by any court of the country”, under article 34 of the Constitution. However, “Article 34 (1) requires the President to call for a report from the Judge who tried the case where the offender has been condemned to death. Such report is required to be forwarded to the Attorney General for advice and the proviso also requires the Attorney General’s opinion to be referred to the Minister of Justice who too is required to submit a recommendation to the President,” the letter reads.
Accordingly in its letter the BASL requests the President to convey to it and the general public “The basis on which Duminda Silva was selected for the purpose of granting a pardon under Article 34 (1) of the Constitution; The circumstances which were taken into consideration in the granting of such pardon; The reasons as to why the case of Duminda Silva stands out from others who are currently sentenced; Whether a report was called for by His Excellency the President from the Trial Judges as required by the Proviso to Article 34 (1) prior to granting of the pardon to Duminda Silva and if so the contents of the report; Whether the advice of the Attorney General was called for prior to granting of the pardon to Duminda Silva and if so the contents of such advice; Whether the recommendation of the Minister of Justice was obtained prior to granting of the pardon to Duminda Silva and if so whether the Minister of Justice made such a recommendation.”
During local government elections held back in 2011 SLFP stalwart Baratha Premachandra and Duminda Silva along with their supporters engaged in a confrontation which resulted in the death of Premachandra and several others. Silva was also heavily hurt.
Subsequently the matter was taken up before a trial-at-bar two out of the three judges found him guilty of committing the offence of murder. Silva appealed to the Supreme Court where the Divisional bench hearing the matter which consisted of the former Chief Justice, Priyasath Dep, unanimously affirmed the conviction.
Accordingly, the BASL categorically states that it is the right of the public to know whether the said pardon has been granted in accordance with the powers vested with the executive to carryout such pardoning.
“Whilst His Excellency the President has the power and discretion to pardon, such discretion must always be exercised judiciously. Such power must not be exercised arbitrarily and selectively. The BASL is mindful that in the past too there have been instances where selective pardons have been granted without any material to justify the basis on which the respective prisoners were selected for granting of such pardons, and the BASL has on those occasions strongly taken up the same position which the BASL is now taking up,” the letter reads.
Meanwhile, the US Ambassador to Sri Lanka, Alaina B. Teplitz in a tweet stated that pardoning of Duminda Silva undermines the Rule of law and went on to state that “Accountability and equal access to justice are fundamental to the UN SGDs to which the Government of Sri Lanka has committed.”
