Duminda, 16 LTTE cadres among 93 released by Prez: BASL writes to President, seeks explanation

Former Colombo District UPFA MP Duminda Silva and 16 LTTE cadres detained under the Prevention of Terrorism Act (PTA) were given a presidential pardon yesterday to mark Poson full moon Poya. They were among 93 persons released yesterday.

Duminda Silva and 12 others were accused of 17 charges including the murder of MP Bharatha Lakshman Premachandra and four others on October 8, 2011. A special three-member panel of High Court judges acquitted seven suspects and sentenced five, including former MP Silva to death on September 8th 2016. The President of the court, however, dissented with the judgment. Subsequently, it transpired in taped conversations that former MP Ranjan Ramanayake, now in prison for contempt of the Supreme Court, had discussed with one of the judges in the case to have Duminda Silva convicted. Ramanayake had similar conversations with ex-Director of the CID Shani Abeysekera on Silva.

Silva, and three others sentenced to death appealed to the Supreme Court to declared the manner in which they were sentenced was unlawful. The Supreme Court on 11 October 2018 rejected the appeal and upheld the lower court’s ruling.

Field Marshal Sarath Fonseka and Sports Minister Namal Rajapaksa on June 22 requested in parliament Justice Minister Ali Sabry to do justice by the ex-Tigers languishing in jail for many years either by rehabilitating them or by presenting their cases to the Attorney General.

A group of SLPP lawmakers in late Oct, 2020 signed a petition circulated by the Chief Government Whip seeking presidential pardon for former MP Duminda Silva.

Attorney-at-law Rajeev Amarasuriya, Secretary, Bar Association of Sri Lanka (BASL) yesterday issued the following statement regarding the presidential pardon granted to Duminda Silva, one-time Monitoring MP for the Defence Ministry: “The attention of the Executive Committee of the Bar Association of Sri Lanka (BASL) has been drawn to a pardon given by His Excellency the President to Duminda Silva, a prisoner who was convicted for unlawful assembly and murder by a High Court at Bar, which was unanimously affirmed by a Divisional Bench of the Supreme Court headed by the then Chief Justice Priyasath Dep.

Whilst Article 34(1) of the Constitution of the Democratic Socialist Republic of Sri Lanka allows the President to grant such a pardon, either free or subject to lawful considerations, the proviso to Article 34 (1) requires the President to call for a report from the Judge who tried the case where the offender has been condemned to death. Such report is required to be forwarded to the Attorney General for advice and the proviso also requires the Attorney General’s opinion to be referred to the Minister of Justice who too is required to submit a recommendation to the President.

It is the right of the public to know whether the said pardon has been granted in accordance with the report of the trial Judges, the opinion of the Attorney General and the recommendation of the Minister of Justice. As such, the BASL has written to His Excellency the President requesting to make the public aware whether such report, opinion or recommendation do exist and if so whether they in fact recommend or do not recommend such pardon to Duminda Silva.

Whilst the President has the power and discretion to pardon, such discretion must always be exercised judiciously. Such power must not be exercised arbitrarily and selectively.

The BASL is mindful that in the past too there have been instances where selective pardons have been granted without any material to justify the basis on which the respective prisoners were selected for granting of such pardons, and the BASL has on those occasions strongly taken up the same position which the BASL is now taking up.

Any pardon to be granted under Article 34 of the Constitution should be made after a careful analysis of the necessity to grant such a pardon as stipulated in the proviso to Article 34 (1) of the Constitution.

In the aforesaid circumstances, the BASL has written to the President and requested that His Excellency convey to the BASL and to the general public :-

(a) The basis on which Duminda Silva was selected for the purpose of granting a pardon under Article

34 (1) of the Constitution;

(b) The circumstances which were taken into consideration in the granting of such pardon;

(c) The reasons as to why the case of Duminda Silva stands out from others who are currently sentenced;

(d) Whether a report was called for by His Excellency the President from the Trial Judges as required by the Proviso to Article 34 (1) prior to granting of the pardon to Duminda Silva and if so the contents of the report;

(e) Whether the advice of the Attorney General was called for prior to granting of the pardon to Duminda Silva and if so the contents of such advice;

(f) Whether the recommendation of the Minister of Justice was obtained prior to granting of the pardon to Duminda Silva and if so whether the Minister of Justice made such a recommendation;

The Bar Association of Sri Lanka maintains that if any one or more considerations stated above, were not satisfied in the current case, the pardon granted to Duminda Silva would be unreasonable and arbitrary and will result in erosion to the Rule of Law and result in a loss of public confidence in respect of the administration of justice.”