Presidency should be straitjacketed

Saturday 26th June, 2021

Presidential pardons for convicted prisoners always cause public outrage when the beneficiaries happen to be politically connected. It is only natural that President Gotabaya Rajapaksa has come under fire over the release from prison of former UPFA MP Duminda Silva. One cannot but agree with the position taken by the Bar Association of Sri Lanka (BASL) on the issue; one considers it is worthy of public endorsement. Taking exception to the presidential action at issue, the BASL has, in a letter to the President, called for an explanation. One hopes that the President will respond.

Protests, however, will not prevent Presidents from releasing convicted criminals from prison. In the late 1970s, the SLFP-led Opposition let out a howl of protest when the late President J. R. Jayewardene pardoned Gonawala Sunil, who was serving a jail term for raping a teenage girl. About three decades later, among those President Mahinda Rajapaksa released from prison were two foreign women incarcerated for drug dealing, and a politician’s wife on death row for a murder. President Maithripala Sirisena, who promised good governance, pardoned the Royal Park murderer, among others. The incumbent President has released an army officer imprisoned for killing Tamil civilians.

There is a pressing need to curtail the presidential powers as regards pardons for convicts. It is much more prudent to campaign for putting in place constitutional safeguards to restrain the Executive President than to protest when convicts are given pardons and then forget about the issue. It is our failure to put the President in a constitutional straitjacket anent his or her power to pardon prisoners that has enabled JRJ, Mahinda, Sirisena and Gotabaya to act in this deplorable manner.

While being critical of the presidential pardons for convicts, one should not make the mistake of thinking that every judicial decision is synonymous with justice, and the judiciary is infallible. There have been judgments that have raised many an eyebrow. Former Chief Justice Sarath N Silva has publicly regretted his judgment in a case against then Prime Minister Mahinda Rajapaksa. Ranjan Ramanayake’s telephone recordings that contain his conversations with judges and senior police officers on criminal investigations and court cases, during the yahapalana days, have not only revealed how politicians exert influence on some members of the judiciary and the police but also caused an erosion of public confidence in the judiciary and the police.

The US has also frowned at the presidential pardon for Duminda. One may agree with it on this score, but the question is whether the US actually respects the Sri Lankan judiciary and its decisions? If so, will it explain why it sought to save Prabhakaran, whom the Colombo High Court had tried in absentia and sentenced to jail for masterminding the 1996 Central Bank bombing, which killed 91 people and maimed dozens of others besides causing a huge economic loss to the state? The US, as one of the self-appointed Co-Chairs of Sri Lanka’s peace process, pressured the Sri Lankan governments to negotiate with Prabhakaran, who was responsible for heinous crimes, and share state power with him.

Meanwhile, the BASL, which has rightly called upon politicians to respect the judiciary and judicial decisions, also, owes an explanation to the public in respect of some very serious matters. Why didn’t it take up the cudgels for the judiciary when the judges of the Colombo High Court came under threats after delivering the judgment in the White Flag case in 2011? A bunch of BASL members abused the judges including a female in raw filth, smashed up court furniture, and the police had to remove the judges to safety as the protesting lawyers and others threatened to harm them.

The BASL also chose to remain silent when Chief Justice Mohan Peiris was threatened by thugs following the 2015 regime change and subsequently ousted politically. True, the manner in which his predecessor, Dr. Shirani Bandaranayake, was removed from office, was deplorable, but she should have been reinstated with the help of Parliament, which had ‘impeached’ her. Instead, President Maithripala Sirisena, at the instance of some BASL officials, ‘vapourised’ CJ Peiris, who held office from 2013 to 2015. President Sirisena deemed that Dr. Bandaranayake had not ceased to be the CJ, and therefore the appointment of Peiris was null and void ab initio. If so, why was no action taken against Peiris, or the person—the then President Mahinda Rajapaksa—who appointed him? CJ Peiris signed documents, drew a salary, enjoyed perks of office and delivered judgments. Will the BASL provide an explanation?

The constitutional provision that enables the Executive President to pardon convicts will continue to be abused, and what needs to be done, we repeat, is to prune it down. Before the ongoing protests peter out, a campaign should be launched to achieve that end.