• Youth political activists, law u’grads & ex-public servants call for constitutional violators to be barred from legislating
• Demands reassessment of pardon powers and its process   

In a recent decision, the Supreme Court (SC) declared that the Presidential pardon granted by former President and current Opposition Parliamentarian Maithripala Sirisena to Royal Park murder convict Don Shramantha Jude Anthony Jayamaha was in violation of the Constitution. This ruling, which echoes a previous SC verdict invalidating former President Gotabaya Rajapaksa's pardon of former MP Duminda Silva, who was convicted of the murder of former MP Bharatha Lakshman Premachandra, has ignited a debate surrounding the unchecked exercise of Presidential power.

Last week, a three-Judge Supreme Court (SC) bench, composed of Justices, President’s Counsel (PC) S. Thurairaja, Yasantha Kodagoda PC, and Janak De Silva, quashed the Presidential pardon granted by Sirisena to Jayamaha. This decision, made in response to a fundamental rights (FR) petition filed by the Women and Media Collective, stated that the pardon contravened the relevant Constitutional provisions. The SC ruled that Sirisena had intentionally violated the Constitution and ordered him to pay Rs. 1 million in compensation to the petitioner and Rs. 1 million each to the parents of the young woman who was the victim of the Royal Park murder. 

Earlier this year (2024), the SC, in response to petitions filed by Premachandra's wife, Sumana Premachandra, daughter Hirunika Premachandra, and attorney and former Human Rights Commissioner Ghazali Hussain, invalidated Rajapaksa's decision to grant a Presidential pardon to Silva. The SC determined that Rajapaksa had not followed the proper legal procedures in granting the pardon.

An array of stakeholders, ranging from political activists to law students and retired public servants, amplified their voices in advocating for a comprehensive reassessment of the Presidential pardoning process. They also stressed on the need to introduce legal provisions aimed at ensuring that Constitutional violations do not go unpunished.

The Constitution’s Articles which include the powers and functions of the President state: "The President may, in the case of any offender convicted of any offence in any court within Sri Lanka, grant a pardon, either free or subject to lawful conditions; grant any respite, either indefinite for such period as the President may think fit, of the execution of any sentence passed on such offender; substitute a less severe form of punishment for any punishment imposed on such offender; or remit the whole or any part of any punishment imposed or of any penalty or forfeiture otherwise due to the Republic on account of such offence." In relation to pardoning death row convicts, the Constitution states that the President should cause a report to be made to him/her by the Judge who tried the relevant case and forward such report to the Attorney General (AG). With the AG's instructions, the report should be forwarded to the Minister of Justice, who shall forward the report with his/her recommendation to the President.

Speaking to The Daily Morning, youth political activist Duleepa Madusanka, said that the SC has confirmed the misuse of Presidential pardons, which are intended to provide relief to individuals who have been punished due to deficiencies in the legal system. Specifically, he pointed out that the SC found two recent Presidential pardons granted by two former Presidents to be unconstitutional, and their annulment confirmed that these Presidents had misused their power. "The SC ruled that both the Presidential pardon granted by Rajapaksa to Silva and Sirisena to Jayamaha were in violation of the Constitution. A President takes the oath of office and pledges to rule the country according to the Constitution. If, after the SC has determined that they have violated the Constitution, they can get away with merely paying some compensation, then, we have to question whether the law is truly equal for everyone." Madusanka further expressed regret that individuals who have been ruled by the SC to have violated the Constitution continue to hold Legislative positions. "It is deeply concerning that those found guilty of such serious constitutional violations continue to hold positions such as being an MP. If the legal system fails to rectify this, the people must take a stand and reject such individuals in the upcoming elections."

Law student Samith Harshana, speaking to The Daily Morning, argued for a thorough investigation into the rationale behind the President's decisions to pardon individuals involved in notorious crimes, such as murders, when there are numerous other prisoners who could more justifiably be considered for pardons. "No crime can be justified, but there are certain criminals who were driven to commit crimes by unavoidable circumstances or where they were instigated by others. A Presidential pardon for such individuals can be justified to some extent. However, it is perplexing and concerning why the Presidents, in the recent past, have chosen to pardon those involved in the most notorious cases — individuals who have committed serious crimes and have been found guilty by multiple courts. What benefit does the country or society gain from pardoning such criminals?" He emphasised that the Presidential pardoning powers have been misused for political or financial gain in the recent past, adding that it highlights a troubling pattern of pardoning individuals not based on principles of justice or mercy, but rather on ulterior motives. "Using the power entrusted to them by the people to pardon those who have committed serious crimes is a betrayal of public trust. These decisions are not only legally and ethically questionable but also deeply disrespectful to the victims and their families."

In a statement issued in this regard, the Centre for Protecting the Rights of Prisoners (CPRP) also lauded the recent verdict of the SC, hailing it as a pivotal step towards safeguarding the rights of all prisoners. In a landscape where disparities in treatment persist, they said that the majority of prisoners are deprived of even the most fundamental privileges whereas some prisoners enjoy undue advantages solely on account of their proximity to wealth and political influence. Emphasising the imperative of equitable treatment for all incarcerated individuals, the CPRP asserted that the SC's ruling serves as a compelling reminder that Executive powers, even in the hands of Presidents, cannot be wielded arbitrarily. This ruling, they affirmed, affirms the principle that no one, regardless of their position or status, is above the law.

Expressing her views, a retired Administrative Service officer K.H. Jayawardena said that legal provisions should be introduced to ensure that any person who has violated the Constitution is permanently barred from holding any position in the political field or public sector. "We constantly assert that the Constitution is supreme, but, if someone deliberately violates this supreme law and can then continue to influence the country's legislation or hold high public office, what is the basis for claiming the Constitution's supremacy? For example, the Court ruled that Sirisena violated the Constitution on several occasions, including during his Presidency. Yet, he continues to contribute to the country's legislation. This should not be permissible. If the authorities do not address this, the people must rally and fight for change." 

She also pointed to the inconsistency and unfairness in disciplinary measures across different sectors. "It is regrettable that in a country where civil servants face disciplinary actions like compulsory leave or suspension for minor infractions, individuals in the highest political positions can act as they wish without consequence. Such double standards undermine the integrity of our legal and political systems." For a country to progress economically, socially and politically, Jayawardena added that everyone must abide by the same legal framework.

The family of Royal Park victim, Yvonne Jonsson, stated last week that the SC ruling that Sirisena’s pardon of Jayamaha is arbitrary and not valid in law brought them a profound sense of relief and justice. “The tragic and brutal loss of Yvonne has left an unfillable void in our hearts, causing us immense and ongoing pain. The pardon felt like a deep betrayal, compounding our grief and anguish. This judgement reaffirms the importance of justice and accountability, emphasising that decisions of such significance cannot be made on a whim,” the family stated, adding further that this ruling is not only a victory for them, but also for all who believe in the rule of law. 

"It is also a significant step for all female victims in Sri Lanka. This has affirmed that their lives and dignity cannot be compromised by arbitrary decisions,” they said, noting however that it is imperative that the murderer is swiftly located and brought back to prison, emphasising that the extradition proceedings are not solely about bringing closure to them, but also about ensuring that justice is genuinely served. They stressed the importance of not allowing any gaps in extradition agreements to hinder the pursuit of justice.

Last week, there was extensive discussion on social media platforms regarding the SC ruling. While numerous social media users expressed appreciation for the decision, they also raised concerns about the feasibility of Sri Lankan authorities extraditing Jayamaha, who is currently reported to be residing abroad. Drawing from past experiences where criminals fled to foreign countries, many users highlighted critical comments on the relevant processes, recalling instances where considerable time was taken to repatriate them, and in certain cases, the failure to do so. 

When The Daily Morning inquired about the actions that the Police could take to extradite Jayamaha, Minister of Public Security Tiran Alles said that the Police must wait for the Attorney General's (AG) directions. "Now that the case is over, the AG will have to issue directions to the Police on the actions to be taken. The Police cannot do anything without the AG's directions," he explained. Media reports have suggested that extraditing Jayamaha may be challenging due to the lack of relevant agreements between Sri Lanka and Singapore. When queried about this issue, Minister Alles noted that he was not aware of any such agreement related deficiencies, and emphasised that the relevant authorities would need to address the related issues.