Features
THE DUMINDA SILVA PARDON
by Dr Nihal Jayawickrama
The Attorney-General had indicted 13 persons on 17 counts including murder following the death of one Bharatha Lakshman Premachandra in 2012. In September 2016, in the High Court of Colombo, at the conclusion of a Trial-at-Bar before three Judges, in a majority judgment, five accused were convicted of several offences including murder, and were sentenced to death on the charge of murder, and to life imprisonment and varying periods of imprisonment and fines on the other charges. Eight were acquitted.
Except for one convict who had been tried in absentia, the other four appealed against their convictions and sentences. A Bench of five Judges of the Supreme Court, headed by Chief Justice Priyasath Dep, heard arguments for 15 days. On October 10, 2018, in a 51-page judgment, the Supreme Court affirmed the convictions and sentences and dismissed the appeals.
Among the five who had been convicted was the 11th Accused, Arumadura Lawrence Romelo Duminda Silva. He was a former Member of Parliament who had previously served as the Monitoring Member of the Ministry of Defence, appointed to that position by the then Minister of Defence President Mahinda Rajapaksa. The Secretary of Defence at the time was Gotabaya Rajapaksa who was later elected President of the Republic in November 2019.
President’s power of pardon
In or about May 2021 President Gotabaya appears to have pardoned Duminda Silva in the purported exercise of his powers as President of the Republic. Under Article 34 of the Constitution, the President may grant a pardon to any offender convicted of any offence in any court in Sri Lanka. However, if that offender had been sentenced to death, the President is required to cause a report to be made to him by the Judge who tried the case. He is then required to forward that report to the Attorney-General with instructions that after the Attorney-General has advised thereon, both reports should be sent to the Minister of Justice who is required to forward both reports, with his own recommendation, to the President.
Challenge in the Supreme Court
Shortly thereafter, the daughter and the wife of the deceased Premachandra petitioned the Supreme Court alleging that the pardon violated their fundamental right to equality before the law and the equal protection of the law. Several senior counsel representing the interested parties, including former President Gotabhaya Rajapakse, made submissions before a bench of three judges of the Supreme Court: Justices Padman Surasena, E.A.G.R.Amaraskera, and Arjuna Obeyesekere.
Sequence of events
During the proceedings in the Supreme Court, it transpired that:
· On December 16, 2019, barely a month after Gotabaya Rajapaksa had assumed the office of President, Mrs Romain Malkanthi Silva had written to him stating that her son’s medical condition required him to be out of prison.
· On October 19, 2020, following the general election held two months earlier, 117 Members of Parliament, by letter addressed to President Gotabaya Rajapaksa, requested the grant of a pardon to Duminda Silva.
·On May 4, 2021, High Court Judge Morais reported that he did not recommend a pardon to be considered.
· On May 11, 2021, High Court Judge Padmini Gunatilake reported that “Duminda Silva was lawfully convicted and sentenced to death”, and that she cannot recommend that he be pardoned.
· On June 21, 2021, the Attorney-General, by letter addressed to the Minister of Justice, informed him that Duminda Silva had been convicted of four counts of murder, one count of attempted murder, and two counts of criminal intimidation. He had been sentenced to death in respect of each count of murder, and to a term of 20 years rigorous imprisonment on the count of attempted murder. He noted that the convictions and sentences had been upheld by a five-judge bench of the Supreme Court. Accordingly, he advised that any exercise of the President’s power of pardon “should be capable of withstanding the test of rationality, reasonableness, intelligible and objective criteria”. He stressed that under the law it was not open to the President to make a subjective decision to grant a pardon. “A pardon is not a private act of grace from an individual happening to possess power”, he added.
· In forwarding the above reports to the President, the Minister of Justice refrained from making any recommendation, concluding his letter by merely stating “It is a matter for Your Excellency to exercise the discretion vested with Your Excellency under Article 34 of the Constitution”.
No documentation available
Neither the Attorney-General, nor Counsel appearing for the former President, was able to produce any document or file that contained the President’s order granting a pardon. Nor were they able to produce a file that contained even a minute made by the President explaining the reason why the pardon was being given. The only document produced by the Attorney-General to explain the President’s decision was a letter written by the Secretary to the President to the President of the Bar Association in reply to the latter’s letter dated June 24, 2021. That letter contained the following paragraph:
I am instructed by His Excellency the President to inform you that due process as per Article 34(1) of the Constitution of the Democratic Socialist Republic of Sri Lanka has been followed in granting pardon to Mr. Duminda Silva. Accordingly, reports from the Trial Judges, recommendations from Hon. Attorney-General and the Minister of Justice were called prior to granting of the pardon to Mr. Duminda Silva. Mr. Silva’s pardon was given due consideration following the appeal made by his mother Mrs. Romain Malkanthi Silva on December 6, 2019.
The Supreme Court noted that the record pertaining to the impugned pardon, including a copy of a gazette, proclamation or any other document containing the decision for and/or grant of the pardon, had not been produced.
Judgment of the Court
Having considered all the material and submissions, the Court held that it had no legal basis or even a factual basis to uphold the decision made by the former President to grant a pardon.
“I hold that the said decision is arbitrary, irrational, and has been made for the reasons best known to the former President who appears to have not even made any written decision and has not given any reasons thereto.”
Accordingly, the Court unanimously held that the fundamental rights guaranteed to the petitioners by Article 21(1) of the Constitution had been infringed; and that the decision to grant the pardon to Duminda Silva was null and void and was therefore quashed. The Commissioner-General of Prisons was directed to take necessary steps to give effect to the judgment.
A Comment
There are two stages after a person is convicted of an offence and sentenced to death, imprisonment or fine when the Head of State may intervene. These were originally stated in the Royal Instructions of 1947:
· The Governor-General shall not grant a pardon, respite, or remission to any offender without first receiving, in every case, the advice of one of his Ministers.
· Where any offender shall have been condemned to suffer death by the sentence of any Court, the Governor-General shall cause a report to be made to him by the Judge who tried the case, and he 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 whose function it is to advise the Governor-General on the exercise of the said powers.
It is a common practice to grant “an amnesty” to certain categories of prisoners, usually based on their conduct, on special occasions such as Independence Day or Republic Day, Wesak or Christmas Day. The list of prisoners to be released is prepared by the prison authorities and submitted through the Minister of Justice to the Head of State for approval.
It is interesting to know whether that practice was considered when Parliament enacted the Protection of Victims of Crime Act in August 2023.
Section 5 of that Act states that the victim of a crime has the right, when the remission of the sentence of a person convicted of an offence is being considered, “to receive notice thereof” and to submit to the person considering such remission “the manner in which the offence committed has impacted on such victim of crime physically, emotionally, psychologically, financially, professionally, or in any other manner”. In a situation in which several hundreds, if not thousands, of prisoners are identified for an amnesty, how practicable would it be to comply with this requirement?
In respect of persons sentenced to death, the procedure set out in the Royal Instructions has previously been scrupulously followed. It commences at the conclusion of the trial. In the Ministry of Justice when Felix Dias Bandaranaike was the Minister and I was the Permanent Secretary, if either the trial judge or the Attorney-General had recommended that the sentence should not be carried out, the Minister advised the Head of State that the sentence be commuted to one of life imprisonment.
If the trial judge and the Attorney-General had both recommended that the sentence be carried out, a Senior Assistant Secretary examined the case record and the investigation notes for one of three elements: (1) evidence of premeditation; (2) excessive cruelty in the commission of the murder; (3) any other material that “shocks the conscience”. If one of these elements was present, the Minister advised to let the law take its course.
In 1976 a policy decision was taken to suspend judicial executions. Consequently, on May 22, 1977, the fifth anniversary of the Republic, President Gopallawa commuted the sentences of everyone on death row to life imprisonment: 144 men and three women. Thereafter, Presidents Jayewardene and his successors in office, Presidents Premadasa, Wijetunge, Kumaranatunge and Rajapakse commuted every sentence of death. In 2019, as his term drew to a close, President Sirisena appeared to have developed a passion to resume executions.
It was reported that, at his instance, the prison authorities advertised for a hangman, purchased a rope from Pakistan, and drew up a list of those lingering in the death row. Then, with lightening speed, he pardoned convicted killer Shramantha Jude Anthony Jayamaha who had been sentenced to death for the brutal murder of Yvonne Jonsson by ramming her head against her apartment stairs. No plausible explanation was ever offered for his sudden and inexplicable change of course.
by Dr Gotabhya Ranasinghe
Senior Consultant Cardiologist
National Hospital Sri Lanka
When we sought a meeting with Hon Dr. Ramesh Pathirana, Minister of Health, he graciously cleared his busy schedule to accommodate us. Renowned for his attentive listening and deep understanding, Minister Pathirana is dedicated to advancing the health sector. His openness and transparency exemplify the qualities of an exemplary politician and minister.
Dr. Palitha Mahipala, the current Health Secretary, demonstrates both commendable enthusiasm and unwavering support. This combination of attributes makes him a highly compatible colleague for the esteemed Minister of Health.
Our discussion centered on a project that has been in the works for the past 30 years, one that no other minister had managed to advance.
Minister Pathirana, however, recognized the project’s significance and its potential to revolutionize care for heart patients.
The project involves the construction of a state-of-the-art facility at the premises of the National Hospital Colombo. The project’s location within the premises of the National Hospital underscores its importance and relevance to the healthcare infrastructure of the nation.
This facility will include a cardiology building and a tertiary care center, equipped with the latest technology to handle and treat all types of heart-related conditions and surgeries.
Securing funding was a major milestone for this initiative. Minister Pathirana successfully obtained approval for a $40 billion loan from the Asian Development Bank. With the funding in place, the foundation stone is scheduled to be laid in September this year, and construction will begin in January 2025.
This project guarantees a consistent and uninterrupted supply of stents and related medications for heart patients. As a result, patients will have timely access to essential medical supplies during their treatment and recovery. By securing these critical resources, the project aims to enhance patient outcomes, minimize treatment delays, and maintain the highest standards of cardiac care.
Upon its fruition, this monumental building will serve as a beacon of hope and healing, symbolizing the unwavering dedication to improving patient outcomes and fostering a healthier society.We anticipate a future marked by significant progress and positive outcomes in Sri Lanka’s cardiovascular treatment landscape within the foreseeable timeframe.
by Fr. Emmanuel Fernando, OMI
Jesuit Fr. Aloysius Pieris (affectionately called Fr. Aloy) celebrated his 90th birthday on April 9, 2024 and I, as the editor of our Oblate Journal, THE MISSIONARY OBLATE had gone to press by that time. Immediately I decided to publish an article, appreciating the untiring selfless services he continues to offer for inter-Faith dialogue, the renewal of the Catholic Church, his concern for the poor and the suffering Sri Lankan masses and to me, the present writer.
It was in 1988, when I was appointed Director of the Oblate Scholastics at Ampitiya by the then Oblate Provincial Fr. Anselm Silva, that I came to know Fr. Aloy more closely. Knowing well his expertise in matters spiritual, theological, Indological and pastoral, and with the collaborative spirit of my companion-formators, our Oblate Scholastics were sent to Tulana, the Research and Encounter Centre, Kelaniya, of which he is the Founder-Director, for ‘exposure-programmes’ on matters spiritual, biblical, theological and pastoral. Some of these dimensions according to my view and that of my companion-formators, were not available at the National Seminary, Ampitiya.
Ever since that time, our Oblate formators/ accompaniers at the Oblate Scholasticate, Ampitiya , have continued to send our Oblate Scholastics to Tulana Centre for deepening their insights and convictions regarding matters needed to serve the people in today’s context. Fr. Aloy also had tried very enthusiastically with the Oblate team headed by Frs. Oswald Firth and Clement Waidyasekara to begin a Theologate, directed by the Religious Congregations in Sri Lanka, for the contextual formation/ accompaniment of their members. It should very well be a desired goal of the Leaders / Provincials of the Religious Congregations.
Besides being a formator/accompanier at the Oblate Scholasticate, I was entrusted also with the task of editing and publishing our Oblate journal, ‘The Missionary Oblate’. To maintain the quality of the journal I continue to depend on Fr. Aloy for his thought-provoking and stimulating articles on Biblical Spirituality, Biblical Theology and Ecclesiology. I am very grateful to him for his generous assistance. Of late, his writings on renewal of the Church, initiated by Pope St. John XX111 and continued by Pope Francis through the Synodal path, published in our Oblate journal, enable our readers to focus their attention also on the needed renewal in the Catholic Church in Sri Lanka. Fr. Aloy appreciated very much the Synodal path adopted by the Jesuit Pope Francis for the renewal of the Church, rooted very much on prayerful discernment. In my Religious and presbyteral life, Fr.Aloy continues to be my spiritual animator / guide and ongoing formator / acccompanier.
Fr. Aloysius Pieris, BA Hons (Lond), LPh (SHC, India), STL (PFT, Naples), PhD (SLU/VC), ThD (Tilburg), D.Ltt (KU), has been one of the eminent Asian theologians well recognized internationally and one who has lectured and held visiting chairs in many universities both in the West and in the East. Many members of Religious Congregations from Asian countries have benefited from his lectures and guidance in the East Asian Pastoral Institute (EAPI) in Manila, Philippines. He had been a Theologian consulted by the Federation of Asian Bishops’ Conferences for many years. During his professorship at the Gregorian University in Rome, he was called to be a member of a special group of advisers on other religions consulted by Pope Paul VI.
Fr. Aloy is the author of more than 30 books and well over 500 Research Papers. Some of his books and articles have been translated and published in several countries. Among those books, one can find the following: 1) The Genesis of an Asian Theology of Liberation (An Autobiographical Excursus on the Art of Theologising in Asia, 2) An Asian Theology of Liberation, 3) Providential Timeliness of Vatican 11 (a long-overdue halt to a scandalous millennium, 4) Give Vatican 11 a chance, 5) Leadership in the Church, 6) Relishing our faith in working for justice (Themes for study and discussion), 7) A Message meant mainly, not exclusively for Jesuits (Background information necessary for helping Francis renew the Church), 8) Lent in Lanka (Reflections and Resolutions, 9) Love meets wisdom (A Christian Experience of Buddhism, 10) Fire and Water 11) God’s Reign for God’s poor, 12) Our Unhiddden Agenda (How we Jesuits work, pray and form our men). He is also the Editor of two journals, Vagdevi, Journal of Religious Reflection and Dialogue, New Series.
Fr. Aloy has a BA in Pali and Sanskrit from the University of London and a Ph.D in Buddhist Philosophy from the University of Sri Lankan, Vidyodaya Campus. On Nov. 23, 2019, he was awarded the prestigious honorary Doctorate of Literature (D.Litt) by the Chancellor of the University of Kelaniya, the Most Venerable Welamitiyawe Dharmakirthi Sri Kusala Dhamma Thera.
Fr. Aloy continues to be a promoter of Gospel values and virtues. Justice as a constitutive dimension of love and social concern for the downtrodden masses are very much noted in his life and work. He had very much appreciated the commitment of the late Fr. Joseph (Joe) Fernando, the National Director of the Social and Economic Centre (SEDEC) for the poor.
In Sri Lanka, a few religious Congregations – the Good Shepherd Sisters, the Christian Brothers, the Marist Brothers and the Oblates – have invited him to animate their members especially during their Provincial Congresses, Chapters and International Conferences. The mainline Christian Churches also have sought his advice and followed his seminars. I, for one, regret very much, that the Sri Lankan authorities of the Catholic Church –today’s Hierarchy—- have not sought Fr.
Aloy’s expertise for the renewal of the Catholic Church in Sri Lanka and thus have not benefited from the immense store of wisdom and insight that he can offer to our local Church while the Sri Lankan bishops who governed the Catholic church in the immediate aftermath of the Second Vatican Council (Edmund Fernando OMI, Anthony de Saram, Leo Nanayakkara OSB, Frank Marcus Fernando, Paul Perera,) visited him and consulted him on many matters. Among the Tamil Bishops, Bishop Rayappu Joseph was keeping close contact with him and Bishop J. Deogupillai hosted him and his team visiting him after the horrible Black July massacre of Tamils.
Sri Lanka-Singapore Free Trade Agreement
By Gomi Senadhira
senadhiragomi@gmail.com
“You might tell fairy tales, but the progress of a country cannot be achieved through such narratives. A country cannot be developed by making false promises. The country moved backward because of the electoral promises made by political parties throughout time. We have witnessed that the ultimate result of this is the country becoming bankrupt. Unfortunately, many segments of the population have not come to realize this yet.” – President Ranil Wickremesinghe, 2024 Budget speech
Any Sri Lankan would agree with the above words of President Wickremesinghe on the false promises our politicians and officials make and the fairy tales they narrate which bankrupted this country. So, to understand this, let’s look at one such fairy tale with lots of false promises; Ranil Wickremesinghe’s greatest achievement in the area of international trade and investment promotion during the Yahapalana period, Sri Lanka-Singapore Free Trade Agreement (SLSFTA).
It is appropriate and timely to do it now as Finance Minister Wickremesinghe has just presented to parliament a bill on the National Policy on Economic Transformation which includes the establishment of an Office for International Trade and the Sri Lanka Institute of Economics and International Trade.
Was SLSFTA a “Cleverly negotiated Free Trade Agreement” as stated by the (former) Minister of Development Strategies and International Trade Malik Samarawickrama during the Parliamentary Debate on the SLSFTA in July 2018, or a colossal blunder covered up with lies, false promises, and fairy tales? After SLSFTA was signed there were a number of fairy tales published on this agreement by the Ministry of Development Strategies and International, Institute of Policy Studies, and others.
However, for this article, I would like to limit my comments to the speech by Minister Samarawickrama during the Parliamentary Debate, and the two most important areas in the agreement which were covered up with lies, fairy tales, and false promises, namely: revenue loss for Sri Lanka and Investment from Singapore. On the other important area, “Waste products dumping” I do not want to comment here as I have written extensively on the issue.
1. The revenue loss
During the Parliamentary Debate in July 2018, Minister Samarawickrama stated “…. let me reiterate that this FTA with Singapore has been very cleverly negotiated by us…. The liberalisation programme under this FTA has been carefully designed to have the least impact on domestic industry and revenue collection. We have included all revenue sensitive items in the negative list of items which will not be subject to removal of tariff. Therefore, 97.8% revenue from Customs duty is protected. Our tariff liberalisation will take place over a period of 12-15 years! In fact, the revenue earned through tariffs on goods imported from Singapore last year was Rs. 35 billion.
The revenue loss for over the next 15 years due to the FTA is only Rs. 733 million– which when annualised, on average, is just Rs. 51 million. That is just 0.14% per year! So anyone who claims the Singapore FTA causes revenue loss to the Government cannot do basic arithmetic! Mr. Speaker, in conclusion, I call on my fellow members of this House – don’t mislead the public with baseless criticism that is not grounded in facts. Don’t look at petty politics and use these issues for your own political survival.”
I was surprised to read the minister’s speech because an article published in January 2018 in “The Straits Times“, based on information released by the Singaporean Negotiators stated, “…. With the FTA, tariff savings for Singapore exports are estimated to hit $10 million annually“.
As the annual tariff savings (that is the revenue loss for Sri Lanka) calculated by the Singaporean Negotiators, Singaporean $ 10 million (Sri Lankan rupees 1,200 million in 2018) was way above the rupees’ 733 million revenue loss for 15 years estimated by the Sri Lankan negotiators, it was clear to any observer that one of the parties to the agreement had not done the basic arithmetic!
Six years later, according to a report published by “The Morning” newspaper, speaking at the Committee on Public Finance (COPF) on 7th May 2024, Mr Samarawickrama’s chief trade negotiator K.J. Weerasinghehad had admitted “…. that forecasted revenue loss for the Government of Sri Lanka through the Singapore FTA is Rs. 450 million in 2023 and Rs. 1.3 billion in 2024.”
If these numbers are correct, as tariff liberalisation under the SLSFTA has just started, we will pass Rs 2 billion very soon. Then, the question is how Sri Lanka’s trade negotiators made such a colossal blunder. Didn’t they do their basic arithmetic? If they didn’t know how to do basic arithmetic they should have at least done their basic readings. For example, the headline of the article published in The Straits Times in January 2018 was “Singapore, Sri Lanka sign FTA, annual savings of $10m expected”.
Anyway, as Sri Lanka’s chief negotiator reiterated at the COPF meeting that “…. since 99% of the tariffs in Singapore have zero rates of duty, Sri Lanka has agreed on 80% tariff liberalisation over a period of 15 years while expecting Singapore investments to address the imbalance in trade,” let’s turn towards investment.
Investment from Singapore
In July 2018, speaking during the Parliamentary Debate on the FTA this is what Minister Malik Samarawickrama stated on investment from Singapore, “Already, thanks to this FTA, in just the past two-and-a-half months since the agreement came into effect we have received a proposal from Singapore for investment amounting to $ 14.8 billion in an oil refinery for export of petroleum products. In addition, we have proposals for a steel manufacturing plant for exports ($ 1 billion investment), flour milling plant ($ 50 million), sugar refinery ($ 200 million). This adds up to more than $ 16.05 billion in the pipeline on these projects alone.
And all of these projects will create thousands of more jobs for our people. In principle approval has already been granted by the BOI and the investors are awaiting the release of land the environmental approvals to commence the project.
I request the Opposition and those with vested interests to change their narrow-minded thinking and join us to develop our country. We must always look at what is best for the whole community, not just the few who may oppose. We owe it to our people to courageously take decisions that will change their lives for the better.”
According to the media report I quoted earlier, speaking at the Committee on Public Finance (COPF) Chief Negotiator Weerasinghe has admitted that Sri Lanka was not happy with overall Singapore investments that have come in the past few years in return for the trade liberalisation under the Singapore-Sri Lanka Free Trade Agreement. He has added that between 2021 and 2023 the total investment from Singapore had been around $162 million!
What happened to those projects worth $16 billion negotiated, thanks to the SLSFTA, in just the two-and-a-half months after the agreement came into effect and approved by the BOI? I do not know about the steel manufacturing plant for exports ($ 1 billion investment), flour milling plant ($ 50 million) and sugar refinery ($ 200 million).
However, story of the multibillion-dollar investment in the Petroleum Refinery unfolded in a manner that would qualify it as the best fairy tale with false promises presented by our politicians and the officials, prior to 2019 elections.
Though many Sri Lankans got to know, through the media which repeatedly highlighted a plethora of issues surrounding the project and the questionable credentials of the Singaporean investor, the construction work on the Mirrijiwela Oil Refinery along with the cement factory began on the24th of March 2019 with a bang and Minister Ranil Wickremesinghe and his ministers along with the foreign and local dignitaries laid the foundation stones.
That was few months before the 2019 Presidential elections. Inaugurating the construction work Prime Minister Ranil Wickremesinghe said the projects will create thousands of job opportunities in the area and surrounding districts.
The oil refinery, which was to be built over 200 acres of land, with the capacity to refine 200,000 barrels of crude oil per day, was to generate US$7 billion of exports and create 1,500 direct and 3,000 indirect jobs. The construction of the refinery was to be completed in 44 months. Four years later, in August 2023 the Cabinet of Ministers approved the proposal presented by President Ranil Wickremesinghe to cancel the agreement with the investors of the refinery as the project has not been implemented! Can they explain to the country how much money was wasted to produce that fairy tale?
It is obvious that the President, ministers, and officials had made huge blunders and had deliberately misled the public and the parliament on the revenue loss and potential investment from SLSFTA with fairy tales and false promises.
As the president himself said, a country cannot be developed by making false promises or with fairy tales and these false promises and fairy tales had bankrupted the country. “Unfortunately, many segments of the population have not come to realize this yet”.
(The writer, a specialist and an activist on trade and development issues . )
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