Presidential pardons and Courts of Justice - EDITORIAL

‘Presidential pardons’ are once again in the news. Earlier this month the Supreme Court of the country overturned the presidential pardon on a particular former Member 
of Parliament. The verdict was ground breaking. The Courts had stood up to an executive fiat of an incumbent president and ordered the arrest of a person pardoned by him.

In our country ‘Presidential Pardons’ are a regular feature. On special days marking events such as Vesak Poya Day, Independence Day, and Christmas Day our presidents have invariably seen it fit to pardon prisoners -usually those convicted of minor offences.
The right to grant presidential pardons is conferred on the president through a clause in the Constitution of the country. However the Constitution does add a caveat to presidential pardons. 

This sadly is not the first occassion president ‘s have pardoned convicted murderers. On an earler occassion in 2020, the president granted a pardon to a former Lance Corporal, a prisoner on death row for the brutal murder of eight persons including three children. 
In a cases where death sentence is imposed, the president is required by the Constitution to call for a report of the Judge who tried the case, forward that report to the Attorney General for his advice, which in turn will then be handed over to the Minister iof Justice, who will in turn make recommendations to the president. However the clause does not extend to when other serious crimes are committed.

While no one questions the right of a president to use his/her constitutional right to pardon wrongdoers, what is at stake is whether a president has folowed Constitutional procedure or misusing constitutional priviledge.Unfortunately this has not been the first instance where presidents of this country have overruled decisions made by the Supreme Court on frivolous grounds. 

Even worse, a past president even granted a pardon to an individual convicted of Contempt of Court publicly. Subsequently the individual was appointed to head the Presidential Task Force to make a study of the implementation of the concept; ‘One Country, One Law within Sri Lanka’ and prepare a draft Act for the said purpose!!!
Sadly, this is not the first time presidential pardons have been granted to criminals who deserved serving the long sentences which Courts had imposed on them. The first Executive President of the country set the trend, when he he pardoned a notorious criminal covicted of rape. 

The individual had close links to the political party the then president headed. Subsequently an individual named Manohari Daniels - convicted of aiding and abetting the Maradana suicide bomber who killed 40 persons was given a presidential pardon as a gesture of ‘goodwill’ to the terrorist organisation, the Liberation Tigers of Tamil Eelam (LTTE) - in a failed bid to ensure peace talks with that organisation would suceed. 
Again, ten former members of the Presidential Security Division (PSD) who were found guilty of attacking two famous singers (sentenced to over four years in prison) who sang at an opposition-organised event were released on a presidential amnesty by the then president.

On another occassion a president voted into power on a ticket of curbing presidential powers and ushering in good governance; days before he completed his term of office freed a criminal found guilty of murdering a young woman of Swedish-Lankan descent. It is apparent our presidents have come believing that they are free to treat the country and people as their personal fiefdom under powers they derive from the Constitution and power of pardon. To avoid this pitfall, in the United Kingdom for instance, courts have the jurisdiction to review the exercise of the Royal Prerogative of Mercy by the monarch (on advice of the justice secretary) ‘in accord with accepted public law principles’. Thus, in Britain, as pointed out by the Sri Lanka Guardian, the power to grant amnesty does not go unchecked.

In India, the Indian Supreme Court has held it has jurisdiction to judicially review the power of the president to pardon individuals. In our country, on occassion presidents have used devious means to circumvent constitutional requirements, such as refusing to convene the Consisitutional Council which limits a president’s powers to make direct appointments to the Courts and Independent Commissions.
The ongoing protest movement undoubtedly helped litigents challenge the presidential power of pardon. It is essential people be vigilant to ensure powers granted by the constitution are not misused by the executive - whether it be president of prime minister.