The Duminda Silva Pardon
By Nihal Jayawickrama –
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 fifteen days. On 10th October 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 Gotabaya Rajapaksa, 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:
(a) On 16 December 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.
(b) On 19 October 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.
(c) On 4 May 2021, High Court Judge Morais reported that he did not recommend a pardon to be considered.
(d) On 11 May 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.
(e) On 21 June 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.
(f) 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 24 June 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 6th December 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:
(a) 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.
(b) 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 22 May 1977, the fifth anniversary of the Republic, President Gopallawa commuted the sentences of everyone on death row to life imprisonment: 144 men and 3 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.
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