Connect with us

Opinion

Duminda affair mishandled: Has the President been led up the garden path?

Published

on

Some of the prisoners who received a presidential pardon

 

By Rohana R. Wasala

The cue for writing this piece came from The Island editorial of (Saturday) June 26, 2021 entitled “Presidency should be straitjacketed”, which is about the current controversy over the presidential pardon given to former SLFP MP Duminda Silva, who had been convicted and sentenced to death for his alleged involvement in the murder of four persons in 2011. The Island editorial reflects the prevalent negative take on the Duminda Silva pardon. There is reason for it. He notes, incidentally, with qualified approval, the fact that the US Ambassador has also expressed her displeasure at the presidential pardon granted to the former MP, but in the same breath he asks her whether the US respects the Sri Lankan judiciary, recalling how it tried to save Prabhakaran who had been tried in absentia and sentenced to jail for masterminding the 1996 Central Bank bombing which left 91 innocent people dead and dozens grievously injured, and caused much material damage to the nation. The editorial concludes with the sensible suggestion that “The constitutional provision that enables the Executive President to pardon convicts will continue to be abused, and what needs to be done, we repeat, is to prune it down. Before the ongoing protests peter out, a campaign should be launched to achieve that end.”

(Caveat: The following is a personal opinion of mine apropos the matter in question. I am articulating it as a senior Sri Lankan domiciled abroad who is a layperson where legal problems are discussed; it is offered to the interested readers for what it is worth. Before going on further, I would like to state here that I have the highest respect and regard for the two families caught up in this tragic flow of events. I deeply empathise with them, understand their suffering and share their pain. I am also aware of the similar suffering of the other three bereaved families. Metta to all!)

I, for one, endorse the idea of subjecting the institution of presidential pardon to some kind of accountability guarantor in order to prevent its possible abuse, but with the important reservation that this ‘pruning’ or ‘straitjacketing’ should not undermine the efficacy of the executive pardon as ‘an act of grace’ which the term denotes (thelawdictionary.org). An executive/royal/presidential pardon can be used to provide relief for a convicted person who is subsequently deemed to deserve it: for example, a death raw prisoner like Duminda Silva himself who came to be seen by the public as an unsuspecting victim of a miscarriage of justice in terms of evidence that emerged at least four years after sentencing. The Island editor’s forthright observation that “Ranjan Ramanayake’s telephone recordings that contain his conversations with judges and senior police officers on criminal investigations and court cases, during the yahapalana days, have not only revealed how politicians exert influence on some members of the judiciary and the police but also caused an erosion of public confidence in the judiciary and the police” has been directly prompted by the revelation of a conspiracy that had been plotted to pervert the course of justice against Duminda Silva. The clear case of a breach of natural justice had to be remedied. But the grant of a presidential pardon to him in order to provide a remedy seems to have been effected in an extremely problematic manner.

It is appropriate, before proceeding, to briefly outline the background to the Duminda Silva pardon episode, which is regrettably entangled with the underhand politics of certain adversaries with a religious quirk according to a prominent monk, who are exploiting it to score political gains. Duminda Silva, popular among his supporters as a benefactor of the poor, who hails from a philanthropist business family, was first elected to the Western Provincial Council in July 2004 as a member of the United National Party (UNP). It was in 2005 that the first term of the United People’s Freedom Alliance (UPFA)’s Mahinda Rajapaksa as President started. Duminda Silva defected to the Sri Lanka Freedom Party (SLFP), the principal partner of the UPFA, in 2007. The UNP charged that he did so in the hope of escaping justice in respect of some criminal cases pending against him, in addition to getting the Asia Broadcasting Corporation (ABC)’s licence restored. (The ABC is today listed under Rayynor Silva Pvt Ltd which runs five radio channels and the Hiru TV. Rayynor is Duminda’s brother.) Duminda was re-elected as a Provincial Councillor in April 2009. Then, in the April 2010 parliamentary election, he was elected as a Colombo district MP under the UPFA.

It appeared that MP Duminda Silva was involved in a fierce personal rivalry with MP Bharatha Laksman Premachandra, a fellow member of the SLFP/UPFA. During the relatively unimportant local government election of 2011, the two of them, while leading their respective groups of supporters during canvassing, came face to face, and apparently, there was a violent clash between them. A shooting took place in which both got injured, Premachandra fatally. Silva suffered serious head injuries. Three others from Premachandra’s group also died. This happened on October 8, 2011. The latter was hospitalised in Singapore. A magistrate’s court issued an arrest warrant on Silva on November 15, 2011.

On September 8, 2016, a High Court Trial-at-Bar found Duminda Silva and four others guilty of murdering four people, including Premachandra. But the decision of the court was not unanimous since Judges Padmini Ranawake and Charith Morais decided on a guilty verdict on five of the suspects, while Judge Shiran Gunaratne acquitted all suspects of all charges.

The High Court decision was appealed against at the Supreme Court. A five-judge bench of the Supreme Court unanimously upheld the three-judge High Court verdict, and its ruling was announced on October 11, 2018.

What is given above was mostly derived from the Wikipedia. The particular page was last edited on June 28, 2021. However, it should be remembered that the entries about Sri Lanka, as usual, cannot be regarded as free from bias (in favour of the previous markedly pro-west yahapalanaya and against the more independent current administration that replaced it). There is no reference to the Ramanayake tapes (a fact, not a rumour) to countervail the negative comment on Judge Shiran Gunaratne. The Wikipedia should not be blamed for this, because interested fair-minded and knowledgeable citizens can appropriately update these pages if they want to set the record straight in the national interest. Regrettably, there is no foolproof remedy for the relentless misinformation against Sri Lanka spread through the Wikipedia and other international media such as the CNN, Al Jazeera, and the BBC. But this is a different matter, and should be dealt with separately. However, it needs to be explained how the Duminda affair has been mishandled by both the parties concerned (i.e., the two groups of advisors separately representing the pardoner and the pardoned).

On the day of Poson (June 24, 2021) President Gotabaya Rajapaksa pardoned 93 prisoners, including 16 Tamil prisoners convicted of terrorist crimes. This is in accordance with Article 34 (1) of the existing Sri Lankan constitution, which invests the President with the power of granting a pardon “either free or subject to lawful conditions” to any offender convicted of any offence in any court within the Republic. Article 34 (1) runs as follows:

“The President may in the case of any offender convicted of any offence in any court within the Republic of Sri Lanka-

a. grant a pardon, either free or subject to lawful conditions

b. grant any respite, either indefinite for such period as the President may think fit, of the execution of any sentence passed on such offender

c. substitute a less severe form of punishment for any punishment imposed on such offender; or

d. remit the whole or any part of any punishment imposed or of any penalty or forfeiture otherwise due to Republic on account of such offence:

Provided that where any offender shall have been condemned to suffer death by the sentence of any court, the President shall cause a report to be made to him by the Judge who tried the case and forward such report to the Attorney-General with instructions that after the Attorney-General has advised thereupon, the report shall be sent together with the Attorney-General’s advice to the Minister in charge of the subject of Justice, who shall forward the report with his recommendation to the President.”

The gratuitous dragging in of the Poson as a symbol of Buddhist compassion and mental serenity into the graceful act of releasing long suffering prisoners is suspicious because its sincerity was somewhat compromised by the inclusion of the special case of the controversial Duminda pardon. Undoubtedly, it was not meant to reflect positively on the President, whoever contrived it. The release of the Tamil prisoners was hailed as a long overdue positive step towards so-called reconciliation by the agents of certain hegemonic interventionist powers who are pursuing their respective geopolitical agendas at the expense of hapless ordinary Sri Lankans’ human rights, democracy, national security, independence, political stability, and economic wellbeing. Amidst the subdued accolades, not unexpectedly, alarm bells started ringing among Sri Lanka’s critics when, shortly after that, a special presidential pardon was granted to Duminda Silva, ex-SLFP MP who had been convicted of murder and sentenced to death by a three-judge bench in 2016, later confirmed by a five- judge Supreme Court bench in 2018.

The informed legal opinion at present seems to be that Duminda Silva could have easily secured quite lawful exoneration on the basis that he had been denied a fair trial. This would have been better for Duminda Silva because a mere presidential pardon does not absolve him of guilt proven in a court of law ‘beyond reasonable doubt’; now the guilty verdict will remain for life. If he enters Parliament (the path towards which has now been cleared of all impediments by the free pardon), he will be an embarrassment not only to that august body, but to the whole government and the country.

 

I am not a lawyer, but only a layman using common sense; I am repeating here what well known defence lawyer Tirantha Walaliyadda PC recently explained, which I hope I have understood correctly (Please see below). As far as I know he has a reputation as a senior lawyer who has shown active concern over a long period of time for upholding and preserving the independence of the judiciary and the integrity of the law enforcement authorities and lawyers. He once wrote: “The Judiciary, law enforcement, and the Bar comprise the backbone of the democratic system” (‘Murder of the Judiciary’/Colombo Telegraph/September 1, 2012).

Incontrovertible evidence to prove that Duminda Silva did not get a fair trial came to light relatively recently when MP Ranjan Ramanayake’s privately and arbitrarily recorded secret telephone exchanges, which had taken place before the announcement of the 2016 three-judge High Court Trial-at-Bar decision, between him, High Court Judge Padmini Ranawake, and former CID director SSP Shani Abeysekera, together conspiring to get a guilty verdict, meaning a death sentence, passed on Duminda Silva. (By the way, Shani Abeysekera has been described as a ‘Sherlock Holmes’ by the Sri Lanka bashing press!) These tapes were freely broadcast over the local electronic media, and widely bruited about by the print- and online-based press. For the commonsensical Sri Lankan public, any refusal to grant Duminda Silva a presidential pardon would have been incomprehensible, the possible legal ramifications of such a pardon being generally beyond their ken. Duminda Silva’s popularity among the common people of his constituency was bound to turn his further incarceration into a cause of public outrage. In this connection, the President cannot be accused of having interfered in matters of the judiciary; he has only exercised his presidential prerogative to free a convicted prisoner. He must have thought about the public perception that prevailed that Silva had been subjected to a miscarriage of justice as revealed by the Ramanayake tapes.

As the law now stands (See Article 34.1 quoted above), the President’s pardoning of Duminda Silva cannot be questioned. The executive pardon is a useful institution when applied in the manner and spirit intended. Shouldn’t the presidential pardon prerogative be taken as an effective check on the power of the judiciary (which itself is open to manipulation by corrupt elements among the law enforcement authorities, i.e., investigating police officers and prosecuting and defending lawyers); in other words, the constitutional provision for granting presidential pardons is a legitimate means of bringing about a balance between the judiciary and the executive in the interest of the public weal. Like the other branch of government, namely, the legislature, these two are manned by humans, who are not infallible. An act of grace is a useful way to restore fairness where it seems to have been denied to an accused person due to human fallibility. To preclude the possibility of misapplying the presidential pardon prerogative ( which is nothing if not an act of grace) to help politically important offenders to evade justice (the pardon of convicted rapist Gonawala Sunil by JRJ, that The Island editorial mentions, is a case in point), the fallible human being who wields executive power as president on behalf of the people can be made accountable to them through a simple amendment to the existing constitution according to the aforementioned lawyer Tirantha Walaliyadda PC.

This needs reference to a ‘Colombo Today’ video uploaded to the You Tube (2021-07-02) of a press conference called by Mrs Sumana Premachandra (widow of murdered Bharatha Lakshman) to protest against the grant of a presidential pardon to Duminda Silva, who had murdered her husband and three others “in cold blood” (‘amu amuwe’ as she put it). She declared that she would hold the President responsible for any harm done or threat posed in the future to the lives of herself, her daughter, and any other members of her family as a result of this act of his. She also warned about the likely deleterious national and international consequences of the move. Mrs Premachandra stated that the Bar Association of Sri Lanka (BASL) and her daughter former MP Hirunika Premachandra had written to the President about the matter and were awaiting a reply. She thanked the US ambassador and the UNHRC for expressing concern about the pardoning of Duminda Silva. Mrs Premachandra said that she would, however, desist from taking it to Geneva as the ultimate sufferers of the consequences of such a move would be the poor people of Sri Lanka. Then she invited PC Tirantha Walaliyadda to connect via zoom, who, she said, had done a lot to bring Duminda Silva to book when the latter was abroad after the crime. It is apparent that Walaliyadda addressed them from his office.

In his terse remarks, the veteran lawyer stressed three points: (1) By asking for and receiving the pardon, Duminda Silva accepted his guilt over the four murders, thereby condemning himself to a lifelong status of convicted murderer. He thus unnecessarily forfeited the valuable chance he had to successfully appeal for a seven-judge supreme court bench to consider his acquittal on the ground of having been denied a fair trial, which would have been good him personally and saved the President the embarrassment of a presidential pardon that potentially set the outside world laughing (though he didn’t violate the constitution by granting the pardon). (2) The President did not interfere with the judiciary as charged in certain quarters. He just used his lawful presidential power to pardon him, while leaving the guilty verdict that had been passed on the pardoned intact. However, Duminda Silva, though permanently stigmatized for a heinous crime, can become an MP and participate in law making, or even get a ministerial post and perform executive duties! Will the people be ready to accept laws passed by such a parliament? What will happen if this sort of thing goes on without being checked? (3) The matter is grave, but there is a simple solution. Just introduce a minor amendment to the Constitution which would require the president to present to Parliament the day following the grant of a pardon a written explanation setting out the reason/s why it was granted. The document must go to the Hansard. Its effect will be felt at the next election. No parliamentary debate is possible or required, because a presidential pardon cannot be set aside by parliament. This will stop any future abuse of the presidential pardon institution.

PC Walaliyadda expressed dismay that the President who is not a lawyer has not been properly guided by his advisors. My concern is about how the President could stick to a course of action with single-minded doggedness, completely relying on the advice of such advisors.



Continue Reading
Click to comment

Leave a Reply

Your email address will not be published. Required fields are marked *

Opinion

KNDU: MBBS for the rich, crumbs for the poor

Published

on

By RAMYA KUMAR

A regular day at work. A medical student, Niluka (not her real name), comes to my office to discuss the presentation she is due to make at a research symposium. In the middle of our meeting she is in tears. Her mother, a single mother, who works as a security guard in remote Polonnaruwa, cannot afford her boarding fees as she has to cover her sister’s A/L tuition classes, as well as her brother’s medicines for a recent health issue. Niluka is unable to focus on her presentation because she is worried about her financial situation. She has a year and half to go.

This is the picture of Free Education that many do not see, of students struggling to make ends meet. Such stories are commonplace at our non-fee levying state universities; as Sumathy Sivamohan wrote recently, “free education does not serve everybody equally, but over the years and across decades, it has come to represent the hope of a vast majority for a better place in society.” However, this aspect of Free Education is obscured by images of protesting students “wasting tax-payers’ money,” constructed by the media in the service of the state. While Colombo-based elites (and others) may be duped into seeing the Kotelawala National Defence University (KNDU) Bill and military repression as solutions to the problems in higher education, this article explores what the Bill really means, especially its implications for medical education.

No vision, no imagination

Free Education, despite its marginalisations and exclusions, is etched in our nation’s consciousness, so much so that governments have been reluctant to overtly dismantle the public education system. Instead, they have stealthily underfunded the system, while incentivising expansion of private education. With inadequate public investment, the state universities under the UGC are floundering to service demand, while the fee-levying Kotelawala Defence University (KDU) and non-state fee-levying higher educational institutions, such as SLIIT, receive state subsidies to finance infrastructure as well as student loans.

Fee-levying universities are simply not affordable for the vast majority in this country. To flourish, they require public-financing, both for their establishment and for student loans, to make them accessible to the masses. While escalating investment in KDU and private fee-levying universities through public funds, the government has adopted a zero-investment policy for state universities under the UGC and increased admissions by a third, this year. The fallout of increasing admissions without budgetary allocations is most felt by universities in peripheral districts, already running on meagre resources.

A government’s vision for education is inextricably linked with its economic policy. While lacking a credible vision for education, successive governments have been equally unimaginative in attempts to improve the economy. Sri Lanka relies on imports for day-to-day essentials, such as lentils, pulses, and milk, with little investment in agriculture or agro-industries for value addition. Meanwhile, billions of rupees are lost in tax incentives to attract (elusive) foreign direct investment, including in education. The Board of Investment expanded its purview to include the social sector in the 1990s, essentially opening education to the global market. The latter has changed the landscape of education in the country with international schools, private colleges and other higher education institutions proliferating in the decades since, and creating parallel systems of education for students from rich and poor families.

Enter KNDU

Faced by mounting debt, the government is desperately looking for avenues to build up its foreign reserves. In 2019, the incumbent government proposed a “free education investment zone” to attract investment from “top international universities,” with accompanying tax exemptions, yet another scheme to subsidise the private sector through public funding. With COVID-19, the plans for the investment zone fell by the wayside. However, just a few years after the SAITM debacle, the government is once again looking to expand private medical education, this time through the KDU.

In 2019, the incumbent President’s manifesto, which is the government’s policy framework, stated that “steps will be taken to expand the Kotelawala Defence University” (p.22). Why KDU? Because the majority of its students are enrolled on a fee-levying basis through mechanisms outside the UGC’s Z score-based system. Although seemingly catering to the military, a closer look at the statistics presented on the website of KDU’s Faculty of Medicine, indicate that the number of medical students recruited doubled, and then tripled, once the faculty began to enroll “non-military foreign students.” As recruitment was limited to foreign students, albeit loosely defined, KDU did not encounter too much controversy.

The KNDU Bill proposes to build a parallel militarised university system, and alternatively, a change to the Universities Act of 1978 aims to bring KDU under the purview of the UGC, as a university for a “specific purpose.” Clearly, the appeal of KDU and other “specific purpose” universities is not their potential to strengthen Free Education. That these reforms will increase the military’s involvement in higher education has been the focus of debate in recent weeks, but less attention has been paid to their implications for education opportunities for students like Niluka, and their potential impact on medical education.

‘MBBS Kada’

Both the proposed KNDU Bill and the amendment to the Universities Act can be viewed as attempts to create the conditions for the expansion of fee-levying MBBS degree programmes, which have been resisted since the days of NCMC. The KNDU Bill will give legal authority for KNDU to recognise and affiliate other institutions to KNDU, bypassing the UGC as well as the Sri Lanka Medical Council’s minimum standards. The Bill will ultimately result in the proliferation of poorly regulated ‘MBBS kada,’ and a decline in the overall standards of medical education.

Even the Association of Medical Specialists (AMS), a body not averse to private education, has made the following statement regarding the KNDU Bill: “On principle, the AMS is not against quality fee levying medical education…if it is regulated and monitored by the UGC and the Sri Lanka Medical Council. However, lack of proper process and transparency will prevent the establishment of such fee levying institutions in Sri Lanka.”

Could expanding medical education in this manner present opportunities to address problems in the health sector, such as the regional maldistribution of physicians?

First, if KNDU and its affiliates aim to attract international medical students, it is unlikely that these graduates would serve in Sri Lanka.

Second, as the Bill will enable KNDU to admit local students, if we assume the current fee structure of upwards of Rs. 1 million per year for the MBBS programme, the KNDU medical students would represent the elite who are more likely to immigrate to greener pastures.

Third, if the government intends to broad-base MBBS degree programmes, they would need to offer hefty student loans to our students. Evidence from other countries suggests that medical graduates with student loans are more likely to opt for higher paying specialties rather than work in primary care, and less likely to serve in rural areas.

It is therefore unlikely that the KNDU Bill would contribute towards advancing the health sector, except perhaps through its military cadets, who would most likely work for the Ministry of Defence and not the Ministry of Health.

Student loans may have other unintended consequences. Despite private practice being widespread, many doctors, especially women non-specialist doctors, do not engage in private practice. In fact, general doctors from peripheral districts often do return to their districts, although they may remain in urban centres owing to the poor education facilities available to children in remote rural areas. These doctors make up the physician workforce in base hospitals and above, as well as in the preventive sector, in all parts of the country. Having to repay a student loan may drive such doctors to remain in districts, where private practice is more available and lucrative, intensifying the regional maldistribution of physicians.

Crumbs for the poor

What of students like Niluka in the non-fee levying state university system? A quick perusal of the website of KDU’s Faculty of Medicine indicates that brain drain may have already commenced. Imagine the fate of our non-fee levying state medical faculties with the mushrooming of ‘MBBS kada’ across the country? They will inevitably offer higher salaries, as does KDU, attracting without any outlay teachers whose training was subsidised by state universities. Furthermore, as reported in the media, KDU has already seen massive state investment, much of it in its teaching hospital, far beyond investments in any single university or faculty of medicine under the UGC. The fate of medical education at non-fee levying state universities does not need to be spelled out here. With their weakening, the demographics of students who enter medicine are sure to change, with fewer and fewer opportunities for students like Niluka, not to mention the broader implications for medical education and the healthcare system.

Let’s stand together to protect Free Education and Free Medical Education!

 

(The writer is attached to the Department of Community and Family Medicine, Faculty of Medicine, University of Jaffna).

Continue Reading

Opinion

The Prophet discouraged employing domestic servants

Published

on

After reading in the newspapers that according to Police Media Spokesperson SDIG Ajith Rohana, 11 women have previously served as domestic servants at ex- Minister Rishad Bathiudeen’s residence, I thought of sharing the following authentic hadith (tradition) of our Prophet (pbuh) with regard to employing domestic servants. Given below is the gist of it.

When the Prophet’s beloved daughter Fathima complained about the unpleasant traces that making dough and kneading it had left on her hands and requested for a servant, his response was  “Shall I not direct you to what is more beneficial for you than having a servant?”

Every night when you go to bed recite 33 times the phrase -‘Subhanallah’ (i.e. ‘Allah is Exalted and clear of imperfection’), 33 times – ‘Al-Hamdu lillah’ ( ‘All praise is due to Allah) and 34 times – ‘Allahu Akbar’ (Allah is the Greatest). —- Source – Sahih Bukhari, Sahih Muslim and Bayhaqi

According to Islamic scholars, a servant is a worldly benefit, but to praise and glorify God in the manner described above will bring the person a greater and everlasting benefit in the Hereafter, and moreover, that by constant recitation one will experience a physical power that will enable him or her to fulfill the household chores more efficiently than a domestic aide.

Now that we have so many “electrical aides” – electric kitchen appliances: blenders/grinders/mixers, fryers, toasters, dish-washers, washing machines, microwave ovens and the list is endless, and with the barrage of allegations (which is now sub judice ) against the ex-Minister, wife and his in laws, isn’t it better that we follow the above prophetic tradition of not employing domestic aides?

MOHAMED ZAHRAN

Colombo

Continue Reading

Opinion

Benefits of rhythmic gymnastics for girls

Published

on

To master this sport, a gymnast needs to master the skills and the artistry necessary to win at competitions and attain recognition, even fame.  But why do parents in some countries enthusiastically support this activity, but others, for example Sri Lanka, do not? The exponents of this art are mostly girls, who, when dressed up in costume and make up, can look really fabulous, having photogenic artistry, posture and style. Such photos make wonderful family heirlooms, recalling memories of a youth well spent!

To be successful at competitions, great agility and flexibility of the limbs is required. Therefore, it helps greatly if exercises are started from an early age, perhaps when a girl is four or five. However, she should be warned in advance that stretching leg muscles is painful, because this stretching is essential to move fully and easily and perform well. Training coaches will do this gently, in stages until complete.

Older gymnasts need to master a programme of moves, including pirouettes, rolls and backward flip and so on, usually working with hoops, ribbons, hand clubs and balls, all according to age and progress. If she takes part in circus gymnastics, this also can be a lot of fun.

What are the benefits arising from all this effort in training? The first and most obvious benefit is that the person gains a high level of fitness, which she may keep for years and it will help her keep a youthful shape into middle age. But the one unspoken benefit, and perhaps the greatest of all, is that she will develop an ability to concentrate. This is absolutely needed to enable her to perform the various routines to a high standard.  Then, with improved concentration, she has a very valuable asset which renders her a capable, competent human being, which is of great benefit to the society she lives in.                                                

P. HETTIGE

Continue Reading

Trending