Gotabaya Rajapaksa landed this country in such a mess, on his watch as the President, that it has apparently been left doing only two things at present—undoing what he did and doing what he undid. His much-advertised Vistas of Prosperity and Splendour was like the Dhammika Peniya or the herbal syrup that a shaman touted as a cure for Covid-19.
The unholy mess Gotabaya created has taken its toll on every sector. The Supreme Court (SC) has righted a wrong he made on the legal front; it has quashed the questionable presidential pardon he granted to former MP Duminda Silva, who was sentenced to death in the Bharatha Premachandra murder case.
The SC has made it abundantly clear that the Executive President cannot act according to his or her whims and fancies and has to function within the confines of the Constitution, which however is far from perfect. It has rectified the widely-held misconception that a presidential pardon is a fait accompli. The SC judgement will have a deterrent effect on the Executive and hopefully prevent the abuse of the presidential power of pardon in the future.
Almost all presidential pardons have been problematic in this country. It may be recalled that the executive presidential system began with a pardon for a notorious rapist, Gonawala Sunil, who was serving a jail term for harming a teenage girl. He was freed from jail to do dirty work for the Jayewardene government; he was instrumental in carrying out savage attacks on the Opposition, and rigging elections. The tradition has continued, and several murderers and even drug offenders have received presidential pardons over the decades.
Ironically, President Maithripala Sirisena, who realised his presidential dream by offering to usher in good governance, and do away with excessive executive powers of the presidency, granted pardons to Galabodaatte Gnanasara Thera, who was serving a prison term for contempt of court, and Jude Anthony Jayamaha, who was sentenced to death in the Royal Park murder case.
President Mahinda Rajapaksa pardoned a former Minister’s wife, Monica Fernando, who had been sentenced to death for murder. Besides former MP Silva, ex-Lance Corporal Sunil Ratnayake on death row for murdering eight Tamil civilians received a presidential pardon from President Gotabaya Rajapaksa.
The Constitution of Sri Lanka has some loopholes, which enable the Executive Presidents to do as they please and undermine the other institutions, and even usurp their powers. Only the judiciary has been courageous enough to stand up to the Executive. The Legislature has become a mere appendage of the President.
Article 34 (1) of the Constitution has set out the process to be followed when a convict on death row is given a presidential pardon. The President can require the judge who tried the case to make a report, which is forwarded to the Attorney-General for his advice, and thereafter sent to the Minister of Justice for submission to the President with his recommendations. According to legal experts, this process lends itself to manipulation with the President keeping the Attorney General and the Justice Minister under his or her thumb, and therefore needs to be amended.
The SC is receiving praise for Wednesday’s bold judgment, which has gladdened the hearts of all those who cherish justice, but we must not lose sight of the need to strengthen the judiciary’s hands by rectifying constitutional loopholes. We suggest that the issue of high-handed executive action including the granting of presidential pardons to convicts be taken up for debate in Parliament and remedial action taken. Other countries such as the UK and India have dealt with this issue effectively, and Sri Lanka can learn from their experience.