Questions of due process in presidential pardon | Sunday Observer

Questions of due process in presidential pardon

Yvonne Jonsson

The second pardoning by President Maithripala Sirisena just days before leaving office came under heavy criticism and is now being legally challenged before the Supreme Court, where a petition was filed questioning the validity of the pardoning.

The infamous ‘Royal Park Murder’ that took place back in 2005 occurred in the luxury apartment complex in Rajagiriya, at a time when luxury apartments were not in abundance.

A 19 year old girl at that time, Yvonne Jonsson was brutally beaten, strangled and killed. Her body was found on July 1, 2005 in the stairway of the apartment four floors below where she lived.

A junior prosecutor who was involved in the case said that it was very difficult to look at those pictures despite having had to look at pictures of murdered victims often. These were particularly gruesome.

“The images were haunting me for several days,” he said.

The murder case that was initially heard before the High Court was special for several reasons. Prosecutors had no eye witnesses of the incident, hence it was based on expert evidence and circumstantial evidence.

Investigators did not find any marks of struggling or any nail marks on Shramantha Jayamaha, the accused. However, his bloody fingerprints were found near the body and the handrail of the staircase.

When her evidence was called, Professor Maya Gunasekara at Genetech, who was suffering from cancer at the time, came to court on a stretcher and explained the importance of DNA evidence in investigations of crimes.

He was initially found guilty for culpable homicide and was sentenced to 12 years of rigorous imprisonment and a fine of Rs. 300,000.

The Attorney General appealed on the decision by the High Court to the Court of Appeal whereby it was asked to review the conviction and thereby the punishment. This marked the first time in Sri Lankan history where the Attorney General had appealed seeking to upgrade a punishment.

After considering the matter before them, the Court of Appeal bench decided that the accused was guilty of murder and not culpable homicide. The accused then appealed to the Supreme Court where it was established that the Attorney General did in fact have the power to appeal a decision seeking to upgrade a conviction and the accused’s appeal was dismissed in October 2013 by the Supreme Court.

After spending 13 years and 10 months in prison, Shramantha Jayama was released on November 11, 2019, after he was given a presidential pardoning, an action that has been widely criticized.

During his term as president, Maithripala Sirisena pardoned two convicts. This year, in May, Bodu Bala Sena Secretary Ven. Galagoda Aththe Gnanasara Thera, who was convicted of contempt of court by the Court of Appeal, was pardoned. This was seen by many as overriding the judicial decision as he only spent a few months in jail out of a 19 year prison term that was to be concluded in six years.

Soon after being released, a fresh case was filed before the Court of Appeal against him, alleging him of contempt of court again.

According to prison officials, papers of Shramantha Jayamaha’s pardoning were sent in a rush. Prior to the pardoning, several personalities, including Athuraliya Rathana Thera, had visited prison officials, Sunday Observer reliably learns.

“When [Jayamaha] came in first, he was a heavy substance user. Prison officials used to say that he was a high consumer of drugs. If he was not given the drugs, he would get very violent. Although, at the outset, certain family members had taken steps to bring in the drugs for him, they couldn’t continue to do so. Due to nonavailability, he managed to get out of the habit,” the prison official said.

President’s Counsel Saliya Peiris reacted to the pardoning via his social media account, questioning the precedent that would be set by the action of the executive.

“Among thousands of convicts on death row, it would be interesting to know how the Royal Park convict was chosen for a Presidential Pardon. This is not the routine pardon where, after decades in prison, prisoners are released. This is a very special pardon. It is still less than 10 years since his murder conviction. There are other prisoners convicted for lesser offences languishing in jail for years without release who have good grounds to be treated with mercy. What sort of message does this pardon give to society?” he wrote.

Speaking to Sunday Observer, prison officials said that they have identified many who have spent a majority of their time in prison and, due to their conduct and other reasons, should be considered for pardoning.

Issuing a statement, the presidential secretariat gave reasons for the pardoning and said that Ven. Athuraliye Rathana Thera intervened and organised a meeting between the President and members of the family. Requests were also made by multiple members of the clergy, including a Catholic Bishop and also some members of the Bar.

The said Catholic Bishop later issued a statement and refuted the claim that he had made any representations for Jayamaha’s pardoning.

According to sources, no specific report had been called from the prisons. “There is a set form that needs to be issued by the prisons and that is all that we did. No separate report was called from the prisons,” he said.

Saliya Peiris PC also pointed out that in the statement it is claimed that the offence was committed under sudden provocation. This was rejected by the Court of Appeal.

“That defence was not taken up in court. The court held that the killing was done in a cruel and unusual manner. The accused went through the entire trial and did not seek to enter a plea,” he said.

Although there is no written down procedure that needs to be followed, there are precedents. Different presidents have adopted different methodology in pardoning convicts.

“Today, in some other countries, pardons are regulated and the heads of state confer pardons only on the recommendations of experts. There are, in those countries, criteria for granting pardons. On a matter of principle, similar to its other interventions, the Bar Association must intervene in this matter as it seriously undermines the Rule of Law,” Peiris said.

The only act that even speaks of pardoning is the Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, where it states that, in the event that any authority is considering pardoning or a remission of a sentence it should call for “the manner in which the offence committed had impacted on his life including his body, state of mind, employment, profession or occupation, income, quality of life, property and any other aspects concerning his life”, which in this case would be the immediate family.

According to legal experts, noncompliance with this act by itself would make such a decision to pardon a violation of article 12 of the constitution, as it protects compliance with the rule of law.

In a letter addressed to President Maithripala Sirisena, Kalinga Indatissa PC, President of the Bar Association of Sri Lanka, raised questions regarding the pardon. Indatissa asked for the basis on which Jayamaha was selected for granting a pardon under Article 34 (1) of the Constitution, the circumstances taken into consideration in the granting of the pardon, the reasons as to why Jayamaha’s case stands out from others currently sentenced, whether a report was called for from the Trial Judge as required by the Proviso to Article 34 (1), whether the advise of the Attorney General was called for, and whether the recommendation of the Minister of Justice was called for prior to granting the pardon. Indatissa said that if any of the above considerations were not satisfied, the pardon would be unreasonable.

After Jayamaha was freed, he wrote a public letter of apology, asking for a second chance.

The question that remains is whether due process was adopted and the pardoning was done in a transparent matter.

“I fully believe in the power of redemption and mercy. I also believe that deserving prisoners must be given a second chance. I am also against imprisoning people needlessly and as a matter of routine. I totally oppose the death sentence. However this does not mean that mercy should be shown selectively. If the executive wants to show mercy, let all those serving time in prisons have a fair chance of seeking mercy. Let the victim’s voice, too, be heard,” Peiris said.