The Supreme Court has ruled that the presidential pardon granted to Ven. Galagoda Aththe Gnanasara Thero by former President Maithripala Sirisena in 2019 was arbitrary and unlawful, declaring the pardon null and void.
The unanimous judgment was delivered on Thursday by a three-judge bench comprising Justices Janak De Silva, Dr. Sobhitha Rajakaruna and Sampath B. Abayakoon.
The Court held that although Article 34 of the Constitution grants the President the power to pardon convicted persons, that power is held in trust for the people and must be exercised within constitutional limits and subject to judicial review.
Court questions how pardon was granted
A central issue before the Court was the manner in which the decision to pardon Gnanasara Thero had been reached.
The Court examined a minute prepared by the Additional Secretary (Legal), which recommended that the Thero be granted a full pardon.
Justice Janak De Silva observed that while the minute addressed legal matters concerning the pardon, it did not explain why the former President should have considered granting a pardon to Gnanasara Thero in the first place.
Despite this, Sirisena had approved the recommendation, the judgment noted.
The Court also considered whether the former President had examined all relevant material and representations before making his decision, including representations opposing the pardon.
The judges questioned what had led to the “flurry of activity” surrounding the granting of the pardon and noted that Sirisena had been given an opportunity to address these matters in his affidavit after the relevant Presidential Secretariat files were submitted to court.
However, the former President had failed to provide such clarification.
The Court consequently concluded that Sirisena had effectively acted on the recommendation of the Additional Secretary (Legal), rather than independently exercising the constitutional discretion entrusted to him.
Justice De Silva held that the pardon was arbitrary, violated public trust and the principles of natural justice, and was ultra vires the President’s powers.
The Court further determined that the decision violated the fundamental right to equality guaranteed under Article 12(1) of the Constitution.
What happens to Gnanasara Thero?
The judgment also clarified the legal effect of a presidential pardon.
The Supreme Court held that a pardon does not erase or overturn a conviction or sentence imposed by a competent court. Instead, it relieves the convicted person from the execution of the sentence to the extent provided by the pardon.
With the 2019 pardon now declared null and void, Gnanasara Thero no longer benefits from that pardon. His original conviction and sentence therefore remain legally valid.
However, the Supreme Court did not order his immediate arrest or return to prison, nor did it determine how much of his original sentence remains to be served.
Any action regarding his custody or the enforcement of the sentence will therefore have to be considered by the relevant authorities, including the Prison authorities, in light of the Supreme Court ruling.
Another pardon remains possible
The Supreme Court also made clear that its decision does not prevent a future President from granting Gnanasara Thero another pardon.
However, any fresh pardon would have to be granted in accordance with the Constitution and the law, following proper consideration of all relevant material and representations.
The Court meanwhile declined to make further orders against former President Maithripala Sirisena, noting that the record indicated that he had acted on instructions provided by the Additional Secretary (Legal), which the Court found to contain material errors of law.
Background
The case arose from Gnanasara Thero’s conviction for contempt of court following his conduct at the Homagama Magistrate’s Court in January 2016.
The Court of Appeal convicted him on four counts and imposed prison terms of four, four, six and five years respectively, with the sentences to run concurrently.
He had served approximately nine months of his sentence when he was granted a presidential pardon by Sirisena in May 2019.
The pardon was subsequently challenged before the Supreme Court in fundamental rights petitions filed by the Centre for Policy Alternatives (CPA) and its Executive Director Dr. Paikiasothy Saravanamuttu, and separately by Sandhya Ekneligoda, the wife of missing journalist Prageeth Ekneligoda.
