Connect with us

Features

THE DUMINDA SILVA PARDON

Published

on

Former MP Duminda Silva accompaied by prison officers (File Photo)

by Dr Nihal Jayawickrama

The Attorney-General had indicted 13 persons on 17 counts including murder following the death of one Bharatha Lakshman Premachandra in 2012. In September 2016, in the High Court of Colombo, at the conclusion of a Trial-at-Bar before three Judges, in a majority judgment, five accused were convicted of several offences including murder, and were sentenced to death on the charge of murder, and to life imprisonment and varying periods of imprisonment and fines on the other charges. Eight were acquitted.

Except for one convict who had been tried in absentia, the other four appealed against their convictions and sentences. A Bench of five Judges of the Supreme Court, headed by Chief Justice Priyasath Dep, heard arguments for 15 days. On October 10, 2018, in a 51-page judgment, the Supreme Court affirmed the convictions and sentences and dismissed the appeals.

Among the five who had been convicted was the 11th Accused, Arumadura Lawrence Romelo Duminda Silva. He was a former Member of Parliament who had previously served as the Monitoring Member of the Ministry of Defence, appointed to that position by the then Minister of Defence President Mahinda Rajapaksa. The Secretary of Defence at the time was Gotabaya Rajapaksa who was later elected President of the Republic in November 2019.

President’s power of pardon

In or about May 2021 President Gotabaya appears to have pardoned Duminda Silva in the purported exercise of his powers as President of the Republic. Under Article 34 of the Constitution, the President may grant a pardon to any offender convicted of any offence in any court in Sri Lanka. However, if that offender had been sentenced to death, the President is required to cause a report to be made to him by the Judge who tried the case. He is then required to forward that report to the Attorney-General with instructions that after the Attorney-General has advised thereon, both reports should be sent to the Minister of Justice who is required to forward both reports, with his own recommendation, to the President.

Challenge in the Supreme Court

Shortly thereafter, the daughter and the wife of the deceased Premachandra petitioned the Supreme Court alleging that the pardon violated their fundamental right to equality before the law and the equal protection of the law. Several senior counsel representing the interested parties, including former President Gotabhaya Rajapakse, made submissions before a bench of three judges of the Supreme Court: Justices Padman Surasena, E.A.G.R.Amaraskera, and Arjuna Obeyesekere.

Sequence of events

During the proceedings in the Supreme Court, it transpired that:

· On December 16, 2019, barely a month after Gotabaya Rajapaksa had assumed the office of President, Mrs Romain Malkanthi Silva had written to him stating that her son’s medical condition required him to be out of prison.

· On October 19, 2020, following the general election held two months earlier, 117 Members of Parliament, by letter addressed to President Gotabaya Rajapaksa, requested the grant of a pardon to Duminda Silva.

·On May 4, 2021, High Court Judge Morais reported that he did not recommend a pardon to be considered.

· On May 11, 2021, High Court Judge Padmini Gunatilake reported that “Duminda Silva was lawfully convicted and sentenced to death”, and that she cannot recommend that he be pardoned.

· On June 21, 2021, the Attorney-General, by letter addressed to the Minister of Justice, informed him that Duminda Silva had been convicted of four counts of murder, one count of attempted murder, and two counts of criminal intimidation. He had been sentenced to death in respect of each count of murder, and to a term of 20 years rigorous imprisonment on the count of attempted murder. He noted that the convictions and sentences had been upheld by a five-judge bench of the Supreme Court. Accordingly, he advised that any exercise of the President’s power of pardon “should be capable of withstanding the test of rationality, reasonableness, intelligible and objective criteria”. He stressed that under the law it was not open to the President to make a subjective decision to grant a pardon. “A pardon is not a private act of grace from an individual happening to possess power”, he added.

· In forwarding the above reports to the President, the Minister of Justice refrained from making any recommendation, concluding his letter by merely stating “It is a matter for Your Excellency to exercise the discretion vested with Your Excellency under Article 34 of the Constitution”.

No documentation available

Neither the Attorney-General, nor Counsel appearing for the former President, was able to produce any document or file that contained the President’s order granting a pardon. Nor were they able to produce a file that contained even a minute made by the President explaining the reason why the pardon was being given. The only document produced by the Attorney-General to explain the President’s decision was a letter written by the Secretary to the President to the President of the Bar Association in reply to the latter’s letter dated June 24, 2021. That letter contained the following paragraph:

I am instructed by His Excellency the President to inform you that due process as per Article 34(1) of the Constitution of the Democratic Socialist Republic of Sri Lanka has been followed in granting pardon to Mr. Duminda Silva. Accordingly, reports from the Trial Judges, recommendations from Hon. Attorney-General and the Minister of Justice were called prior to granting of the pardon to Mr. Duminda Silva. Mr. Silva’s pardon was given due consideration following the appeal made by his mother Mrs. Romain Malkanthi Silva on December 6, 2019.

The Supreme Court noted that the record pertaining to the impugned pardon, including a copy of a gazette, proclamation or any other document containing the decision for and/or grant of the pardon, had not been produced.

Judgment of the Court

Having considered all the material and submissions, the Court held that it had no legal basis or even a factual basis to uphold the decision made by the former President to grant a pardon.

“I hold that the said decision is arbitrary, irrational, and has been made for the reasons best known to the former President who appears to have not even made any written decision and has not given any reasons thereto.”

Accordingly, the Court unanimously held that the fundamental rights guaranteed to the petitioners by Article 21(1) of the Constitution had been infringed; and that the decision to grant the pardon to Duminda Silva was null and void and was therefore quashed. The Commissioner-General of Prisons was directed to take necessary steps to give effect to the judgment.

A Comment

There are two stages after a person is convicted of an offence and sentenced to death, imprisonment or fine when the Head of State may intervene. These were originally stated in the Royal Instructions of 1947:

· The Governor-General shall not grant a pardon, respite, or remission to any offender without first receiving, in every case, the advice of one of his Ministers.

· Where any offender shall have been condemned to suffer death by the sentence of any Court, the Governor-General shall cause a report to be made to him by the Judge who tried the case, and he shall forward such report to the Attorney-General with instructions that after the Attorney-General has advised thereon, the report shall be sent, together with the Attorney-General’s advice, to the Minister whose function it is to advise the Governor-General on the exercise of the said powers.

It is a common practice to grant “an amnesty” to certain categories of prisoners, usually based on their conduct, on special occasions such as Independence Day or Republic Day, Wesak or Christmas Day. The list of prisoners to be released is prepared by the prison authorities and submitted through the Minister of Justice to the Head of State for approval.

It is interesting to know whether that practice was considered when Parliament enacted the Protection of Victims of Crime Act in August 2023.

Section 5 of that Act states that the victim of a crime has the right, when the remission of the sentence of a person convicted of an offence is being considered, “to receive notice thereof” and to submit to the person considering such remission “the manner in which the offence committed has impacted on such victim of crime physically, emotionally, psychologically, financially, professionally, or in any other manner”. In a situation in which several hundreds, if not thousands, of prisoners are identified for an amnesty, how practicable would it be to comply with this requirement?

In respect of persons sentenced to death, the procedure set out in the Royal Instructions has previously been scrupulously followed. It commences at the conclusion of the trial. In the Ministry of Justice when Felix Dias Bandaranaike was the Minister and I was the Permanent Secretary, if either the trial judge or the Attorney-General had recommended that the sentence should not be carried out, the Minister advised the Head of State that the sentence be commuted to one of life imprisonment.

If the trial judge and the Attorney-General had both recommended that the sentence be carried out, a Senior Assistant Secretary examined the case record and the investigation notes for one of three elements: (1) evidence of premeditation; (2) excessive cruelty in the commission of the murder; (3) any other material that “shocks the conscience”. If one of these elements was present, the Minister advised to let the law take its course.

In 1976 a policy decision was taken to suspend judicial executions. Consequently, on May 22, 1977, the fifth anniversary of the Republic, President Gopallawa commuted the sentences of everyone on death row to life imprisonment: 144 men and three women. Thereafter, Presidents Jayewardene and his successors in office, Presidents Premadasa, Wijetunge, Kumaranatunge and Rajapakse commuted every sentence of death. In 2019, as his term drew to a close, President Sirisena appeared to have developed a passion to resume executions.

It was reported that, at his instance, the prison authorities advertised for a hangman, purchased a rope from Pakistan, and drew up a list of those lingering in the death row. Then, with lightening speed, he pardoned convicted killer Shramantha Jude Anthony Jayamaha who had been sentenced to death for the brutal murder of Yvonne Jonsson by ramming her head against her apartment stairs. No plausible explanation was ever offered for his sudden and inexplicable change of course.



Features

Coercive laws recipe for future misrule

Published

on

by Jehan Perera

The NPP government is going after powerful figures from the past and present who have engaged in corruption, fraud and criminal activity in a way that no previous government in Sri Lanka has done. Former ministers, politicians and senior state officials are among those facing investigations and legal proceedings. The government has placed before Parliament a document listing 50 cases involving corruption, fraud and other crimes. These include not only financial offences but also cases relating to the Easter Sunday attacks, the killings of Lasantha Wickrematunge and Wasim Thajudeen, the disappearance of Prageeth Ekneligoda and attacks on journalists Keith Noyahr and Upali Tennakoon.

The significance of this effort is that it can demonstrate that nobody is above the law, regardless of political connections or social standing, which will help restore public confidence in institutions that have long been distrusted. It could also recover public resources, improve the investment climate and strengthen the foundations for a more prosperous and just Sri Lanka. When criticised for focusing on the past and not the present, the government position is that these investigations were initiated under earlier governments, particularly between 2015 and 2019, and that it is now allowing investigators to proceed to deal with the backlog without political interference.

But there is an aspect of the government’s approach that is less justifiable. While pursuing past wrongdoing by powerful individuals, it is also advancing a triumvirate of draft laws that could give the state sweeping powers over citizens, organisations and dissent in the present and future. The draft Prevention of Terrorism legislation, the Prevention of Organised Crimes Bill and the NGO Registration and Supervision Bill raise serious questions about the over-centralisation of power. Each of these laws strengthens the powers of the state while weakening the rights and safeguards that protect people from their misuse and thus questions the basic rights of people in democracy where ‘the power of the people is vested in the government’. This is a recipe for future misrule rather than the rule of law. As the well-known saying goes, power corrupts and absolute power corrupts absolutely.

Proposed Laws

The real test of system change, for which the government obtained an overwhelming mandate, requires not only a government willing to hold others accountable, but one prepared to subject itself to the same principles of legality, transparency and restraint. The three proposed laws that are particularly important in this regard are the Protection of the State from Terrorism Bill, the Prevention of Organised Crimes Bill and the NGO Registration and Supervision Bill. Each of these draft laws has been presented as serving a legitimate purpose. Preventing terrorism, combating organised crime and ensuring that NGOs do not facilitate money laundering or terrorist financing are proper responsibilities of the state. Sri Lanka has international obligations in these areas, and no responsible government can disregard them. However, the existence of a legitimate objective does not justify every means adopted to achieve it.

The proposed Protection of the State from Terrorism Bill illustrates the problem. Although its definition of terrorism draws on a model developed by a former United Nations Special Rapporteur, the Human Rights Commission of Sri Lanka has warned that the definition of terrorism extends beyond the model and could bring legitimate political protest, trade union action and civil disobedience within the scope of counter-terrorism legislation. Its concerns also include prolonged detention, inadequate judicial oversight and restrictions on access to legal counsel. These are objections that go to the heart of the relationship between the citizen and the state. The government cannot credibly promise to protect democratic freedoms while creating powers that could be used to restrict them. It is necessary for the government to reassess the draft through transparent consultation and revise provisions that could criminalise legitimate dissent.

The Prevention of Organised Crimes Bill raises similar concerns. It is presented as giving effect to the United Nations Convention against Transnational Organised Crime, which Sri Lanka ratified in 2006. The Centre for Policy Alternatives (CPA) has argued that the convention does not require many of the bill’s provisions. The proposed law extends to a broad range of offences, permits detention orders lasting up to a year, makes confessions to police admissible for purposes of legal evidence, and introduces extensive surveillance powers. A law intended to dismantle criminal networks should not create a parallel system of exceptional powers that could be applied far beyond organised crime. Nor should safeguards developed through years of experience with abuses under the Prevention of Terrorism Act be weakened through legislation bearing a different name. The government should review whether or not existing laws could be used effectively to control these crimes or whether each exceptional power is necessary.

Civil Society

The proposed NGO Registration and Supervision Bill presents another test of the government’s intentions. The government may reasonably seek transparency in the finances of organisations receiving public or foreign funds, including measures to prevent money laundering and terrorist financing. It seeks to justify its overreach on the grounds of meeting the internationally mandated requirements of the Financial Action Task Force (FATF) for the Asia-Pacific region. But these objectives do not justify placing civil society and NGOs under excessive administrative control when even the FATF ranks them as low to medium risks. The draft bill would require registration and renewal, impose extensive obligations on organisations and empower authorities to suspend or deregister them on broadly framed grounds. It is important to redraft provisions that confer excessive discretion over registration, renewal, suspension and deregistration of NGOs.

Among the concerns raised by United Nations human rights special rapporteurs with regard to the draft NGO law are provisions requiring organisations to align with government policies and restrictions that could affect advocacy, dissent and freedom of association. The implications extend well beyond organisations that engage directly with the government. Community groups, human rights organisations, independent researchers and organisations working on reconciliation or accountability could find their activities constrained by uncertainty over how these provisions might be interpreted. Organisations that criticise government policies are not thereby working against the country. Their freedom to do so is part of what distinguishes a democracy from a system in which the government determines which opinions and activities are acceptable.

The government has generated considerable public goodwill through its pursuit of corruption and criminality. It should not assume that this goodwill gives it an unlimited mandate to strengthen the coercive powers of the state. The NPP knows from its own history that governments can treat dissent as a threat and use the machinery of the state against their opponents. There is still time to correct the drafts through transparent public consultation, narrow definitions of offences, meaningful judicial control over detention and surveillance, and effective remedies against arbitrary decisions. A government that pursues corruption while weakening safeguards against state abuse risks undermining its own achievements. Besides bringing to light the abuse of power by previous governments, the NPP government needs to build a system in which no future government can abuse power in the belief they can get away with it.

Continue Reading

Features

Quality assurance without quality enhancement: The irony of university QA

Published

on

By Ramya Kumar

According to the Quality Assurance Council (QAC) of the University Grants Commission (UGC), quality assurance (QA) refers to “the means (i.e. the policies, attitudes, actions, procedures, etc.), by which an institution can guarantee with confidence and certainty, that the standards and quality of its educational provision are being maintained and enhanced”.

An expansive structure has been in place since 2005 to govern and implement QA processes within the state university system. The QAC is the focal point at the UGC that implements external reviews of state universities and institutes. Each university has its own Centre for Quality Assurance (CQA) tasked with performing QA in line with QAC directives. Faculties, in turn, have Internal Quality Assurance Cells (IQAC) performing their own QA; they are answerable to the CQA.

The big question is whether this all-encompassing top-down QA system, that in many ways undermines the internal dynamics of university governance, actually supports universities to enhance the quality of education. This article highlights some concerns.

Top-down check-box activities

The QAC conducts external reviews of universities and degree programmes. A review team appointed by the UGC (who may or may not have experience in the institution/programme in question) examines the self-evaluation report submitted by the said institution/programme. The team then conducts a site visit to verify the claims made in the university’s self-evaluation report, clarify issues identified during the desk review, and examine how QA procedures operate in practice. The team holds meetings with the university administration, members of the Council and Senate, Deans, Heads of Departments, academic and non-academic staff, students, and others. Following the visit, a draft report is submitted to the relevant institution/programme for comment before final publication. The reviewed institution/programme then prepares and publishes an action plan addressing the recommendations, with subsequent monitoring of progress.

There are some worthy QA initiatives under implementation, such as improving facilities for students with disabilities and strengthening mechanisms to address sexual- and gender-based violence. However, for the most part, QA activities have little to do with improving the quality of education. They are mostly preoccupied with monitoring faculty and department websites, digital transformation, student feedback, subject evaluation, course evaluation, peer evaluation, and, more recently, staff appraisal. These activities, which consume an inordinate amount of time—so precious at understaffed universities—have become check-box activities completed to generate evidence for the next review. Below is an excerpt of a conversation between two academics (1 and 2) that conveys how QA plays out at universities (reproduced with permission).

1: … .it’s like social media you know, like posting things on Facebook or twitter or Instagram. When people do a lot of social media, everything they do, they do thinking, “okay I’m going to post it in this way… this I have to put on my Instagram.” QA is a little like that… everything is considered in light of, “ah we can use this for the review, as evidence… for example very recently we were encouraged to have all the things that we do in our department in the faculty newsletter so then they can put in the review. Every little thing has to be noted down….

2: And with pictures and all…

1: At the very least it has to be written so that you have written evidence .. you can’t be doing something for the sake of doing something or because it is good for the department … and sometimes people tell me “oh yea that’s a good idea we can fit that under this x, y section of the review..”

2: Yea, and nobody really thinks about the actual outcome… whether it’s actually helping anyone..

1: I also find that a lot of the words that we used in different ways have now been co-opted to the QA discourse ..including quality.. I can’t actually say what I want as an “outcome”, for example, that the outcome of this workshop is that my students “think about” … then I am told “ah but no that’s not one of the Bloom’s taxonomy words, “think about”.…

2: And the worst part is these medical and agriculture people, these types of people go around spreading it like some kind of gospel!

1: Yea, this cookie cutter way of doing things, they think is the height of innovativeness or creativity, when actually it is so mundane … for me the most awful thing about it is like some fungus of mundanity has taken over through QA reviews.

2: yea, when you say QA, my mind closes off immediately and I stop listening…

Auditing everything but power

QA leaves out crucial aspects of university governance. For instance, there is no review or assessment of the “quality” of university administrations under Criterion 1 or the integrity of procedures governing the promotion of academic staff under Criterion 6 of the institutional reviews.

The majority in the Council—the university’s executive and governing body, which is responsible for selecting the Vice-Chancellor (VC)—are appointed in ad hoc fashion. Apart from the Ex-Officio members in the Council (VC, Deans, etc.), and the two members elected by the Senate, the remainder are appointed by the UGC with no formal consultation or vetting procedure. The VC appointment process described in UGC Circular No. 03/2023 exemplifies how an ostensibly technical process can become entangled in political sycophancy. The Registrar invites applications for the position of VC through advertisement. Applicants must submit a curriculum vitae, a statement of vision for the university and supporting documents. The University Council appoints a three-member Search Committee of senior academics to encourage “eminent persons” to apply, while the UGC appoints a former VC from another university to “observe” the selection process.

A Special Meeting of the University Council is convened. Candidates are interviewed and must make a presentation to the Council Members, followed by questions. Each Council member “gives marks” for seven prescribed criteria: strategic focus (20%), effective leadership (20%), holistic thinking/conceptual skills (10%), academic and research excellence (15%), personal integrity (10%), professional communication (10%) and managerial competence (15%). Marks are averaged, and the Council recommends three candidates to the UGC in rank order. The UGC-appointed observer separately submits a confidential report on the selection process.

This procedure is expected to guarantee quality, but does it? Applications are submitted to the Council Members, who have been appointed on questionable bases, and who are expected to review the applications and give scores, based on objective assessments. But, in reality, most Council Members are manipulated by VC candidates, who often have personal ties with them. The UGC-appointed observer usually has no genuine interest in the outcome. And there is no way for anyone to actually question the Council’s decision once it is made. Although the highest-ranked candidate may ultimately be appointed, the selection remains a political decision made by the President, who retains the discretion to appoint any one of the three.

External reviews also do not look into the promotions of academic staff, except to scrutinise whether there are policies and procedures in place to govern promotion. Academic staff may apply for promotion to Professor once they satisfy the prescribed eligibility requirements, which typically include the period of service, academic qualifications, research and publication achievements, teaching experience, and contributions to the university and wider community. Applications are evaluated against specified criteria, with research output and academic contributions assessed through documentary evidence and expert evaluation. Under the UGC’s scheme for Professors, two experts from outside the applicant’s institution assess specified aspects of research and knowledge dissemination. Again, beneath this technical process, which is externally evaluated, lies a problematic points-based scheme that can be manipulated and abused with impunity.

Rethinking university QA

Like the VC election process and the schemes of promotion for academic staff, QA reviews are open to manipulation. Before a review, there is a chaotic rush to complete evidence gathering and reporting. Academics leave all other work aside, including at times their teaching, to focus on completing documentation and preparing reports. The standardised criteria in the review manuals and scoring sheets often do not reflect differences in disciplines and institutional contexts. But this does not really matter because any serious problems experienced by institutions or programmes are hastily brushed under the carpet to conceal any evidence that could taint the review. The goal is to obtain an A or at least a B grade at whatever cost.

QA may result in positive change if it moves beyond top-down check-box activities towards internally designed and owned processes encompassing all aspects of university governance, led by departments and faculties, and supported by adequate resources. The current QA system needs to be dismantled and replaced by procedures that are accountable, not to the UGC, but to our students and the communities we serve.

(Ramya Kumar is attached to the Department of Community and Family Medicine, Faculty of Medicine, University of Jaffna)

. Kuppi is a politics and pedagogy happening on the margins of the lecture hall that parodies, subverts, and simultaneously reaffirms social hierarchies.

Continue Reading

Features

Down Memory Lane — the Grand 20th Edition!

Published

on

Down Memory Lane: Ready to sing again

Yes, Down Memory Lane, the beloved Sing-Along concert series that first struck a chord, way back in 1997, returns for its landmark 20th edition this Saturday, 17th October, at the beautiful Bolgoda Grand Resort, Moratuwa town centre.

Having celebrated its glorious 25th anniversary with the show in 2023, this milestone 20th concert promises to be even more special.

The organisers, the ever-popular Moratuwa Arts Forum, are pulling out all the stops to present yet another unforgettable evening, brimming with camaraderie, fellowship, and pure nostalgia.

Get ready for two-and-a-half hours of non-stop singing as veteran vocalists, from the Moratuwa Arts Forum, will take the stage to lead and inspire the happy audience to sing, sing and sing to their hearts’ content.

The repertoire? Absolutely magical, according to the organisers.

Veteran Arun Dias Bandaranaike: Will handle the evening’s proceedings / Priya Peiris: Event Conceptor

Around 40 golden oldies — from timeless English vintage evergreens and hits from the 50s to the 90s, to toe-tapping calypsos, soulful American plantation melodies, rousing cowboy and Dixieland favourites, aa well as cherished Sinhala standards. All to be sung with much gusto!

This year’s dedicated organising committee comprises Brian Coorey (Chairman), Priya Peiris (Event Conceptor), Hiran Fernando, Suranga Fernando, Viranjan Perera, Hemka Fernando and Neelesh Silva. Guidance and support comes from Moratuwa Arts Forum President Sarana Guneratne and Secretary Chandani Silva.

Adding his signature charm to the evening, as Master of Ceremonies, will be the veteran Arun Dias Bandaranaike.

Don’t miss this landmark celebration of music and memories!

For further details, contact Hiran Fernando on 0772636446 or WhatsApp 0783636446.

Continue Reading

Trending