Colombo, 10 September 2026 – In a landmark ruling underscoring judicial independence and the limits of executive power, Sri Lanka’s Supreme Court today declared the presidential pardon granted by former President Maithreepala Sirisena to Ven. Galagoda Aththe Gnanasara Thero as null and void. The decision, delivered by a three-member bench comprising Hon. Janak De Silva, J., Hon. Dr. Sobhitha Rajakaruna, J., and Hon. Sampath B. Abayakoon, J., highlights the imperative for transparent and reasoned decision-making in the exercise of presidential pardons, particularly in matters involving contempt of court.
Background to the Legal Challenge
The contentious pardon dates back to May 23, 2019, when then-President Maithreepala Sirisena granted a full pardon to Ven. Galagoda Aththe Gnanasara Thero. This followed the Thero’s conviction in 2018 for contempt of court. The contempt proceedings (CA (CC) Application No. 04/2016) were initiated by the Court of Appeal after a letter from the Homagama Magistrate detailed the Thero’s disruptive conduct in court on January 25, 2016.
Ven. Gnanasara Thero was found guilty on four counts, including obstructing court proceedings, challenging judicial authority, disrespecting the court, and making derogatory remarks towards a Senior State Counsel. He was sentenced to rigorous imprisonment for concurrent terms totaling six years. His subsequent appeals to both the Court of Appeal and the Supreme Court for special leave to appeal were refused, affirming the conviction.
Petitioners Challenge Executive Discretion
Two separate fundamental rights applications, S.C.F.R. Application No: 256/2019 filed by the Centre for Policy Alternatives (CPA) and Dr. Paikiasothy Saravanamuttu, and S.C.F.R. Application No: 257/2019 by Sandhya Ekneligoda, challenged the constitutionality of the pardon. The petitioners argued that, under Sri Lanka’s 1978 Constitution, sovereignty rests with the People and is inalienable. Judicial power is vested in Parliament and exercised through the judiciary, ensuring the independence of the judiciary from executive interference.
They contended that contempt of court is distinct from ordinary criminal offenses, as punishing it is crucial for maintaining the judiciary’s authority and effective functioning. Therefore, the President’s power under Article 34 must be exercised consistently with constitutional principles and without undermining judicial independence. The petitioners asserted that the pardon, granted without prior consultation with the Supreme Court or the Chief Justice, undermined the separation of powers, violated the People’s sovereignty, and was ultra vires Article 34 of the Constitution, arbitrary, and politically motivated.
Respondents’ Defence
Former President Maithreepala Sirisena, cited as the 1(A) Respondent, maintained that the pardon was granted following requests from distinguished members of the Buddhist clergy, including Mahanayake Theros, other religious denominations, civil society representatives, and the Diyawadana Nilame of the Sri Dalada Maligawa. He claimed the decision was made reasonably, in accordance with due process and the law, and that inquiries revealed no adverse information regarding the Thero’s conduct during imprisonment.
Ven. Galagoda Aththe Gnanasara Thero, as the 5th and 2nd Respondent in the respective applications, supported the former President’s position, arguing that no legal distinction exists between a criminal conviction and a contempt conviction regarding presidential pardons. He stated that the President has a wide discretionary power under Article 34 and expressed his unconditional regret and remorse for the 2016 incidents, affirming his respect for the judicial system.
Supreme Court’s Detailed Analysis
The Supreme Court heard both applications conjointly due to the substantial identity of their factual background and legal issues. The judgment extensively reviewed the justiciability of presidential pardons, the constitutional allocation of judicial power, procedural requirements, and the nature of discretionary authority.
Justiciability and Judicial Power
Reaffirming previous rulings (Hirunika Premachandra v. Attorney General and Women & Media Collective v. Attorney-General), the Court reiterated that presidential pardons are amenable to judicial review. Crucially, the Court clarified that under Article 4(c) of the Constitution, judicial power is vested in and exercised by the judiciary. Therefore, the President’s power under Article 34(1) does not extinguish or nullify a court’s conviction or sentence but only relieves the offender from its execution.
Procedural Requirements and Article 33(h)
Justice Janak De Silva, J., diverged from prior opinions in Hirunika Premachandra and Women & Media Collective regarding the applicability of Section 3(q) of the Assistance to and Protection of Victims of Crime and Witnesses Act. He opined that interpreting Section 3(q) as imposing a procedural requirement for pardons would amount to an amendment of Article 34(1) of the Constitution, which can only be done through the rigorous process outlined in Chapter XII of the Constitution. Therefore, Section 3(q) cannot be deemed to add a new procedural requirement to Article 34(1).
The Court also considered Article 33(h), which allows the President to exercise powers not inconsistent with the Constitution or written law, as authorized by international law, custom, or usage. However, it held that Article 33(h) does not qualify the discretionary power under Article 34(1) to be subject to Section 3(q).
The Duty to Give Reasons and Abdication of Power
The core of the Supreme Court’s decision rested on the absence of recorded reasons for the pardon and the former President’s mechanical approval of a recommendation.
- Discretion as Constitutional Trust: The Court emphasized that while the President holds broad discretion under Article 34(1), it is a constitutional trust exercised on behalf of the People, not a personal prerogative. Its exercise must serve the public interest and not be driven by personal, political, or self-serving interests.
- Nature of Contempt of Court: The judgment cited both local and international jurisprudence, underscoring that contempt of court undermines the due administration of justice and the authority of the judiciary, which is a cornerstone of the rule of law.
- Lack of Documented Reasons: An examination of the Presidential Secretariat files revealed that while the Additional Secretary (Legal) made recommendations, there were no documented reasons from the former President explaining why he considered granting the pardon. The former President simply approved the recommendation.
- Post-19th Amendment Accountability: The Court highlighted that with the removal of presidential immunity by the 19th Amendment, presidential acts are justiciable. This mandates the President to make a contemporaneous record of reasons for decisions, including pardons, and make them available to the Court when challenged. This ensures accountability and allows for effective judicial scrutiny.
- Abdication of Power: The Court concluded that the former President, by merely approving the recommendation without recording his own reasons or addressing relevant concerns (such as dissenting requests against the pardon or the timing of action), acted mechanically and effectively abdicated his constitutional responsibility.
The Verdict: Pardon Nullified
Based on these findings, the Supreme Court declared that the pardon granted by former President Maithreepala Sirisena to Ven. Galagoda Aththe Gnanasara Thero was arbitrary, in violation of the public trust and the rules of natural justice, ultra vires his powers, and an infringement of the fundamental rights guaranteed by Article 12(1) of the Constitution (equal protection under the law).
Consequently, the Court declared the pardon “null and void and of no force or avail in law.” While the judgment does not preclude a future pardon for Ven. Gnanasara Thero, it unequivocally states that any such pardon must be granted strictly in accordance with the law and upon due consideration of all relevant material placed before the President, with proper reasoning documented. The Court refrained from making further orders against the former President, noting that he had acted on instructions that were materially erroneous in law.
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