The Bounds Of Clementia’s Bonds: The SC’s Interim Order & The Presidential Pardon Of Duminda Silva

By Ruwan Laknath Jayakody –JUNE 7, 2022

Ruwan Jayakody

In Danish director Nicolas Winding Refn’s ‘Bronson’, the filmic Bildungsroman about Michael Gordon Peterson aka Charles Bronson, dubbed by the British press as England’s most notorious and violent prisoner, actor Tom Hardy, playing the titular character in a vignette that the inmate in question describes as “what happens when murder goes wrong”, takes umbrage when he is informed by a nurse in connection with is query on “I just wanna know when my trial is and when I head back to the slammer (prison)” that “There is (to be) no trial” as the victim recovered, and that therefore, he is to be denied the creature comforts of prison (“I deserve to go to prison for what I did. I want my hotel room back.”), and instead moved to an asylum for the criminally insane. What a reversal of fortune.

In a Sri Lanka that is coming undone thanks to Executive dysfunction, a similar change of fate awaited the purported, one-time, local Pablo Escobar wannabe narco.

Up until early last week, former death row beefcake and Member of Parliament and incumbent Chairman of the National Housing Development Authority, Duminda Silva too was enjoying a life of liberty, and according to the rumour mills, nuptial bliss. That a murder convict, such as the likes of Silva, was living large in the first place, was entirely thanks to a, on all counts (legal, ethical, etc.) premature, pardon afforded to him by President Gotabaya Rajapaksa.

However, last week’s rude awakening came at the hands of the Supreme Court (SC), which had previously unanimously upheld a flawed conviction (flawed not because the Trial-at-Bar that sentenced Silva et al. to death was split Two-One, but because one of the High Court Trial Judges in the majority, Padmini Ranawaka was implicated in the Ranjan-gate scandal where she is alleged to have curried favour with the political authorities at the time by giving biased judgments in cases – with her being recorded in conversation with the then Deputy Minister and since imprisoned for contempt of court MP Ranjan Ramanayake via phone, specifically mentioning Silva’s sentencing as one given per the wishes of the then political masters, and thereby seeking an elevation, pre-retirement, to the Court of Appeal), and which last week issued, in a hitherto unprecedented move – as far as the annals of the country’s legal history are concerned – an interim order, suspending the operation of the pardon thus granted by the Executive President to Silva.

This interim order came in response to the reliefs prayed for by several petitioners including the deceased former MP Bharatha Lakshman Premachandra’s widow and daughter (former MP Hirunika Premachandra) and an attorney cum former Human Rights Commissioner, who had invoked the Court’s Fundamental Rights (FR) jurisdiction, challenging the grant of the said pardon, and for which petitions, leave to proceed was granted.

Silva who was subsequently arrested by the Criminal Investigation Department as per the Court order, has since been handed over to the custody of the Prisons Department, and for all intents and purposes, is likely to be restored to his pre-pardon, lot in life status quo of death row (note that his sentence was never commuted to life imprisonment by a panel), at least until such time the Court concludes the hearing of the matter.

It is simply too bad for Silva that the killer instinct possessed by a previous such pardonee over the Royal Park murder case – the latter death row convict who fled the country upon the receipt of the pardon from President Rajapaksa’s immediate predecessor, despite the pardon being similarly challenged – could not be converted, in Silva’s case, to the exercise of that most elemental survival instinct – flight.

Regardless of whether Silva is a victim of political vengeance and judicial corruption à la Ranawaka, for Silva’s part, it is worth noting the famous dicta of the United States (US) SC in George Burdick v. US which held that a pardon “carries an imputation of guilt; (the) acceptance, a confession of it”.

That said, given that all this legal hullabaloo is apt to make anyone take ill, Silva had, on the morn of the delivery of the said interim order, admitted himself to a hospital’s neurological ward, reportedly for treatment for seizures.

But where does this judicial precedent, if one may term it such, leave the status quo as far as the law governing the grant of pardons is concerned.

Writing for the majority in the Connecticut Board of Pardons v. Dumschat, Chief Justice (CJ) of the US SC, Warren Earl Burger noted that Presidential pardons “have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review.” Enter then, “the rarest of the rare”, courtesy the Indian SC.

The Indian SC while recognizing the power for the judicial review of decisions made by the President while exercising his/her pardoning power in a limited class of instances, in G. Krishta Goud and Another v. State of Andhra Pradesh and Others stated that it would not turn a blind eye to public power being exercised in an arbitrary or mala fide manner, including instances where the President exercises his/her power in a discriminatory manner. In Maru Ram v. Union of India with Justice V.R. Krishna Iyer writing for the majority including CJ D.Y. Chandrachud and Justice P.N. Bhagwati, it was held that “Pardon, using this expression in the amplest connotation, ordains fair exercise. Political vendetta or party favouritism cannot but be interlopers in this area. The order which is the product of extraneous or mala fide factors will vitiate the exercise. For example, if the Chief Minister of a State releases everyone in the prisons in his/her State on his/her birthday or because a son has been born to him/her, it will be an outrage on the Constitution to let such madness survive” while Justice S.M. Fazl Ali concurring in the same case, added: “Doubtless, the President and the State Governments have absolute and unfettered powers to grant pardon, reprieves, remissions, etc. This power can neither be altered, modified, nor interfered with by any statutory provision. But the fact remains that (the) higher the power, the more cautious would be its exercise. It is therefore manifest that while exercising the powers under the said Articles of the Constitution, neither the President, who acts on the advice of the Council of Ministers, nor a State Government is likely to overlook the object, spirit and philosophy (of the relevant legal provisions) so as to create a conflict between the legislative intent and the Executive power. It cannot be doubted as a proposition of law that where a power is vested in a very high authority, it must be presumed that the said authority would act properly and carefully after an objective consideration of all the aspects of the matter.” Making their case further, in Epuru Sudhakar and Another v. Government of Andhra Pradesh and Others, the Indian SC held that “Clemency is subject to judicial review and it cannot be dispensed as a privilege or act of grace” and thereby quashed the decision of a State Governor to commute the sentence of a convicted Congress activist.

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