Transparency International Sri Lanka has called upon the government to make public the following documents as regards the presidential pardon granted to the convict in the case of the Mirusuvil massacre.
Presidential Secretariat must make the following documents public –
Report of the Trial Judge
Advice of the Attorney General
Recommendation of the Justice Minister
Transparency International Sri Lanka (TISL) calls on the Presidential Secretariat to publicly disclose all relevant documents in the case of the presidential pardon afforded to the convict in the case of the Mirusuvil Massacre of December 2000.
TISL is concerned that failure to do so could result in irreparable damage to the separation of powers between the executive and judiciary especially given that the conviction and sentencing in this case was upheld by a 5 member bench of the Supreme Court comprised of Justices Buvaneka Aluvihare, Nalin Perera, Sisira de Abrew, Priyantha Jayawardena and Murdhu Fernando in April 2019.
Whilst Article 34 of the constitution empowers the President to grant pardons to any offenders, the same article adds the caveat that “where any offender shall have been condemned to suffer death by the sentence of any court, the President shall cause a report to be made to him by the Judge who tried the case and shall forward such report to the Attorney-General with instructions that after the Attorney-General has advised thereon, the report shall be sent together with the Attorney-General’s advice to the Minister in charge of the subject of Justice, who shall forward the report with his recommendation to the President”.
Furthermore, regulation 20/1/iv, promulgated by Gazette No. 2004/66 under the Right to Information (RTI) Act in February 2017 also requires all public authorities to proactively disclose “decisions and formal acts, particularly those that directly affect the public including the data and documents used as the basis for these decisions and acts”. TISL believes that the pardoning of individuals convicted for murder, and the documents underpinning these pardons, qualify as matters that directly affect the public.
TISL Executive Director Asoka Obeyesekere said, “in two instances in the recent past, we have witnessed the powers of presidential pardon being exercised without the disclosure of the information to substantiate these pardons. This trend of executive action potentially subverting judicial process is very disturbing as it will cause the public to lose faith in the judiciary as the arbiters of justice under the law”.
Obeyesekere added, “It is essential that in both recent cases, there should be immediate public disclosure of the advice provided to Presidents Rajapaksa and Sirisena. The disclosure of this information would also underscore President Rajapaksa’s commitment to technocratic governance”.
TISL calls on Secretary to the President Dr. P.B. Jayasundera to immediately publish the reports of the trial judge, the advice of the Attorney General and the recommendations of the Minister of Justice in both cases, in line with the provisions of the constitution and the RTI Act.