On 26 March 2020, Gotabaya Rajapaksa, President at the time, pardoned and released an army officer on death row, whose conviction in the High Court on Trial-at-Bar was unanimously affirmed by a five-judge bench of the Supreme Court for slitting the throats of eight civilians, including a five-year-old child.

This isn’t the first time a President has used the powers vested in him by Article 34 of the Constitution as the head of state. Usually exercised during days of religious significance, the President has also used this authority to grant pardon to political allies convicted with due process, tarnishing the value placed on the rule of law, a critical component of any strong democracy

“Field research points to the fact that people don’t have faith in the law. There is a shallow opinion about the state of the rule of law in the country. When these sorts of things happen, it hits rock bottom,” commented Dr Deepika Udagama, Head of the Department of Law at the Peradeniya University, who also served as Chairperson of the Sri Lanka Human Rights Commission.

She explained that the power to grant pardon is a check on a country’s legal system to right legal wrongs if there has been injustice in an individual’s conviction. It is a safety net to provide mercy for cases where the law cannot without compromising its integrity.

A pardon has to be granted responsibly, in good faith, with serious consideration because of the effect such a decision has on the legal system as well as the safety of the public. If not, convicted criminals who have been proven guilty beyond a reasonable doubt would enter society and be a danger to the public. Moreover, doing so undermines judicial decisions and strains people’s faith in the justice system, putting all the time, effort and hard work of investigators, legal professionals, judges and other parties involved in the process to nought.

Arbitrary and unreasonable use of this power directly threatens democracy and the people’s sovereignty, which the Constitution guarantees. Furthermore, it erodes the rule of law and impairs accountability, which lowers Sri Lanka’s standing in the international community and desirability as a destination to conduct business.

“The international community recognises when a government is accountable to its people,” Udagama explained. “Only the crooks of the world would want to do business in a country where there is a breakdown in the rule of law.”

Possible reforms to the Presidential Pardon that Udagama suggests include creating a more transparent procedure for deliberating pardons and the President stipulating the grounds behind it to the public. But “the larger system itself, which encourages unaccountable governance, needs reform. You can’t expect a system that encourages unaccountable governance to be transparent. The business community has a large part to play by investing in these reforms and champions of transparent governance.”