BASL reads riot act to President over granting full pardon to murder convict on death row

The Bar Association of Sri Lanka (BASL) has called for "transparency" in the decision-making process of a President to pardon a prisoner.

In a letter to President Maithripala Sirisena, signed by BASL President Kalinga Indatissa, it has raised concerns on the President’s decision last week to pardon Shramantha Jayamaha, a death row convict over the Royal Park gruesome murder.

Referring to Article 34 (1) of the constitution, the BASL states the President should call for a report from the judge who tried the case when an offender has been sentenced to death.

Full text of the letter: "The attention of the BASL has been drawn to a pardon by Your Excellency to one Jude Shramantha Jude Anthony Jayamaha, a convicted prisoner who was convicted for the murder of one Yvonne Jonsson on July 1, 2005.

Article 34(1) of the Constitution of the Democratic Socialist Republic of Sri Lanka authorises 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 in a case, in a case where the offender has been condemned to suffer 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.

Article 33 (A) of the Constitution introduced by the 19th Amendment to the Constitution, mandates the President to be responsible to Parliament for the due exercise, performance and discharge of his power’s duties and functions.

The BASL is mindful of the fact that in the recent past there had been a few instances where pardons have been granted without any material to justify the basis on which the respective prisoners were selected for granting of such pardon.

While appreciating the fact that the President has powers to grant pardon to a convicted prisoner under Article 34 of the Constitution, the Executive Committee for the BASL is of the view that such power should not be exercised arbitrarily or in a selective manner.

The BASL is not concerned about the individuals pardoned or the facts pertaining to the commission of the offence for which the accused has been pardoned. A conviction is made by a competent Court of Law in the course of judicial functions expected from such court. Hence any pardon to be granted under Article 34 of the Constitution should be made after a careful analysis of the necessity to grant such a pardon as stipulated in the proviso to Article 34 (1) of the Constitution.

While reiterating the fact that BASL is not concerned about the individuals concerned, we hold the view that there ought to be transparency in making a decision under Article 34(1). Such transparency should necessarily include the need and the necessity to grant such a pardon and whether the steps identified under the proviso to the Article 34(1) have been followed.

Any pardon granted under the Article 34 (1) without due regard to any of the above factors, would establish a bad precedent which would be adverse to the very concept of Rule of Law.

In the aforesaid circumstances, we would thank Your Excellency the President to convey the BASL:

(a) The basis on which Shramantha Jude Anthony Jayamaha was selected for the purpose of granting a pardon under Article 34 (1) of the Constitution;

(b) The circumstances which were taken into consideration in the granting of such pardon;

(c) The reasons as to why the case of Shramantha Jude Anthony Jayamaha stands out from others who are currently sentenced;

(d) Whether a report was called for from the Trial Judge as required by the Provisio to Article 34 (1)’

(e) Whether the advice of the Attorney General was called for, and

(f) Whether the recommendation of the Minister of Justice was called for prior to granting of the pardon to Shrmantha Jude Anthony Jayamaha.

The Bar Association of Sri Lanka maintains that if any one or more considerations stated above, were not satisfied in the current case, the pardon granted to Shramantha Anthony Jude Jayamaha would be unreasonable. We would be extremely grateful if this communication is responded to by Your Excellency on a priority basis."

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