Murder of Bharatha Lakshman Premachandra Duminda back on death row No written decision to grant Presidential Pardon

Court says former president’s decision arbitrary

• The Supreme Court ruled that former President’s decision to grant a Presidential pardon to Duminda Silva is arbitrary and not valid in law.

By Lakmal Sooriyagoda   

In a landmark judgement pertaining to the scope of the presidential pardon granted by an executive President, the Supreme Court yesterday observed that former President Gotabaya Rajapaksa had not made any written decision and not given any reason when granting presidential pardon to Duminda Silva who was sentenced to death for committing the murder of four persons, including former Parliamentarian Bharatha Lakshman Premachandra in 2011. 

Taking into account three Fundamental Rights petitions filed challenging the legality of the Presidential Pardon granted by former President Gotabaya Rajapaksa, the Supreme Court ruled that former President’s decision to grant a Presidential pardon to Duminda Silva is arbitrary and not valid in law.  

Accordingly, the Supreme Court three-judge-bench comprising Justices Preethi Padman Surasena, Gamini Amarasekara and Arjuna Obeysekera ordered to set aside the Presidential pardon granted to Duminda Silva for not following the Constitutional provisions. In view of this judgment, the Supreme Court ordered the Commissioner General of Prisons to take necessary steps in terms of law with regard to the implementation of the sentences imposed on Duminda Silva.   

On September 8, 2016, five accused including former Defence Ministry Monitoring Parliamentarian Duminda Silva were sentenced to death by Colombo High Court for committing the murder of four persons, including former Parliamentarian Bharatha Lakshman Premachandra on or around October 8, 2011. Subsequently, Supreme Court five-judge-bench headed by then Chief Justice Priyasath Dep unanimously decided to dismiss appeal petitions filed by former MP Duminda Silva and two others who challenged the judgment of Colombo High Court that found them guilty for conspiring to murder four persons including former MP Bharatha Lakshman Premachandra.   

Former Parliamentarian Hirunika Premachandra, her mother Sumana Premachandra and former Commissioner of Human Rights Commission of Sri Lanka (HRCSL) Ghazali Hussain had filed three Fundamental Rights petitions challenging the legality of the presidential pardon granted to Duminda Silva.   

Delivering the judgment, Justice Surasena observed that there is no legal basis or even a factual basis to uphold the decision made by former President Gotabaya Rajapaksa to grant a pardon to respondent Duminda Silva. He further held 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 reason.   

The Supreme Court declared that the Fundamental Rights guaranteed to the petitioners by Article 12(1) of the Constitution (equal protection of the law) have been infringed by the act of granting the pardon to Duminda Silva. The Supreme Court further declared that the pardon granted to Duminda Silva by the former President is null and void and of no effect in law.   
“As set out in Article 33(h) of the Constitution, it has only empowered the President to do acts and things which would not be inconsistent with the provisions of the Constitution or written law. Thus, in this instance I hold that the former President has clearly violated the provisions in Section 3 (q) of the Assistance to and Protection of Victims of Crime and Witnesses Act No. 04 of 2015.I have to accept the Petitioners argument that the instant grant of pardon to the recipient of the pardon, by the former President of the Country, has totally eroded the confidence the public has reposed in the criminal justice system of the country,” Justice Surasena observed.   

M.A. Sumanthiran PC with Suren Fernando appeared for former Parliamentarian Hirunika Premachandra. Eraj de Silva PC with Daminda Wijeratne, Janagan Sundramoorthi, Shehan Chamika Silva instructed by Dimuthu Kuruppuarachchi appeared for Sumana Premachandra. 

Jeffry Alagaratnam PC appeared for Attorney-at-Law Ghazali Hussain.   

Gamini Marapana PC, Navin Marapana PC, Manohara de Silva PC and Anuja Premaratna PC appeared for Duminda Silva. Dr. K. Kanag-Isvaran PC appeared for the Bar Association of Sri Lanka. Additional Solicitor General Nerin Pulle appeared for the Attorney General.