(By Shalika Wimalasena | Translated by Akitha Wijayasinghe)
A report by the Sunday Times revealed that former parliamentarian Duminda Silva will be given a presidential pardon despite him serving a death row over the murder of fellow-politico Bharatha Lakshman Premachandra. Silva was found guilty of the murder.
According to the political column of the newspaper, a group of MPs of the ruling party are signing a petition, demanding a presidential pardon for Duminda Silva. Preliminary work on the signing of the petition was done while the vote on the 20th Amendment to the Constitution was being taken up in Parliament, it further reported.
It also mentioned that the petition will be handed over to the President after obtaining the signatures of all the ruling party MPs.
On the day of the 2011 local government election, Premachandra, father of former parliamentarian Hirunika Premachandra, and the director general of the President’s Trade Unions during Mahinda Rajapaksa’s presidency, was assassinated. Silva and four others were sentenced to death by the High Court and one suspect remains missing.
This missing suspect known as Galaboda Priyantha, has worked as a personal bodyguard to Duminda Silva. The group appealed at the High Court but the sentence remained changed.
History of the Presidential Pardon
Presidential pardon is one of the most abused and one that will continue to be abused powers in this country. It is a good indicator of how a government and its guardians are abusing the rule of law. President J.R. Jayewardene pardoned Gonawala Sunil, who was convicted of child abuse. He didn’t stop there, and continued to make Sunil a Justice of Peace for the whole island.
Amid several examples, passing Ranasinghe Premadasa and Chandrika Bandaranayake down the timeline, it was Mahinda Rajapaksa who gave a new meaning to this presidential pardon. A group including the Basnayake Nilame of the Sabaragamuwa Devalaya who were convicted of murder has been acquitted by Rajapaksa during his regime. During the Maithripala Sirisena period, Ven. Galagodaaththe Gnanasara Thero, Jude Shramantha Jayamaha and the former Chairman of the Warakapola Divisional Council were pardoned.
Mahinda’s Rishad and Maithri’s Gnanasara
Gnanasara Thera, who was charged for contempt of court was pardoned by the President. This is how the President signaled that anyone can do anything to the judiciary.
The law was not enforced against Rishad Bathiudeen, the former minister who threw stones at the Mannar Magistrate’s Court during the tenure of President Mahinda Rajapaksa. State media reported that Rishad Bathiudeen would be arrested in connection with the April 21 Easter Sunday attacks, but that too did not happen.
His request to the court to refrain from arresting him was also rejected. Somehow, he was arrested for violating election rules.
Divisional Council Chairman’s scandal
Former Chairman of the Warakapola Divisional Council Makewitage Lakshman Pathiraja Samarasinghe was also pardoned by the President. He was charged with bribery. He was convicted and sentenced to 18 years in prison. The accused also lost the case filed in the Court of Appeal.
He was accused of soliciting a bribe of Rs. 25,000 from a contractor to award contracts for the construction of three roads in the Warakapola area. The sentence was issued for an offense committed 24 years ago.
The Court of Appeal, which upheld the sentence against the former chairman, summoned the defendant to read the sentence and explain to him. He walked in with a file. It contained a letter, which was said to be a pardon from the President. The file contained a letter sent to the Colombo High Court Registrar by the Ministry of Justice stating that he had been granted a presidential pardon.
It further stated that the accused had been released under a Presidential pardon in accordance with the powers vested in the President under Article 34 (c) of the Constitution and that action should be taken accordingly.
Five charges including bribery, were filed against the ‘public servant,’ the Chairman of the Warakapola Divisional Council between January 1 and 31, 1995. It was proved that he had taken bribes to award contracts for the construction of Udugama, Thambadiya and Ovitigala roads in the Warakapola area.
He was convicted of three counts and sentenced on October 29, 2009. On March 31, 2010, he filed an appeal against the decision.
Mahinda-Maithri joint pardon
Former President Sirisena addressing the UN General Assembly on National Youth Models in Colombo on October 20, 2019 spoke about the value of patience. The former president further stated that the Royal Park assassination had been carried out by Jude Shramantha Jayamaha due to lack of patience and that it was being considered granting him a presidential pardon as he had been in good behaviour in prison.
Few days after the statement was made, Jayamaha received the Presidential pardon.
He was sentenced by the Colombo High Court to 12 years in prison for the 2005 murder of a young woman named Yvonne Johnson at the Royal Park housing scheme in Rajagiriya. The decision was appealed by the defendant, and the Court of Appeal increased his sentence to death.
Defendants again went to the Supreme Court against the death sentence. The Supreme Court upheld the Court of Appeal’s decision. However, before Maithripala Sirisena, former President Rajapaksa used the death sentence to life imprisonment.
The extent of power
The President is empowered by the Constitution to make such a decision. But as senior lawyers point out, it is an error in our constitution, that there is no mention of under what circumstances it should be done or what the criteria are for granting such a presidential pardon.
Lawyers further emphasize that it is true that not all aspects can be interpreted one by one in the constitution. But it is also bound by legal and moral backgrounds. For example, this pardoned person can be considered a person who can make a direct contribution to the future of the country, who has a serious request from the country to pardon him, who can do good for the society, even if he has done something wrong. The President is obliged to consider such a request.
What is in store for Duminda?
As the Sunday Times has reported, the petition seeking a presidential pardon for Duminda Silva is being signed and the reason behind making it public is the fact mentioned above- a serious request from the country. Then the opportunity for the people to blame the President for making this decision is a bit confusing than it was before. Even senior lawyers say the president is obliged to consider such a request when there is a strong demand from the country.
No difference in America
US President Donald Trump has also pardoned more than a dozen convicts in the past. The last time he granted presidential pardoned was in May 2019 to a close friend of his named Conrad Black who owned a media outlet. He authored a book, “Donald Trump, There Is No One Like Him”. He was charged with financial irregularities. There was no pressure from the country to pardon him. It did not matter that the whole country knew the face behind the mask.