BY S.S. Selvanayagam
A former Member of the Sri Lanka Human Rights Commission (SLHRC) as a public interest litigation filed a Fundamental Right violation petition contesting the Presidential clemency granted to the army officer who has been convicted for the massacre at Mirusuvil in the Jaffna Peninsula.
Relatives of the deceased also filed a Petition through their Attorney-at-Law Kesavan Sajanthan while the Centre for Policy Alternative and its Executive-Director Dr. Paikiasothy Saravanamuttu too have filed a separate petition.
Petitioner Ms Ambika Satkunanathan former commissioner of SLHRC 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 Attorney General, the convict Rathnayake Mudiyanselage Sunil Ratnayake, the Commissioner General of Prisons, Nimal Siripala de Silva who is the Minister of Justice, Human Rights & Legal Reforms, Secretary to the President and the National Authority for the Protection of Victims of Crimes and Witnesses as Respondents.
She states that Presidential pardons have a positive e by Family Meffect, and the allowance of such clemency takes recognition of the possibility of miscarriages of justice and other extenuating circumstances.
She underlines 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 points out that the underlying purpose of incarceration can be duly met by a valid rehabilitation of a prisoner, and the successful re-integration of such individuals into society.
She adds that a systematic process is 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 states 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 8 Tamil citizens were murdered of whom 3 were children, one as young as 5 years old and he was subsequently found guilty by the HC of Colombo at a Trial-at-Bar and sentenced to death after approximately a 13-year trial. She further states the Supreme Court comprising of a Bench of 5 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. She states the 2nd Respondent-convict was therefore on death row, awaiting the implementation of death sentence. Thus, the death sentence imposed on the 2nd Respondent remained unchanged, she highlights.
She states (a) any purported decision made under Article 34 of the Constitution to pardon the 2nd 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 .