ONE: Ambika Satkunanathan: “Presidential Pardon emphasizes the State’s Privileges and the Denial of Justice
Lawyer, human rights advocate and former Commissioner of the Human Rights Commission of Sri Lanka, Ambika Satkunanathan, questioned the basis for the presidential pardon of Sunil Rathnayake and the legitimacy of the process, using the case to underline the challenges Tamil families’ face in holding perpetrators accountable and obtain justice.
Sri Lanka’s president Gotabaya Rajapaksa pardoned sergeant Sunil Rathnayake, who was sentenced to death for killing eight Tamil Internally Displaced People (IDPs) in Mirusuvil, Jaffna on December 2000.
Despite being found guilty by the Colombo High Court in June 2015, and having his sentence upheld by the country’s highest judicial Supreme court in April 2019 with a compelling witness testimony and evidence, Rathnayake was given an unwarranted pardon.
The sanctioning of presidential pardons have been reserved for situations where the convicted person has been unfairly or wrongly convicted and a process following the Article 34 (1) of the Constitution needs to carried out. Historically, presidential pardons have been granted by the executive in an “arbitrary and non-transparent manner” and instead “special pardons should be standardized,” argued Satkunanathan.
The process should be ‘transparent’ and should be disclosed to the public if this process was followed for Rathnayake’s case. “This is particularly important since Rathnayake was released less than a year after his sentence was upheld by the Supreme Court, which renders any rehabilitation within such a short period improbable,” added Satkunanathan.
Satkunanathan questions the impartiality of the Sri Lanka justice system, identifying the privileges held by those in governance and the discrimination faced by “vulnerable” minority groups in Sri Lanka.
This can be highlighted by Rathnayake’s wife thanking both President Rajapaksa for his ‘promise’ to give Rathnayake a pardon and state officials, with the latter having no legal authority to influence the presidential pardon, stated Satkunanathan.
Minority groups in Sri Lanka, namely Tamils, “are unable to exercise and enjoy their rights, which exposes them to potential further violations and restricts their ability to seek justice for the violations they experience.” Satkunanathan explains the victims of the Mirusuvil massacre were no different as they faced “economic and physical insecurities” that positioned them in a position where they were vulnerable to violence.
Satkunanathan stressed that there has been a lack of public outrage caused by the pardoning, despite the lack of transparency and validity in the process of the pardon. She asks whether Tamils lives are “worthy of being mourned” and added that the victims of the massacre were labelled as “terrorists merely by the fact they lived in the North or because they were Tamil.”
By shifting the blame onto the Mirusuvil victims by casting them as terrorists, it gives the notion they are “someone not deserving of empathy nor of being mourned” and justifies the crimes of Rathnayake as a “heroic act.”
Satkunanathan expressed her concern at the measures implemented by the governments to restrict civil rights and free speech – “particularly speech that challenges or critiques state action or inaction” – under the guise of stemming the pandemic.
However, she adds that free speech has been impacted by several factors such as various socio-economic and political elements, but the ability to criticise the decisions of the executive and draw criticism, is dependent on a person’s identity (whether they are Tamil or not) and privilege. Despite the fear of reprisals from speaking out, Satkunanathan has maintained the importance of challenging the states’ decisions as a means of “exercising one’s citizenship.”
His victims – which included children, amongst who was a five-year-old whose body showed signs of torture – were meticulously killed by him and a group of others. Rathnayake vehemently denied involvement in the murders in his Dock Statement and showed no remorse for his actions, making it a greater injustice that such a pardon was allowed.
The court has concluded that it was “highly improbable if not impossible for a single person to commit all these acts” and it was indicative of a premeditated massacre. Rathnayake was the only one to be convicted for the crimes and to undo the little justice won adds to the “negligible action that has been taken by the state to prosecute those accused of human rights violations during the thirty-year internal armed conflict in Sri Lanka,” emphasised Satkunanathan.
“This is one of the rare instances of a perpetrator being made accountable, the pardon doesn’t serve the interests of justice, particularly in relation to holding those responsible for conflict-related violations accountable,” she added.
TWO : News Item in Tamil Guardian, January 2020, entitled “Sri Lanka to release soldier from prison for massacre of Tamils”
The Sri Lankan government is reportedly set to release a soldier who was sentenced to death over the massacre of eight Tamil civilians, according to an opposition parliamentarian who applauded the move.
“Now we have got information that the government has taken measures to release 34 members of the intelligence and Sunil Ratnayake, as mentioned during the Gotabaya Rajapaksa election campaign,” said UNP MP Ajith Perera.
“That is how a leader who does what they say works,” continued Perera. “Therefore I would like to extend my gratitude to president Gotabaya Rajapakse and Minister of Justice Nimal Siripala De Silva for taking this decision.”
It is unclear as to whether the soldier has actually been released as of yet, and whether he has received a presidential pardon.
Staff Sergeant Sunil Rathnayake was sentenced to death in 2015 for the murder of the 8 Tamils, including 2 children, in the town of Mirusuvil. The Tamils had been arrested by Sri Lankan security forces on the10th of December 2000. The following day their bodies were found in a mass grave with their throats slashed, according to the District Medical Officer’s post-mortem report. All but two of the bodies had been stripped naked. The youngest to have been murdered was a 5-year-old child.
The killings have since been dubbed the Mirusuvil massacre.
Ponnathurai Maheswaran, who managed to survive and escape from the army, testified in court and identified at least five of the soldiers responsible. After a lengthy court process only Ratnayake, a member of the military’s elite Long Range Reconnaissance Patrol (LRRP), had been sentenced. The other men were cleared of all charges.
As mentioned by Perera, current Sri Lankan president Gotabaya Rajapaksa made repeated pledges to release soldiers that had been convicted of rights abuses. His regime has also vowed not to abide by a UN Human Rights Council resolution that mandates a hybrid accountability mechanism to prosecute those responsible for rights violations.
The case of Rathnayake, one of the few convictions of Sri Lankan soldiers for abuses of Tamils, drew particularly widespread support amongst the Sinhala south.
At the time of the 2015 conviction, Together Against Genocide released a statement welcoming the sentencing, but added “much more” needed to be done to end impunity on the island.
“Even though the war has ended, the racial hatred is far from resolved,” TAG said.
“The open support for the convicted soldier as a ‘War Hero’ clearly shows that racial tensions are still extremely high. This racial hatred prevents justice for the Tamil victims of this and other massacres. There is a clear reluctance among the majority ethnic Sinhala population to hold SLA forces responsible for their war crimes.”
The names of those killed in the massacre are listed below.
Kathiran Gnanachandran (35)
Baskar Gnanabasakaran (19)
Sellamuttu Theivakulasingham (31)
Vilvarajah Pratheepan (15)
Sinniah Vilvarajah (41)
Nadesu Jeyachandran (21)
Vilvarajah Prasath (5)
Maria Abi-Habib and As Pandemic Rages, Sri Lanka’s President Pardons a War Criminal,” 28 March 2020, https://www.nytimes.com/2020/03/28/world/asia/sri-lanka-war-crimes-coronavirus.html?auth=link-dismiss-google1tap
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