Check on Presidential pardons 

This week the Supreme Court decided to suspend the Presidential pardon that had been granted to former Parliamentarian Duminda Silva. The interim order was issued after the court heard two fundamental rights petitions filed by former MP Hirunika Premachandra and her mother challenging the Presidential pardon. President Gotabaya Rajapaksa granted a special Presidential pardon to Duminda Silva in June 2021. After his release from prison, Silva was appointed as the Chairman of the National Housing Development Authority in August 2021 by President Rajapaksa.

Silva was not the first convicted murderer to benefit from President Rajapaksa’s discretionary powers for pardon. In 2020 he granted a Presidential pardon to Sargent Sunil Ratnayake, of his own Gajaba regiment of the Army. Rathnayaka was on death row for the murder of eight Tamil civilians, including three children in 2000. He was sentenced to death by a Trial-at-Bar bench of the Colombo High Court in June 2015 and the verdict held by a five-judge bench of the Supreme Court.

It is not an everyday occurrence for the Sri Lankan Supreme Court to check the powers of the Executive President. The Court has been extremely reluctant to perform this role in the past, often accommodating even excesses by the Executive branch and to date there has not been a successful challenge of a Presidential pardon. Irrespective of the decision this week being an interim order and not a final verdict it is an important step in reminding that Presidential discretion and authority is not absolute in our Republic. In effect the Executive President, however powerful he may be, is still not a King. 

It can be argued that the power to pardon is granted to the Executive, in order to work as a ‘check’ on the powers of the Judiciary, since it would provide for one final means of rectifying any miscarriages of justice. In Sri Lanka where there is mandatory sentencing for certain crimes such as murder such Executive discretion to ease the sentence or offer a pardon in rare occasions becomes necessary.  If convicted of a crime such as murder, the Court as no option but to deliver a mandatory sentence of death and in such cases the President commuting the sentence to life imprisonment is a humane act which prevents the mental torture of a death row inmate. Since Sri Lanka has not judicially executed a prisoner since 1976, such acts of clemency are routine requirements. 

However, a President arbitrarily issuing pardons for individuals due to political and financial considerations does not serve justice and results in the undermining of the whole judicial process and the rule of law.  There is no doubt that in Sri Lankan the granting of Presidential pardons has been abused. In 2019 president Maithripala Sirisena granted two pardons, one to Galabodaatte Gnanasara who was serving a six-year jail term for contempt of court and Shramantha Jude Anthony Jayamaha, who was sentenced to death in the Royal Park Murder case. President Mahinda Rajapaksa pardoned Mary Juliet Monica Fernando, the wife of a former Minister of Parliament who was sentenced to death for a double murder in 2005.

In more advanced democracies the Judiciary has the authority to review Executive pardons. This will ensure that this authority is not abused by the Executive for personal, political, or financial gain as seen in Sri Lanka. In the United Kingdom, the courts have the jurisdiction to review the exercise of the Royal Prerogative of Mercy by the Queen ‘in accord with accepted public law principles’ and in India the Supreme Court decided in Epuru Sudhakar and Anor v Government of Andhra Pradesh that it has jurisdiction to judicially review the pardoning power of the President of the Republic.

The Supreme Court finally addressing this issue is a welcome development.  It is hoped that this case will set a precedent that no powers of the Executive are arbitrary.