Presidential pardon to Sergeant Sunil Ratnayake.

War redefined the world from time to time. It brought absolute misery into human lives and communities. Wounded communities of the war healed over the years. People reconciled at times. 

After over a decade following the end of civil war in Sri Lanka, I am still yearning to see reconciliation in every sense of the word. Having said that, it continues to be a dream.

My first gateway to the North was my batchmates in the University (years before I got to visit North and North-East). Having lived with a bunch of people from various cultural backgrounds and belief systems across the island nation, needless to say, I am absolutely shocked from what I see/ hear today on this topic. Yes, I am referring to the responses of majority Sinhalese on presidential pardon to Sergeant Sunil Ratnayake.

[Warning: This content shall be toxic to you if you are a person who can’t make a point or finish a sentence without swearing. Specifically, if you’re a life member of the Sinhalese nationalist Rajapaksa base].

I honestly don’t want to waste time expressing and explaining myself, but leaving loose ends every nook and corner among circles of friends and acquaintances may make a few innocent unspoiled souls subscribe in to the thinking of the extremists and racists.

There are two schools of thought in this scenario: legal stance and moral values. From what I understand, the legal stance here is twofold: what is the basis of the presidential pardon to reverse the verdict of a 13-year trial from Nov 2002 to Jul 2015? And, did the president adhere to the constitutional procedures when making this decision?

Let’s break this down slowly. First of all, let’s talk about the legal stance: the basis for the presidential pardon. This soldier was sentenced to death in 2015 after a 13-year trial. He was found guilty of 15 charges including illegal arrest, torture, murder and the burial of the bodies in a mass grave. The highlights of this trial can be found in the illustration below (courtesy Verité Law). If not satisfied with this minute explanation you can always spend a day during the SARS-CoV-2 lockdown reading the trial, at least the Supreme Court trail: Sunil Ratnayake vs Hon Attorney General. It is a fascinating read. In short, to me, scientifically speaking, SR vs AG is a much solid verdict compared to the uncertainties seen in the Court of Appeal trial of Don Jude Anthony Jayamaha vs Hon Attorney General which was also a highly questionable case of presidential pardon given to a convicted criminal who was found guilty for brutally murdering a Swedish Sri Lankan teenager. On a separate note, what is wrong with this country? 

In a nutshell, there were no significant uncertainties pertaining to the evidence related to the court trial of Sunil Ratnayake and three Supreme Court judges had unanimously given the verdict beyond reasonable doubt. For some reason, there was no public justification issued by the President’s Secretariat to understand his reasons behind the Presidential pardon. 

Second of all, let’s take a look at the legal aspects of the procedures followed by the President. According to article 34 of the constitution the presidential pardon needs to be run by a few people before reaching a decision. According to article 34 the President should request a report by the judge, followed by AG’s advice and the recommendation given by the Minister of Justice. It’d be interesting to see what these parties said and their stance. Because if neither the president went through the proper channels nor he considered the recommendations this decision shall be unconstitutional. Period.

Now, let's consider some of the counter arguments against this Supreme Court trial. Here are a few common arguments favouring President’s decision. 

1.          How credible is Maheshwaran’s statement? 

2.          Maheshwaran was a member of the Liberation Tigers of Tamil Eelam (LTTE). 

3.          LTTE did much worse than this during the civil war. 

4.          LTTE leaders who committed tens of hundreds of crimes are free and in politics. 

5.          It was a war. They did what they had to do! 

Let’s dissect this one by one:

1. Credibility of Maheshwaran’s statement. 

It was contended by the Presidential Counsel on behalf of the Accused-Appellant. Overwhelming tangible evidence to correlate his story to actual events and minimal discrepancies seen during the trail made his statement viable and credible. Even the minor discrepancies seen during the trial were attributed to the translational bias, bias of learning new events over the course of the trial and psychology behind the turmoil faced by Maheshwaran. 

The 342 of the penal code defines assault as “whoever makes any gestures por any preparation, intending or knowing is to be likely that such gesture or preparation is about to use criminal force to that person, is said to commit “an assault”. 

2. A member of the LTTE

There has been no evidence to prove this claim.

3. LTTE did worse.

Yes. LTTE certainly did worse creating horror and agony across the country over decades. Suicide attacks, assassinations, Human Rights violations and many more. But, the fact that LTTE did worse than Sri Lanka Army (SL Army) would not absolve an army officer to repeat a similar act, because it’s for God’s sake a legal army force, whereas LTTE was deemed terrorist organisation even though for the most unfortunate reason they were considered the sole representatives of Tamils in Sri Lanka. LTTE was labelled as a terrorist organisation not only in Sri Lanka but also internationally in over 30 countries around the globe.  

After all, what did we as a nation, do so wrong for LTTE to become the sole representative of the rights of some Tamils in Sri Lanka? Something to think about during the lockdown.

If you are still not satisfied with these explanations, think why there is a Military Police? Why there is a Military Court or Court Martials in Sri Lanka? Why the SL Army did not employ certain tactics of the LTTE such as suicide bombs? Do you think that they could not brain wash Sinhalese boys/ girls to commit suicide for “the common good” or “notoriety”? 

4. LTTE members are now in democratic politics 

President Sirisena pardoned Sea Tigress Murugesu Bahirathi in 2015 and Kumaran Pathmanathan was set free as there was no evidence to convict. To make things worse Karuna Amman who killed scores of civilians and over 700 surrendered police personnel was never produced in a Court of Law. In other words, people argue why there are step mother treatments to Sinhalese soldiers. 

These are quite valid statements. Incident of Murugesu Bahirathi and Kumaran Pathmanathan took place during Marithripala’s time which certainly calls for re-evaluations. The case of Karuna Amman was a result of political meddling and in my opinion, it was possible as a result of the broken legal system in this country. Those people who are connected, affluent are given a different treatment. Do you think that the solution lies in the release of a convicted criminal? Two wrongs do not make a right.

Nobody needs justice or right words in the eyes of NGOs or so called “international pressure”. Because these individuals/ representatives most often don’t have the moral high ground to standby their creed as a result of what happened in their own countries/ territories. There are plenty of examples with the British, Americans, Australians and the French if you bother to look up. Think about a hypothetical reparation lawsuit against the United Kingdom for thousands of Human Rights violations committed in Sri Lanka. But this doesn’t give the right to Sri Lanka to violate the rights of their own people.

5. It was a war!

Let’s take a look at the moral aspect of this story. If none of the arguments make sense to you so far, ask yourself the question, what if this happens to my family? Will I let the culprit free just because of whatever the circumstances he was facing as a soldier? Always remember, two wrongs don’t make a right! 

These questionable decisions of presidential pardon; including the Maithripala Sirisena's scandal, send a chilling message to the public that irrespective of the gravity of the offence, offenders, including the ones from the security forces will not be punished even if convicted by Law and that any crime or violence committed against the ethnic communities will go unpunished.

  

Let me share this with you. I respect Sergeant Sunil Ratnayake for coming fourth to battle a losing war in the year 2000 (even though there are hundreds of unanswered questions about this war), which I could not do. Remember, The Rule of Law! Be you never so high, the Law is above you! 

I am deeply saddened by these events and I hope that someday Sri Lanka shall consider reconciliation a priority. I hope that resolve and tolerance would get us there someday. It will certainly be an imperfect journey; likely to be slow, but hopefully steady.

Samandika Saparamadu

6 April 2020