BBS bhikkhu: To pardon or not to pardon? | Sunday Observer

BBS bhikkhu: To pardon or not to pardon?

Calls are mounting for controversial Bodu Bala Sena General Secretary Galagodaaththe Gnansara Thera to be granted a presidential pardon ahead of independence day.

The requests have come largely from religious quarters, with all four chief prelates of the four Buddhist monastic orders writing separate letters to President Maithripala Sirisena, urging him to pardon the trouble-making bhikkhu who has been at the forefront of inciting intimidation and violence against ethnic minority communities.

SLFP strongman Duminda Dissanayake, a close confidant of the President, told the media last week that there was a possibility that the bhikkhu would receive a pardon.

Under Article 34 of the Constitution, the President has the power to grant pardon to convicted offenders. In the recent past, S.B. Dissanayake, who was convicted and sentenced to RI for contempt of court, the same offence the BBS bhikkhu has been jailed for, and journalist J.S. Tissanayagam who was convicted under the Prevention of Terrorism Act were among those who obtained their freedom from court imposed jail sentences through Presidential pardons.

Late last week, UNP MP and Minister for Buddha Sasana Gamini Jayawickrema Perera wrote to President Sirisena, drawing his attention to the multiple requests from senior bhikkhus about a pardon for Gnanasara Thero. In this letter, he stated that all Maha Nayakas of the three chapters, Diyawadana Nilame Pradeep Nilanga Dela and President of the Hindu Congress Nara T. Arukkanth had separately requested the release of Gnanasara thera in writing.

“ The Sangha Sabhawa met me about three weeks ago. We discussed the matter. But I do not clearly remember whether I signed a letter or not. But I told them that as this is a case in the courts, we cannot influence it too much” Asgiriya Mayanayaka Warakagoda Sri Gnanarathana thera told the Sunday Observer.

Another Mahanayake Thera speaking on the basis of anonymity told the Sunday Observer that all Mahanayakes have not presented a collective letter as it could lead to a legal issue.

“I and another Mahanayake Thera have handed over personal letters to the President requesting the release of Gnanasara thera. We don’t know whether such a pardon can be given or not on the legal background. Also, these are political issues” he said.

Speculation over the controversial bhikkhu’s release has caused serious consternation in legal and civil society circles, since the bhikkhu is currently serving a jail term for misconduct and intimidation within a courtroom.

Speaking to the Sunday Observer, a Magistrate who did not wish to be named said the probable release of Gnanasara thera could be a violation of the concept of separation of power. “Citizens of the country have given judiciary, Executive and legislature powers to different institutions to operate them in an independent manner. This is a contempt of court conviction. What is at stake is the dignity of the judiciary. A pardon in this instance will lead others to believe that with political clout, they can toy with the judiciary,” the Magistrate said.

Displaying the disgust of the judiciary towards a possible Presidential pardon, a senior lawyer who was a party to the case, told the Sunday Observer that such a step would discourage public officers from performing their duties according to the law.

“In this matter at the appeal to the Supreme Court, they didn’t even allow leave to proceed. The conviction was affirmed. A person barged into the court house and abused everyone, then how can a public officer perform his duties in a free and fair manner? That will encourage other people to do the same thing” the lawyer said.

“We watched as this bhikkhu harassed and intimidated others, thinking it will not happen to us” said Senior State Counsel Janaka Bandara, when he made impassioned submissions before the Homagama Magistrate’s court in June 2018, when notorious Bodu Bala Sena General Secretary Galagodaththe Gnansara Thera was on trial for criminal intimidation.

The SSC quoted Martin Niemöller’s famous poem, ‘And then they came for me’ as he appealed to the judge not to allow the controversial bhikkhu’s intimidation of victims and court officials in the Homagama Magistrate’s Court in 2016 to go unpunished.

That day, the bhikkhu was sentenced to two jail terms of six months each, to be served concurrently, after the Magistrate convicted him of criminally intimidating a victim in the same courtroom two years previously. The victim – Sandya Ekneligoda – is the wife of missing journalist Prageeth Ekneligoda who disappeared without a trace on January 24, 2010.

Stemming from that case was the Court of Appeal contempt of court action against the BBS bhikkhu, based on a complaint made by former Homagama Magistrate, Ranga Dissanayake.

On January 25, 2016, the controversial Bodu Bala Sena General Secretary stormed into the Homagama Magistrate’s Court while the inquiry into Prageeth’s disappearance was under way, demanding to be allowed to intervene in the inquiry. The Magistrate, taken aback by the outburst, declined the request, since he said the bhikkhu was not a party to the disappearance case. Gnanasara Thera then lashed out at Government lawyers, court officials and police officials investigating the Ekneligoda case.

He called them napunsakayas (eunuchs), traitors and reminded the officers of the court including lawyers from the AG’s Department and the court stenographers that Sri Lanka had been at war. Prageeth, the missing journalist, Ven. Gnanasara Thera claimed, had been an LTTE spy. Then, almost at the door to the courtroom, the venerable bhikkhu leaned close to Sandhya Ekneligoda’s ear to whisper foul-mouthed threats, before flinging his robes about and storming out of the courtroom.

Magistrate Dissanayake, a firebrand judge who now serves as Colombo Fort Magistrate complained to the Court of Appeal through the Attorney General about what had transpired in his courtroom.

The former Homagama Magistrate also testified against the bhikkhu in the criminal intimidation case in which Gnanasara Thera was first convicted.

In August 2018, the Court of Appeal sentenced controversial bhikkhu to 19 years’ rigorous imprisonment for contempt of court over his conduct at the Homagama Magistrate’s Court in 2016; four sentences to be served concurrently, for a total of six years. The ruling marked the first time in Sri Lanka’s legal history that a Buddhist bhikkhu was convicted and imprisoned on contempt of court charges.

Hailing from a very nationalistic society made by a heavy hierarchical order, a large number of Sri Lankans are in a position of unquestioning activities and behaviour of religious leaders. This has led to a thinking pattern or a belief that such religious leaders are above the law.

In contrast, this was not the only incident of Ven. Gnanasara thera of being accused in courts. There are a few cases against him, including wrongfully entering the Southern expressway and disturbing the Police duty officers and damaging public property; defaming the Al-Quran and storming a church at Talahena.

For years, Ven. Galagodaatte Gnanasara thera has been driving anti-Muslim sentiment and fear mongering about ethnic minority communities. In June 2014, after a fiery rally by the BBS in Aluthgama, at which the imprisoned bhikkhu threatened the Muslim community living nearby, mobs attacked Muslim homes and businesses, leaving Dharga Town, the main Muslim settlement in the area in ruins. Ven. Gnanasara Thera is under investigation over several other cases, including damage to public property, intimidating police officers, defaming the Quran and the attack on a church in Talhena.

Pardon now subject to judicial review: Weliamuna

The President’s power to pardon convicted prisoners is subject to judicial review after the passage of the 19th Amendment, President’s Counsel J.C. Weliamuna told the Sunday Observer.

“Pre 19th Amendment, the President’s prerogative powers were not liable to be directly challenged in court. But Article 35 of the constitution has been changed and according to the constitution as amended by 19A, only the President’s power to declare war and peace cannot be legally challenged through a fundamental rights application,” Weliamuna clarified.

The senior lawyer explained that there were no clear guidelines as to how a pardon could be effected. “It doesn’t mean that pardons can be arbitrarily given to individuals for political gain, not after the 19th Amendment was enacted,” he said.

Weliamuna PC said the controversial bhikkhu in question has a chequered criminal history and is well known to be a violent character. “He has been previously convicted for drunken driving and there are several cases pending against him with the Attorney General’s Department. Even if the release of a person following conviction is to be considered, the state machinery must take into account the person’s past conduct and the danger he poses to society – there is no indication in this case that he has been reformed in prison,” the senior lawyer asserted.

The bhikkhu has been jailed for contempt, Weliamuna said, so pardoning him in this case is not a religious matter. “The charge is contempt and given the gravity of the circumstances, releasing him would be a slap in the face of the judiciary. There will be consequences. We must respect the constitution, not individuals,” he added.