Economic and public sector reforms alone will not help Sri Lanka to stage an effective recovery and move to a better trajectory as a country. Another essential component of change which is needed is to rebuild its citizenry’s faith in our domestic justice mechanisms and in the fair enforcement of the law. These two sectors play a key part in improving governance and building investor confidence in the troubled island as well.
The Sri Lankan Judiciary yesterday (6) cut to size the often abused powers vested in the executive presidency, with the Supreme Court (SC) quashing the order to grant a Presidential pardon by former President Maithripala Sirisena to 2005 Royal Park murder convict Shramantha Jude Anthony Jayamaha, stating that it contravenes provisions under the Constitution. The SC also invalidated the pardon granted to Jayamaha, and ordered that Sirisena, an incumbent Opposition MP to pay compensation of Rs. 1 million to the petitioner, and Rs. 1 million each to the mother and father of the aggrieved young woman, who was the victim of the Royal Park murder. This is the second presidential pardon issued by a former President, which the SC has overturned. The SC, which ruled that Sirisena had intentionally violated the Constitution through this act, ordered the Attorney General (AG) to take necessary legal measures for the extradition of the defendant, who is currently overseas. It remains to be seen how enthusiastically the AG’s Department will carry out the order.
The verdict was delivered by a three-Judge SC bench composed of Justices, S. Thurairaja PC, Yasantha Kodagoda PC, and Janak De Silva, following the consideration of a fundamental rights petition filed by the Women and Media Collective. In 2014, the SC upheld the death sentence imposed on Jayamaha by the Court of Appeal (he was previously sentenced to 12 years of rigorous imprisonment by the Colombo High Court) for the 2005 murder of 19-year-old Yvonne Jonsson in what is infamously known as the Royal Park murder.
In January this year, the SC found that the 2021 Presidential Pardon granted to the former Member of Parliament Duminda Silva who was convicted of murder of politician Bharatha Lakshman Premachandra had no legal basis, and squashed it. The landmark order was made by a three-judge bench of the Supreme Court following court proceedings on several petitions filed by the late Bharatha Lakshman Premachandra’s wife and daughter. The court also ordered the Prisons Department to take steps to implement the sentence previously imposed on Silva. Gotabaya Rajapaksha, army Colonel turned Secretary of Defence, and President in 2019, pardoned Silva who was serving a life sentence for the murder of Premachandra, among others. Rajapaksa’s decision to grant the pardon to Silva and other prisoners who were behind bars for various crimes drew strong criticism and many pointed out that the move would set a bad precedent and erode confidence in the justice system of Sri Lanka.
While the presidency has the powers of granting pardons, there were questions about due process being followed, and if the decision was the right one. The disregard for the judicial process and natural justice which Gotabaya Rajapaksa so callously ignored in granting a pardon for Silva, has been put right with yesterday’s Supreme Court decision. Similar questions were raised when Sirisena granted Shramantha Jude Anthony Jayamaha a pardon shortly before his tenure came to an end. Delivering the court’s findings, the Judges stated: “For the foregoing reasons, I have no legal basis or even a factual basis to uphold the decision made by the former President to grant a pardon to the recipient in the instant case. I hold that the said decision is arbitrary, irrational and has been made for the reasons best known to the former President who appears to have not even made any written decision and has not given any reason thereto.”
The right to justice is fundamental for a functional and stable democracy, while public perceptions of how justice is meted out will always vary on how the public interprets the facts presented to them, strong democracies empower their state institutions and the Judiciary. Yesterday’s court decision will build on historic rulings, and serve to remind the public that a healthy, independent, transparent and well-resourced Judiciary will always be their last line of defence in the face of injustice. It will also remind the politico and the bureaucracy, that irrespective of powers entrusted to them, the wheels of justice, will surely catch up with them when they abuse such powers.