A storm of controversy has engulfed Sri Lanka’s justice and prison systems, centred around the highly irregular release of a convicted financial fraudster named W.H. Athula Thilakaratne.
What began as a seemingly innocuous Vesak presidential pardon has spiralled into a full-blown scandal, exposing alleged corruption, abuse of power, and a shocking disregard for due process at the highest levels of the State.
The case of Thilakaratne has not only cast a long shadow over the sanctity of presidential clemency but has also ignited a fierce public debate about transparency and accountability within Sri Lankan institutions.
The country is abuzz with discussions surrounding the audacious circumstances of Thilakaratne’s release. From hushed whispers in Government corridors to vociferous condemnations in parliamentary sessions, the incident has laid bare the vulnerabilities of Sri Lanka’s legal framework and the potential for abuse within its administrative machinery.
As the Criminal Investigation Department (CID) delves deeper, the nation watches with bated breath, eager to uncover the full extent of what appears to be a deeply entrenched network of malfeasance. The very foundation of judicial authority and Executive discretion is now under intense scrutiny, prompting a national conversation on the checks and balances necessary to prevent such violations.
A profile of repetition and recidivism
The release of Thilakaratne, a former finance company manager, has drawn significant scrutiny, especially given his prior engagements with the legal system. Thilakaratne has a documented history that includes a previous conviction for financial fraud. Furthermore, there are over 30 additional cases alleging fraud currently pending against him across various courts.
Thilakaratne’s most recent interaction with the judicial process had concluded on 2 May, when the Anuradhapura High Court delivered a judgment. He was sentenced to six months of rigorous imprisonment, along with a fine of Rs. 20,000, and a two-year rigorous imprisonment suspended for five years, specifically for the misappropriation of Rs. 4 million.
The court had further mandated that he pay Rs. 2 million in compensation to the complainant, with an additional six months’ imprisonment if this sum remained unpaid. This conviction, following a series of alleged financial improprieties, was expected to lead to his continued incarceration.
A release shrouded in mystery
Just 10 days after his conviction, on or around Vesak Poya Day, 12 May, Thilakaratne had unexpectedly walked free from the Anuradhapura Prison.
Initial statements from prison officials swiftly cited a presidential pardon, ostensibly granted in view of the sacred Vesak festivities, as the reason for his liberation. This explanation, however, immediately raised eyebrows among those familiar with the established legal protocols and ignited suspicions of foul play.
The official process for presidential pardons, outlined under Article 34(1) of the Constitution, is a well-defined and rigorous one. It mandates that prison authorities first compile a list of eligible inmates. This list is then submitted to the Ministry of Justice, which undertakes a comprehensive review.
Following this review, the final, approved list is forwarded to the Presidential Secretariat for the President’s ultimate approval and signature. This hierarchical and meticulous process is designed to ensure transparency and prevent arbitrary releases, thereby upholding the integrity of the Executive’s powers.
Former President of the Bar Association of Sri Lanka Saliya Pieris, PC provided insights into the intricacies of presidential pardon powers, noting the stark difference in detailing for capital punishment cases versus others.
“The Constitution sets out a detailed process in relation to the implementation of the death penalty and in relation to pardons in death penalty cases. However, in respect of other pardons, no process is detailed,” Pieris explained.
He emphasised that despite this lack of explicit detail, recent case law dictated that “any pardons should not be arbitrary and contrary to the principles of natural justice. Under the Assistance to and Protection of Victims of Crime and Witnesses Act, a victim should be heard before a pardon is given”.
He also acknowledged the long-standing tradition of mass pardons for minor offences during religious festivals, noting: “Apart from specific pardons given, it has been a practice for a certain number of prisoners who are in for minor offences to be pardoned at Christmas, Vesak, etc.” This customary practice, however, still operates under the broader principles of legal adherence.
The bombshell came when the Presidential Secretariat, a key State institution, unequivocally confirmed that Thilakaratne’s name was absent from the official list of 388 inmates recommended for pardon.
This critical piece of information, later corroborated by Government reports and official statements, indicated a severe breach of protocol. This approved list had been submitted to President Anura Kumara Dissanayake on 6 May, nearly a week before Thilakaratne’s supposed release.
Senior Additional Secretary to the President Roshan Subhash Gamage was clear in his assessment of the situation. “This person (Thilakaratne) did not receive pardon,” Gamage stated emphatically to reporters.
He elaborated on the established procedure: “The usual process is that the Ministry of Justice gives a list of persons recommended for presidential pardon and the President will check the names and grant pardon. The Justice Ministry generally takes account of circumstances, such as good behaviour, particularly considering affordability of pursuing legal action and other criteria. Only 388 names were approved but his name was not on the list. As a result, there is now a complaint. This release is illegal.”
Gamage acknowledged the ongoing nature of the issue: “I cannot give a statement on how things will emerge, but authorities will handle this matter.” This stark discrepancy, highlighted by a senior presidential official, unequivocally set the stage for the unfolding crisis. Thilakaratne’s release, it became abundantly clear, was not officially sanctioned by the President, making it an unlawful act from its very inception.
Controversy erupts
The clandestine nature of Thilakaratne’s release remained largely under wraps until 6 June, when details began to surface in local media reports, sparking immediate outrage and a swift public outcry.
The Presidential Secretariat wasted no time, demonstrating a clear commitment to upholding the rule of law. On the very same day, it lodged a formal complaint with the CID, initiating a special, high-priority investigation titled ‘Release of a Prisoner Without Presidential Approval Under the Presidential Pardon.’
The following day, 7 June, the President’s Media Division (PMD) issued a categorical statement, reaffirming that Thilakaratne’s name was not on the approved list and confirming that a “serious irregularity” had indeed occurred.
The political temperature began to rise precipitously, with the main Opposition party, the Samagi Jana Bajawegaya (SJB), swiftly seizing on the issue in Parliament. The party’s representatives vociferously demanded answers regarding the dubious circumstances of the pardon, raising concerns about accountability and the integrity of State institutions, implicitly questioning the oversight mechanisms in place and demanding comprehensive reforms.
Probe unearths alarming details, legal distinctions
The CID launched a probe, wasting no time in questioning key figures within the prison and justice systems. Commissioner General of Prisons Thushara Upuldeniya quickly became a central figure in the investigation, subjected to extended periods of rigorous questioning, initially over five hours, followed by another 10 hours, according to detailed reports from investigative journalists closely following the case.
On 8 June, Public Security Minister Ananda Wijepala publicly addressed the growing scandal, expressing profound disapproval of the unlawful release. He pledged maximum legal action against those responsible and hinted at a disturbing possibility: that unauthorised prisoner releases may have occurred previously, suggesting a deeper, systemic issue within the prison administration that required urgent attention and reform.
Minister Wijepala, speaking to The Sunday Morning, emphasised the immediate legal consequences awaiting Thilakaratne. “Thilakaratne will have to be arrested. He has not followed the law, and was not released under a presidential pardon. Therefore, the CID is on the lookout for him and he will have to return to prison,” Wijepala said.
He further stated the Government’s official stance on the ongoing investigation: “The CID is conducting investigations on the matter and it is not for us to determine the course of their investigations. They have arrested the Commissioner General of the Prisons Department and are attempting to determine how things transpired. The remaining matters will be decided by the courts. These are not political matters for us to interfere with.”
While acknowledging the core issue, he reiterated the sanctity of the legal process: “Of course the name was not on the list given by the President and he has not been released, but the court has a role to play in determining who was right and what will happen next. If State officials have not conducted their duties and played a role in the wrongdoing, then they will be arrested in accordance with the law.”
Preliminary CID inquiries indicate that Thilakaratne’s name was allegedly manually inserted into a pardon list and his release on 12 May had been derived from a list finalised in April. It is also suggested that other inmates may have been similarly released as well. However, the above information is speculative and pending final determination by the CID.
Pieris, when asked about the technicalities distinguishing this case from previous controversial pardons like those of Jude Shramantha Jayamaha and Duminda Silva, noted: “This is a matter now before courts and it would be premature to comment without knowing the factual position.”
However, the general understanding, based on legal analysis, is that while the Jayamaha and Silva cases involved the quashing of a pardon granted by two successive Presidents that were subsequently deemed legally flawed, Thilakaratne’s case appears to be an abuse of process, where no legitimate pardon was issued in the first place, making his release fundamentally illegal (ultra vires) from the outset.
Thilakaratne reappears
The accelerating investigation led to a pivotal development on 10 June, when Upuldeniya was arrested by the CID. He was subsequently remanded in custody until 13 June by the Colombo Additional Magistrate, a move that sent shockwaves through the public sector and affirmed the gravity of the allegations. In a swift and decisive response, the Government suspended Upuldeniya from his post.
Just as the CID was reportedly intensifying its search for him, Thilakaratne made an unexpected appearance in court on 11 June. He surfaced at the Anuradhapura Additional Magistrate’s Court for a separate, ongoing case, and also observed the proceedings against the Anuradhapura Prison Superintendent.
Thilakaratne confidently identified himself in open court, even as CID officers were present, creating a dramatic scene widely covered by local media. His lawyer, in a defiant stance, asserted that his client’s release was “lawful and voluntary” and that he was present in court because he had been “legally cleared” of the High Court case (HC/69/2018), a claim that immediately drew scepticism from legal observers and ignited further debate on the legality of his current status.
The legal ramifications of Thilakaratne’s reappearance are significant. Pieris addressed the hypothetical scenario of a person being rearrested without a court order if a pardon was issued and later found to be invalid. “If a pardon is granted by the President, only the Supreme Court can quash it in a Fundamental Rights (FR) action,” he clarified.
“If a person has been released from jail illegally by an errant official when no pardon was granted, then perhaps the person can be rearrested but there would have to be a court process to determine that the release was wrong, probably a writ application before the Court of Appeal or an FR application before the Supreme Court,” he added.
This explanation highlights the complexity and the critical need for due process, even when an illegal release is apparent, emphasising that a return to incarceration would require judicial validation.
The defence and broader implications
Minister of Justice Harshana Nanayakkara addressed the matter with a degree of caution, emphasising the ongoing nature of the internal inquiry. “We are holding an internal inquiry on how things transpired, so pending investigations, I cannot give a statement,” he told the press.
He stressed the ministry’s commitment to accountability: “We will have to trace any person who has acted against the law and if any malpractice has happened. Only the investigations will reveal the details, so we will have to wait.”
Regarding State officials found culpable, he added: “With regard to the State officials who are likely to have engaged in malpractice, they will have to face a disciplinary inquiry. If they are found guilty, the courts will determine their sentence. The Ministry of Public Security is looking into these matters and due action will be taken against those who violate the law.”
Public Security Minister Wijepala reiterated the Government’s resolve to prevent future recurrences of such incidents.
“In order to ensure such things do not happen again, the Justice Ministry has taken note of matters and made a statement during the Cabinet meeting to intensify scrutiny over the process of presidential pardons,” he confirmed, indicating that the Government was actively seeking to tighten loopholes in the pardon process and enhance oversight.
Amidst the controversy, newly appointed Spokesperson of the Prisons Department Jagath Chandana Weerasinghe maintained a position of cautious silence. When approached for comment on the Thilakaratne case, Weerasinghe stated that he had been “advised not to comment on the matter pending investigations and court proceedings”.
The Thilakaratne scandal has far-reaching implications, extending beyond the confines of the Anuradhapura Prison. It has thrust the spotlight onto the exercise of presidential pardon powers, raising critical questions about their integrity, transparency, and potential for misuse.
Pieris weighed in on potential reforms to the presidential pardon power, stating: “Perhaps there could be a pardons board which will make recommendations to the president. Already there are such boards in relation to prisoners who have served long sentences.”
Nevertheless, he also acknowledged the importance of this power: “However, in my view, this is a power that should be there with the head of state as it is in other countries.”
He concluded with a poignant observation on the inherent challenge: “The problem with Sri Lanka, as well as other countries, is that this power is sometimes abused by the Executive.”