Pardon on Poson; a Meritorious Act, at Cost of Rule of Law?

Poson is famous for “Abhayadana,” [Rescue from slaughter]. This year’s Poson became famous for an abhayadana of a different kind. President Gotabaya Rajapaksa chose the day for pardoning 93 inmates that included 16 LTTE cadres detained under the Prevention of Terrorism Act, [a judicious gesture] plus a very special case; former Colombo District UPFA MP Duminda Silva too, who was accused of the murder of MP Bharatha Lakshman Premachandra and four others on October 8, 2011. Ironically, Silva was the monitoring MP for the Defence Ministry, in Mahinda Rajapaksa government.

President has set a very bad precedent, and a huge issue concerning the rule of law in this country by not adhering to the procedures in granting this pardon. US Ambassador did not mince her words in her twitter response to the ‘deed’ in welcoming the “early release” of the prisoners held without charges under PTA, while condemning the pardon of Silva as “undermine of rule of law”.

 On March16, 1968, in a tactical operation into My Lai Village in Vietnam, around 100 US soldiers landed in helicopters; they fired at natives working in the fields. The killings started without caution. 80–90 villagers, women and children, were rounded up and led to an irrigation ditch, and then killed after repeated orders by Calley, who also fired shots. Dennis Konti, a prosecution witness told of one particularly gruesome incident during the shooting, “Women threw themselves on top of the children to protect them, and the children were alive at first. Then, the children who were old enough to walk got up and Calley began to shoot the children. The next day, by mid-morning, they had killed hundreds of civilians and raped or assaulted countless women and young girls above 10 years.”  26 American soldiers were charged with criminal offences and court marshaled. Lt. William Calley, the platoon leader was convicted. He was given a life sentence, but served just three and-a-half years under house arrest, before he was pardoned by President.

Trump pardoned four employees of an American private military company who killed civilians in Iraq and were found guilty by a US court in 2014. On September 8, 1974, President Gerald Ford pardoned former President Nixon for official misconduct which gave rise to the Watergate scandal, an act that could be argued as a gracious gesture, but it was in gross violation of justice that underscored implication of the power of presidential pardon. Jimmy Carter granted amnesty to draft dodgers  of Vietnam-era in 1977; George H. W. Bush pardoned 74 people, including six Reagan administration officials convicted in connection with the Iran–Contra affair. US Navy Chief Petty Officer Edward Gallagher was charged in September 2018 with murder, attempted murder, and other war crimes tied to his deployment to Mosul, Iraq. Gallagher was also accused by fellow Navy SEAL snipers of randomly shooting two Iraqi civilians, a schoolgirl and an elderly man. 

Duminda Silva and 12 others were tried before a special three-member panel of High Court judges. On September 8, 2016, court sentenced five including Silva to death, with the President of the court dissenting with the judgement. Later, it transpired in recorded conversations that a former MP, now in prison for contempt of Court, had conversed with one of the judges in the case to have Silva convicted. However, in Duminda Silva’s, appeal to the Supreme Court, the SC upheld the High court’s ruling on October 11, 2018. 

Bar Association of Sri Lanka (BASL) issued a statement too, regarding the pardon granted to Silva— referring to Article 34(1) of the Constitution which 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 says, BASL speaks on the “right of the public to know” pardon has been granted in accordance with the conditions, it adds that the BASL has written to ‘President requesting to make the public aware’, I quote: “…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”.

Statement continues, “…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.’

Gangster, Gonawela Sunil was abused by the powerful members of UNP government at that time. He was found guilty of raping a 14-year-old girl in 1982;  convicted, and was serving in prison when he was disgracefully given a presidential pardon by J.R. Jayewardene, on the alleged recommendation of Ranil Wickremesinghe, just before the 1982 presidential election. 

BASL should ‘make the public aware, they have a right to know’; what sort of ‘strong position’ the BASL took when JR Jayewardene’s autocratic rule pardoned the underworld criminal gang leader.  [It was Ainsley Clive de Zoysa PC, popularly known as AC ‘Bunty’ Zoysa, and a member of the WC of the UNP, who was the President of BASL then.  

He, in fact led the infamous prosecution at SPC Inquiry against Sirimavo Bandaranaike when his boss JR wanted his most powerful political adversary deprived of Civic Rights and eliminated from the political field.] 
Freed and honoured, “Gonawala Sunil executed plan to massacre 53 Tamil prisoners in 1983”. Deputy Prisons [Rtd], R N Jordan: Daily News- November 16, 1999.  

Religious Views

Cakkavatti-Sihanada Sutta takes up the issue of criminal justice and social justice.  People gathered opposite King Pasenadi’s castle, demanding that Angulimala be apprehended.  King visits the Buddha and explains his task. Buddha responds: “if you see Angulimala now a good bhikkhu, who does not kill, how would you treat him?” The king was surprised: the Buddha was able to discipline Angulimala without force or weapons. Christian view—a group of scribes and Pharisees confronts Jesus. They bring in a woman, accusing her of committing adultery, claiming she was caught in the very act. They remind Jesus that the punishment prescribed by Mosaic Law should be stoning to death, and when the woman’s accusers continue their confront , Jesus said, that the one who is without sin is the one who should cast the first stone at her. Jesus tells her to go and sin no more.

Royal Park murderer was pardoned by President Sirisena, honoring ‘pleas made by Maha sangha’. However, Abayadhana’s meritorious deeds, religious order and religious dignitaries need to be separated from governance like Statesman D S Senanayake distanced them in the past.
 ‘We should forgive criminals, but not before they are hanged.’ ― Joe Abercrombie

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