Former President Gotabaya Rajapaksa had failed to submit even a single document to establish that he had properly exercised his discretion in Granting a Pardon to Duminda Silva

By

Kishali Pinto-Jayawardene

When bare-faced lies are uttered by the President of a country to the apex court of the land, of what worth is the Constitution?

The murky circumstances of the Silva pardon

This question arises in the wake of Wednesday’s ruling by the Supreme Court holding that the pardon granted in 2021 by former President Gotabaya Rajapaksa to his political ally, Duminda Silva violated Article 12 (1) of the Constitution in that it was, inter alia, arbitrary and irrational amounting to a wrongful exercise of constitutional discretion.

The Rajapaksa pardon had been granted to Silva after his conviction by a majority verdict of the High Court in 2016 along with several other accused for the murder of parliamentarian Bharatha Lakshman Premachandra.

That conviction was affirmed on appeal by the Supreme Court in 2018. This week’s decision is interesting in its elaboration of the mysterious process under Section 34 (1) under which pardons are granted along with elucidation of the 19th Amendment’s impact on the vexed question of presidential immunity. I will come to these points later. But what stands out most glaringly is the consternation of the Court in trying to unravel the murky circumstances in which the pardon had been granted in the first instance.

The former President had claimed that he had acted bona fide and in the ‘interest of the country,’ not for ‘personal or political affiliation.’ Using Article 33 (h) of the Constitution which obliges the President to do ‘acts and things’ that would not be inconsistent with the Constitution or written law, the Court summarily dismissed an effort by his lawyers to argue that its review should be confined to whether the formal requirements of Section 34 had been met or not.

Going on a ‘voyage of discovery’

Rather, the legal issue was identified as pivoting around the fit and proper use of Presidential discretion in granting pardons. This was in the context of the long established principle in administrative law that there can be no unfettered discretion.

On the facts, the former President had failed to submit even a single document to establish that he had properly exercised his discretion. This propelled the judges to go on a veritable ‘voyage of discovery’ to ascertain the same or the absence thereof.

The former President had recalled before Court in an imaginatively drafted affidavit that ‘medical reports’ had been tendered to him stating that Silva had a medical condition along with ‘several other material which necessitated his pardon’ which should be in the Presidential Secretariat.’

But as was sharply noted, no such documents had been tendered to the judges despite a specific judicial directive to that effect. This was apart from Silva’s mother and governing parliamentarians making a request.

In other words, there was no material on hand to establish that the former President exercised his discretion correctly, let alone discharging his responsibility to have acted bona fide and in the interest of the country. Certainly there is a trace of bizarre comedy here if the implications were not so serious in establishing beyond a doubt, the utter degeneration of Sri Lanka’s constitutional process.

‘What is the interest of the country?’

In fact, one must spare a cynical thought for the amoral dexterity of the lawyers who drafted such a peculiar affidavit for the former President in the first place. Hard pressed to provide any justification at all apart from the crudely political/obvious reasons as it were, this would have been the best option available. But the judicial scorn with which that attempt is dismissed, is clear.

‘When the former President decided to grant the pardon which is impugned in the instant case, what is the interest of the country he had taken into consideration?’ the Bench asked (Padman Surasena J writing for the Court). This could have been disclosed only by the former President and/or by the documentation that he would have left in the Presidential Secretariat when he relinquished office, the Court reasons. But no records have been placed before the Court to that effect showing that he exercised proper discretion or considered material placed before him.

That failure is core to ruling that the basis for granting of the impugned pardon ‘is not discernible even as an underlying reason.’ Thus, the judges find themselves unable to accept the former President’s claim that he acted in the ‘best interest of the country.’

The silence of the (then) Justice Minister

Secondly the former President had claimed that he followed ‘due process’ in Section 34 (1). This stipulates that a report by the Judges who tried the case must be forwarded to the Attorney General for advice and then sent to the Justice Minister for recommendation which is forwarded to the President. Most interestingly, all documents pertinent to the case are reproduced in Wednesday’s ruling offering rare scrutiny into the working of the process.

Accordingly, High Court judge M.C.B.S. Morais who formed the majority verdict convicting Silva, articulates sentiments that reverberate regarding ‘accountability of politicians.’ He states that, ‘the role of a politician in a democratic society is to lead people and be an example to others…in this incident, four persons were murdered and another was attempted to be murdered…

He goes on to add that, ‘in my view any pardon considered for the prisoner would not tally with the norms of a democratic society.’ Forwarding the reports of the three judges to the Justice Minister, the Attorney General meanwhile had advised that, inter alia, the power of pardon must be exercised in regard to the test of ‘rationality, reasonableness, intelligible and objective criteria.’

Interestingly, it appears that the Justice Minister at the time (now the Minister of Foreign Affairs) had not made any recommendation at all,


A cutting judicial reprimand

This invites the judicial observation that the Justice Minister had only forwarded/summarised the Attorney General’s advice along with observations by the trial judges. The Attorney General’s advice had not been complied with. The impughed pardon had meanwhile been conferred only on Silva, not on the other convicts similarly circumstanced as him. All of this leads to a cutting judicial reprimand in regard to the manner in which the power had been exercised.

In sum, the ruling reiterates the principle that the Executive President cannot claim unfettered discretion when exercising constitutional power. The amendment of Article 35 through the 19th Amendment to the Constitution where the President may be cited in fundamental rights challenges is discussed exhaustively.

The Court notes with force that even previously, immunity did not shield Presidential acts. It is remarked that the pardon had ‘totally eroded the confidence reposed by the public in the criminal justice system.’ This was not a lawful exercise of executive power.

That is to put the matter mildly, it may be said tongue-in-cheek as it were.

Courtesy:Sunday Times