By Dr. Paikiasothy Saravanamuttu
Ven. Gnanasara Thera has been pardoned and released. It is dangerous and a disgrace. Civil society organisations have voiced their concerns; political parties have not, especially the UNP. The thera upon release has met with the President and has promised to release names of more people associated with extremism and terrorism.
The right of the President to pardon is granted; the issue is the manner in which it was done, the timing, and the message it sends out to the public at large.
The Centre for Policy Alternatives (CPA) observed in a media statement: “CPA stresses that presidential pardons exist to correct miscarriages of justice and are to be exercised with extreme caution and gravity. The pardon of Gnarasara Thera cannot be called a fit and proper exercise of that power by any metric. The trial, conviction, and sentencing of the thera raised no legitimate questions of any miscarriage of justice and there was ample opportunity for the thera to fully exercise his right to a fair trial by appealing his conviction. Indeed, this option was pursued by him at both the Court of Appeal and the Supreme Court, which both duly dismissed the appeals. As such, the pardon itself amounts to an undue interference with the legal process.
“The pardon raises a number of very serious concerns. First, it legitimises the view that it is possible to act with contempt for the judiciary, be punished through a legitimate judicial process, and then enjoy impunity through a pardon granted on political considerations. The pardon specifically signals that some categories of citizens, such as the Buddhist clergy, can expect to enjoy preferential treatment when it comes to obeying the law. It also sets a dangerous precedent whereby properly tried, convicted, and sentenced persons can be released on the whims of the president and government.
“Second, the pardon comes amidst the ongoing and extremely tense situation in the country. It has been a mere week since extremist Sinhala Buddhist mobs instigated anti-Muslim riots across North Western Sri Lanka, resulting in the death of one Muslim man and the damage to a large number of Muslim residences, businesses, and places of worship. Gnanasara Thera has played a documented role in the past as Secretary of the Bodu Bala Sena (BBS) in expressing hate speech and inciting violence towards minority communities – particularly Muslim Sri Lankans.
The pardon, however indirectly, represents a worrying endorsement of such anti-minority sentiment, and can only heighten the anxiety and fear being felt by Muslim Sri Lankans today.
“The responsibility for interfering with the rule of law and endorsing anti-minority sentiment in this manner lies not only with the President but the wider Government as well. The Minister of Buddha Sasana Gamini Jayawickrama earlier endorsed requests by religious and political third parties to issue the pardon, and numerous members of the Government have spoken out and acted in support of it. Accordingly, the Government as a whole must justify, with stated reasons, why the grant of a pardon in this case will not be inconsistent with the Constitution, the rule of law, and the administration of justice in Sri Lanka; and will not exacerbate inter-communal tensions. Anything less will directly undermine the legitimacy of Sri Lanka's democracy.”
The Bar Association of Sri Lanka (BASL) too severely criticised the pardon, stating that whilst the power to grant a presidential pardon was unquestionable, the exercise of such power should be based on sound legal principles and reasoning. It should not be exercised arbitrarily. The BASL averred: “Any departure from these considerations would shake the foundations of the rule of law and would shock the conscience of those who value an independent judiciary.”
Sri Lankan first
It remains to be seen as to how the thera would behave. The behaviour of the President in pardoning him, and at this moment in time, is absolutely shocking. Why at this time? The President should be summoned and questioned in Parliament for this and other unconstitutional acts. The temerity of the UNP in failing to denounce this on the grounds that it would anger Sinhala Buddhists is appalling. The UNP should recognise that the Sinhala Buddhist vote, even if it were to be supportive of the presidential pardon, is not going to the UNP. The latter should also realise that the failure to come out with a statement condemning the pardon undermines the certainty of a solid liberal and minority vote for the party in the forthcoming elections.
Whilst certain countries have relaxed the travel ban to Sri Lanka, there are areas that are tense. Furthermore, the discriminatory actions against Muslims range from the boycott of shops to goebbelsian accusations of sterilisation, and need to be resisted by more firm and assertive governmental leadership.
The next election is going to be fought on national security and the party that has both the guts and wisdom to show the relationship between national security, reconciliation, human rights, and transitional justice needs to stand up and say so, fast. Or else, it will be a one-sided contest, with every candidate outbidding each other for the strong man role.
Underpinning all of this is the vision for Sri Lanka. Do we espouse a civic nationalism where everyone is an equal citizen before the law or do we accept the unity in diversity model where everyone is different yet equal – a Sri Lanka made up of those who identify themselves as Sri Lankans first and acknowledge their other identities to be secondary.
Seventy years of independence, a near 30-year civil war, a coup against the Constitution, and the carnage of Easter Sunday, and we are still in the process of defining ourselves. That is perhaps the real significance of the forthcoming presidential election.
Ven. Gnanasara Thera has been pardoned and released. It is dangerous and a disgrace. Civil society organisations have voiced their concerns; political parties have not, especially the UNP. The thera upon release has met with the President and has promised to release names of more people associated with extremism and terrorism.
The right of the President to pardon is granted; the issue is the manner in which it was done, the timing, and the message it sends out to the public at large.
The Centre for Policy Alternatives (CPA) observed in a media statement: “CPA stresses that presidential pardons exist to correct miscarriages of justice and are to be exercised with extreme caution and gravity. The pardon of Gnarasara Thera cannot be called a fit and proper exercise of that power by any metric. The trial, conviction, and sentencing of the thera raised no legitimate questions of any miscarriage of justice and there was ample opportunity for the thera to fully exercise his right to a fair trial by appealing his conviction. Indeed, this option was pursued by him at both the Court of Appeal and the Supreme Court, which both duly dismissed the appeals. As such, the pardon itself amounts to an undue interference with the legal process.
“The pardon raises a number of very serious concerns. First, it legitimises the view that it is possible to act with contempt for the judiciary, be punished through a legitimate judicial process, and then enjoy impunity through a pardon granted on political considerations. The pardon specifically signals that some categories of citizens, such as the Buddhist clergy, can expect to enjoy preferential treatment when it comes to obeying the law. It also sets a dangerous precedent whereby properly tried, convicted, and sentenced persons can be released on the whims of the president and government.
“Second, the pardon comes amidst the ongoing and extremely tense situation in the country. It has been a mere week since extremist Sinhala Buddhist mobs instigated anti-Muslim riots across North Western Sri Lanka, resulting in the death of one Muslim man and the damage to a large number of Muslim residences, businesses, and places of worship. Gnanasara Thera has played a documented role in the past as Secretary of the Bodu Bala Sena (BBS) in expressing hate speech and inciting violence towards minority communities – particularly Muslim Sri Lankans.
The pardon, however indirectly, represents a worrying endorsement of such anti-minority sentiment, and can only heighten the anxiety and fear being felt by Muslim Sri Lankans today.
“The responsibility for interfering with the rule of law and endorsing anti-minority sentiment in this manner lies not only with the President but the wider Government as well. The Minister of Buddha Sasana Gamini Jayawickrama earlier endorsed requests by religious and political third parties to issue the pardon, and numerous members of the Government have spoken out and acted in support of it. Accordingly, the Government as a whole must justify, with stated reasons, why the grant of a pardon in this case will not be inconsistent with the Constitution, the rule of law, and the administration of justice in Sri Lanka; and will not exacerbate inter-communal tensions. Anything less will directly undermine the legitimacy of Sri Lanka's democracy.”
The Bar Association of Sri Lanka (BASL) too severely criticised the pardon, stating that whilst the power to grant a presidential pardon was unquestionable, the exercise of such power should be based on sound legal principles and reasoning. It should not be exercised arbitrarily. The BASL averred: “Any departure from these considerations would shake the foundations of the rule of law and would shock the conscience of those who value an independent judiciary.”
Sri Lankan first
It remains to be seen as to how the thera would behave. The behaviour of the President in pardoning him, and at this moment in time, is absolutely shocking. Why at this time? The President should be summoned and questioned in Parliament for this and other unconstitutional acts. The temerity of the UNP in failing to denounce this on the grounds that it would anger Sinhala Buddhists is appalling. The UNP should recognise that the Sinhala Buddhist vote, even if it were to be supportive of the presidential pardon, is not going to the UNP. The latter should also realise that the failure to come out with a statement condemning the pardon undermines the certainty of a solid liberal and minority vote for the party in the forthcoming elections.
Whilst certain countries have relaxed the travel ban to Sri Lanka, there are areas that are tense. Furthermore, the discriminatory actions against Muslims range from the boycott of shops to goebbelsian accusations of sterilisation, and need to be resisted by more firm and assertive governmental leadership.
The next election is going to be fought on national security and the party that has both the guts and wisdom to show the relationship between national security, reconciliation, human rights, and transitional justice needs to stand up and say so, fast. Or else, it will be a one-sided contest, with every candidate outbidding each other for the strong man role.
Underpinning all of this is the vision for Sri Lanka. Do we espouse a civic nationalism where everyone is an equal citizen before the law or do we accept the unity in diversity model where everyone is different yet equal – a Sri Lanka made up of those who identify themselves as Sri Lankans first and acknowledge their other identities to be secondary.
Seventy years of independence, a near 30-year civil war, a coup against the Constitution, and the carnage of Easter Sunday, and we are still in the process of defining ourselves. That is perhaps the real significance of the forthcoming presidential election.