Checks on Presidential pardons most welcome

The Supreme Court last week overturned an order by Maithripala Sirisena to grant a Presidential pardon to Jude Shramantha Jayamaha, a convicted murderer. The controversial pardon was granted by Sirisena during the final days of his presidency to Jayamaha, who was sentenced to death over the Royal Park murder incident. The Supreme Court has now determined that the Presidential pardon granted to Jayamaha is in violation of the Constitution and invalidated the pardon.  

Jayamaha, a member of an influential and wealthy family, was sentenced to death for the murder of Yvonne Jonsson at the Royal Park Condominium complex in Rajagiriya in 2005. He was initially sentenced to 12 years in prison in 2012 but was later convicted of murder by the Court of Appeal.

In January this year the Supreme Court ruled that the Presidential pardon granted to former Member of Parliament Duminda Silva by President Gotabaya Rajapaksa was illegal and invalid. This was the first instance in which a court had nullified a Presidential pardon in Sri Lanka. Silva was convicted in September 2016 by the High Court, along with four others, for the 2011 murder of politician Bharatha Lakshman Premachandra. The High Court imposed the death sentence on all five individuals, a decision later affirmed by a five-judge bench of the Supreme Court.

Silva, a one time ‘Monitoring Member of Parliament’ of the Ministry of Defence, a bizarre position created during the Mahinda Rajapaksa era, was granted a Presidential pardon in 2021 by former Secretary to Defence and then President Gotabaya Rajapaksa. This pardon followed another controversial and highly politically motivated pardon to a convicted army sergeant named Sunil Rathnayake. He had been found guilty of killing eight Tamil civilians in a cold-blooded massacre, a verdict upheld by the Supreme Court.  

The Supreme Court found that former President Rajapaksa had failed to adhere to the proper legal procedures in granting the special Presidential pardon thus making it illegal and invalid. The Supreme Court accordingly instructed the Commissioner General of Prisons to undertake the necessary measures to enforce the sentence imposed on Duminda Silva by the court. He is reported to be in prison hospital since being taken into custody.

These verdicts by the Supreme Court have corrected wrongs which in the eyes of many were perversion of justice using wealth and influence. Presidential pardons are part of the powers given to the Executive President, which also comes with wide discretionary powers on how they can be used. But many are concerned that using Presidential pardons can undermine the rule of law and the independence of the Judiciary. According to the Constitution, before pardoning a convict, it is essential for the President to call for reports from the Attorney General, the judge of the court that imposed the sentence and the Minister of Justice. 

The judicial system must operate, and must be seen to be operating, in an independent and efficient manner. The rich and the powerful cannot be allowed to sidestep this process, not only because it is morally and ethically wrong, but also because confidence in the legal system will be destroyed.

A Presidential pardon should be a tool that is a check on any miscarriages of justice or excesses. Commuting sentences of death, pardoning those convicted for petty crimes or those who have served long sentences should be the priority of such authority. It is hoped that the recent precedence set by the Supreme Court establishes the norm that executive power and discretion has its limitations.