Former Human Rights Commissioner contests Presidential pardon to convicted Army officer

By S.S. Selvanayagam

A former member of the Sri Lanka Human Rights Commission has filed a Fundamental Rights violation petition as a public interest litigation, contesting the Presidential clemency granted to an Army officer convicted for the massacre in Mirusuvil of Jaffna peninsula.

Relatives of the deceased also filed a petition through their Attorney-at-Law Kesavan Sajanthan while Centre for Policy Alternatives and its Executive Director Dr. Paikiasothy Saravanamuttu too have filed a separate petition.

Petitioner Ambika Satkunanathan, former Commissioner of HRC, filed her petition to ensure that the power of the Executive to pardon persons is done in a transparent and fair manner, according to objective standards, and the existing gaps and shortcomings are addressed. She states however that the moratorium on the death penalty in Sri Lanka should continue.

She cited the Attorney General, the convict Rathnayake Mudiyanselage Sunil Ratnayake, the Commi-ssioner General of Prisons, Nimal Siripala de Silva who is the Minister of Justice, Human Rights and Legal Reforms, the Secretary to the President and the National Authority for the Protection of Victims of Crimes and Witnesses as Respondents. 

She stated that presidential pardons have a positive effect, and the allowance of such clemency takes recognition of the possibility of miscarriages of justice and other extenuating circumstances

She underlined that there should be transparency and accountability in the process of granting such pardons which consider intelligible objective criteria, and is therefore subject to judicial review.

She pointed out that the underlying purpose of incarceration can be duly met by a valid rehabilitation of a prisoner and the successful reintegration of such individual into society.

She added that a systematic process was required in the justice system, as opposed to any ad-hoc system, that duly provides for pardons in light of the above. Any such process must include certainty about the processes followed and the substantive and objective criteria applied.

She stated the second Respondent-convict who was a Lance Corporal in the Army serving in the Gajaba Regiment was accused of a massacre that took place in Mirusuvil (Jaffna), where eight Tamil citizens were murdered, of whom three were children, one as young as five years old, and he was subsequently found guilty by the HC of Colombo at a Trial-at-Bar and sentenced to death after an approximately 13-year-long trial.

She further stated the Supreme Court comprising a bench of five Judges, partially allowed the appeal of the said Respondent, but unanimously affirmed the conviction and sentence imposed by the High Court on several counts in the indictment, relating to common intention to commit murder (counts 10-18), and to cause hurt to the victim-survivor (count 19).

She stated the second Respondent-convict was therefore on death row, awaiting the implementation of death sentence.

The matter was appealed to the Supreme Court, which after carefully analysing all the evidence available, came to a reasoned decision and partially allowed the appeal, whilst affirming and confirming the conviction and sentence of the High Court for certain counts relating to inter alia, murder, she stated.

Thus, the death sentence imposed on the second Respondent remained unchanged, she highlighted.

She stated this appears to be in line with the President’s undertakings during his election campaign in November 2019, where he specifically pledged to pardon ‘war heroes’ who have been imprisoned based on false charges.

The granting of a presidential pardon to the convict of such a judgment sets a very negative precedent, she stated.

She stated (a) any purported decision made under Article 34 of the Constitution to pardon the second Respondent is arbitrary, capricious, irrational contrary to the principles of natural justice, made for collateral purposes and violative of the Petitioner’s fundamental rights; (b) any purported decision to grant a pardon is contrary to the Rule of Law and in the absence of a transparent and accountable mechanism for granting such pardons, in the circumstances is tantamount to Contempt of Court; (c) there is no unfettered discretion vested in any authority, and the actions impugned herein disclose unfettered exercise of discretion; (d) a carte blanch pardon in any event appears to be a disproportionate response especially in light of the carefully-analysed evidence of both the High Court of Colombo and the Supreme Court.

She insisted the actions of the State to ex facie pardon an individual who has been found guilty of a heinous crime on the one hand, but to purportedly carry out the death penalty for one specified category of individuals [i.e., those convicted for drug related offences] whilst denying them access to clemency, is arbitrary, capricious, irrational and/or ultra vires the powers of any one or more of the Respondents, and contrary to international human rights norms and that the need to urgently release the second Respondent in the midst of a pandemic brought about by COVID-19 is ex facie arbitrary inasmuch as, no formalised method was set in place to deal with prisoners and prison overcrowding during such pandemic.

She stated that actions of any one or more of the Respondents in purporting to grant a Presidential pardon to the second Respondent is contrary to the objectives of the Assistance to and Protection of Victims of Crime and Witnesses Act and runs counter to victims’ right to access, disclosure, compensation and reparations.

She emphasised that such purported Presidential pardon would also run counter to the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power and the International Covenant on Civil and Political Rights.

She is seeking an appropriate Interim Order from the Court to stay the issuance of any special presidential pardons until the final determination of this application and a declaration that the actions and/or inactions of any one or more of the Respondents have violated the Fundamental Rights of the Petitioner.

She is asking for a declaration from the Court that the second Respondent is not entitled to a presidential pardon under Article 34(1)(a) of the Constitution and seeking the Court to declare null and void and no force in Law and/or quash the decision to pardon the second Respondent by the President.