Calling into question President Maithripala Sirisena’s decision to pardon Bodu Bala Sena General Secretary Galagodaatte Gnanasara Thero, the legal fraternity has cautioned against what it called arbitrary exercise of the presidential power to pardon.
Issuing a statement to the media earlier this week, the Bar Association of Sri Lanka (BASL) said the constitutional power given to the President to grant pardons should not be based on irrelevant considerations.
“Even though such power is unquestionable, the exercise of such power should take place based on sound legal principles and reasoning,” it said.
Any departure from these considerations, the BASL said, would shake the very foundations of the Rule of Law and would shock the conscience of those who value an independent Judiciary.
Gnanasara Thero was serving a sentence by the Court of Appeal for Contempt of Court committed in the presence of the Homagama Magistrate when he was pardoned by Sirisena last week. Noting that the Court of Appeal exercises jurisdiction in respect of Contempt of Court in terms of Article 105 (1) of the Constitution, the BASL said contempt laws exist to ensure the independence of the judiciary.
“Laws of contempt exist to protect the judiciary from unwarranted interference with its authority and to protect the judiciary from attacks against its independence and authority,” it said.
“The judiciary in Sri Lanka is studded with an illustrious history, dating back to 1801 when the Supreme Court of Sri Lanka was established during the British rule. It has survived over two centuries due to the dignity and the respect it has commanded and the confidence the public has had in it,” it added.
Recalling that presidents past have also exercised the pardon in a similar manner, the BASL said: “We hold the view that such an exercise of power is detrimental to the rule of law and the independence of the judiciary.”
“The BASL is gravely concerned of this power being exercised in such a manner in all the above instances. We hold the view that the power of pardon granted under the constitution should not be exercised in an arbitrary and a capricious manner, without consulting the vital stakeholders, namely, the Court which imposed the sentence and the honorable Attorney General.
“Being mindful of the fact that there are no guidelines for the exercise of such power, the BASL is of the strong view that the consultative process referred to above would ensure that such a power should be reasonably exercised without leaving any room for loss of public confidence and for undermining the independence of the judiciary,” it said.