In a move that will strengthen the public’s trust in state institutions and the justice mechanism in Sri Lanka, the Supreme Court yesterday (17) found that the 2021 Presidential Pardon granted to the former Member of Parliament Duminda Silva who was convicted of murder 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 Rajapaksa, the Army Colonel turned Secretary of Defence, and controversial 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.
Delivering the court’s findings, 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. Further, no reason can be discerned from any document submitted by Hon. Attorney General as forming part of the record pertaining to the impugned grant of pardon. The Petitioners are therefore entitled to succeed with their petitions. I proceed to grant the following relief to the Petitioners in SC FRA No. 221/ 2021, SC FRA No.225/ 2021 and SC FRA No. 228/ 2021…” The three-judge bench ordered the former President’s pardon “null and void” and no for or avail any effect in law, adding that “I proceed to quash the decision to grant the pardon to Arumadura Lawrence Romello Duminda Silva who stands as the 2nd Respondent in SC FRA No. 221/2021 and SC FRA No. 225/2021 and the 4th Respondent in SC FRA No. 228/2021 by the President of the country (former President). I direct the Commissioner General of Prisons to take necessary steps in terms of law with regard to the implementation of the sentences imposed on Arumadura Lawrence Romello Duminda Silva (the 2nd Respondent in SC FRA No. 221/2021 and SC FRA No. 225/2021 and the 4th Respondent in SC FRA No. 228/2021) as per the judgments of Court (the judgment of [SC FR 221/2021, SC FR 225/2021 and SC FR 228/2021]”
From the beginning, there were concerns about the procedure for granting a pardon, which involves a notification and consultative process, had not been followed. Many pointed out that it was a political decision, and not one in the public’s interest. However, the ousted President continues to assert that he was right in his decision, stating in his submissions to the Supreme Court, that “I acted bona fides and in the interest of the country”. This offers an insight into the working of the mind of the former president, who though elected with a landslide vote, was not the best material for a statesman. Gotabaya Rajapaksa had denied the insinuation that he granted the pardon due to personal or political affiliation. Rajapaksa asserts that he followed due procedure.
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 be a historic one, 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.