Neville Ladduwahetty, in The Island, 8 April 2020, where the title reads “Pardoning of former Corporal Sunil Rathnayake”
It is reported that President Gotabaya Rajapaksa has granted a pardon to former Corporal Sunil Rathnayake, who was convicted of murder, unlawful assembly and common intent by a Trial-at-Bar in 2015. On appeal, the judgment was upheld by a five Judge Bench of the Supreme Court. There is considerable reaction from the public both nationally and internationally for the decision taken by the President. As part of this reaction the Human Rights Commissioner of Sri Lanka (HRCSL) has written to the President, expressing ‘deep concern’ about the pardon granted in view of the seriousness of the crime committed. Having expressed concern, the HRCSL has gone on to state that while death sentence is mandatory for murder, they “would have been in agreement” had the President “commuted the death sentence to long term imprisonment given the serious nature of the offence”.
Before proceeding to comment on the measures adopted and the concerns expressed, it is appropriate that there is an understanding of the background to the events that precipitated the judgments.
Summary of background material
On December 19, 2000, eight villagers bicycled to Mirusuvil with a five-year old ‘toddler’. When they were about to leave at around four in the afternoon, two military personnel confronted them. They were asked to kneel and questioned. One soldier left and returned with four others. They were blindfolded and assaulted. Maheswaran, the sole survivor, lost consciousness. When he came around, the others were not to be seen. His blindfold had come off and he was taken to a location close to a cesspit. He noticed patches of blood on the slab. Fearing for his life he pushed two soldiers who had come to blindfold him, and ran for his life. On December 24, 2000, Maheswaran along with Major de Soyza of the military police, Maheswaran’s parents, members of EPDP and the Gramasevaka visited the cesspit which still had blood patches. When the slab was removed they found body parts of a goat and a reptile. While they were there, a few military personnel approached them.
Major de Soyza was entrusted with the task of investigating this incident. In a nearby building he found about 20 army officers of the special operations of the 6th Gajaba regiment, in occupation. Major de Soyza had requested Sgt. Ranasinghe who was in charge to summon those responsible for slaughtering the goat. Two soldiers had come forward. When all of them neared the cesspit, Maheswaran got deeply agitated and identified the two soldiers who came forward as those who assaulted them. The two soldiers became restless and were reassured by the Military Police that there was no cause for alarm. Major de Soyza identified the two soldiers as Corporal Rathnayake and Private Kumarasinghe.
As the search continued, Corporal Rathnayake had pointed out two areas close to the cesspit that had been covered with loose soil and twigs. Before proceeding further, Major de Soyza obtained a Magistrate’s order to search the area during which eight bodies were unearthed. This discovery prompted Major de Soyza to take the five soldiers including Corporal Rathnayake and Private Kumarasinghe into custody.
All five were charged with murder of the eight civilians, unlawful assembly and common intent as per sections 296, 146 and 32 of the penal code. However, the judgment by the Trial-at-Bar convicted only Corporal Rathnayake and acquitted the other four. Inexplicably, Private Kumarasinghe who was arrested along with the Corporal was not indicted.
Supreme Court judgment
The case was heard by a High Court Trial-at-Bar. The verdict of the Court was that one soldier namely, Corporal Sunil Rathnayake, was guilty of murder and sentenced him to death as required by law. The 2nd to 5th accused were acquitted. The verdict by the High Court in respect of Corporal Rathnayake was based on circumstantial evidence established based on credibility of the evidence given by the sole survivor, Maheswaran, while the other four were acquitted due to the inability to establish their identities to the extent required by law.
Following the High Court judgment, Corporal Rathnayake appealed and the case was heard by a Bench of five Supreme Court Judges. The Supreme Court while upholding the judgment of the High Court, made the following comment. “It is clear that the acquittal of the 2nd to the 5th Accused had resulted not due to disbelieving the evidence of Maheswaran, but due to the failure on the part of the Prosecution to establish the identities of the 2nd to the 5th Accused to the degree required by law”. Continuing, the Court held that “the prosecution had failed to establish that there was an unlawful Assembly with the common object of committing Assault on Raviwarman within the meaning of Section 342 of the Penal Code. Thus, counts 1 to 10 of the indictment must necessarily fail. Accordingly, I set aside the conviction of the Accused-Appellant (former Corporal Rathnayake) on counts 1 to 10. What remains are counts 11 to 19 which are based on vicarious liability or common intent”.
Having set aside nearly half the indictments, the Supreme Court went on to state: “When one considers the participation of the Accused-Appellant coupled with the evidence with regard to the participation of the others, it is clear that the Accused-Appellant is not only liable to the act committed by him, but also acts committed by others who were with him as well by virtue of Section 32 of the Penal Code. “There are significant features in this case that direct me to conclude that all persons involved had acted in furtherance of common intention …This assault appears to have commenced simultaneously indicating fusion of minds and a common intent”.
Section 32 states: “When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”
Prior to agreeing with the conclusions reached by the High Court Trial-at-Bar the Supreme Court stated: “It is highly improbable if not impossible for a single person to commit all these acts. Thus, it is reasonable to infer that these acts have been committed by more than one person…Considering the above the irresistible inference that could be drawn is that it was the Accused-Appellant and the group of men who had inflicted the fatal injuries to the deceased and from the nature of the injuries it can be concluded that the injuries were inflicted with the intention of causing their deaths. Thus, I conclude that the prosecution has established the counts of murder (11 to 18) and the count of causing hurt to Maheshwaran, count no. 19 of the indictment.”
What could the public make out of the judgments of the Courts? We have a situation where out of five accused four are acquitted on grounds that their identities cannot be established and the one man whose identity is known is found guilty of all the crimes. However, the Court also admits that the one man, namely, former Corporal Rathnayake by himself could not have committed all the acts. Under the circumstances, to sentence the Corporal to death or to commute him to life imprisonment while the others who presumably participated in the crime are acquitted, presents issues that cannot be reconciled. Such a paradox implies that the system has failed.
Presidential power to pardon
The perception reflected in the letter by the Human Rights Commission of Sri Lanka to the President is that the President is the sole authority responsible for pardoning an offender condemned to death by a Court. This is not the case. The procedure involved, is stated in Article 34 (1) of the 1978 Constitution. The President acts on the recommendations of the Minister of Justice.
Article 34 (1) states: “Provided that where any offender shall have been condemned to suffer death by the sentence of any court, the President shall cause a report to be made to him by the Judge who tried the case and shall forward such report to the Attorney-General with instructions, that after the Attorney-General has advised thereon, the report shall be sent together with the Attorney-General’s advice to the Minister in charge of the subject of Justice, who shall forward the report with his recommendations to the President.”
It is therefore clear that the opinion of the Minister of Justice is vital, and that the intent per the Constitution is that the President does not act unilaterally. Furthermore, despite the fact that a death sentence by a Court is reached after diligent and deliberate evaluation of all facts, a further opportunity is given to the Minister of Justice by Article 34 (1), because the sentence of death once executed cannot be recalled. Consequently, most civilized societies explore all avenues before taking irreversible decisions when it comes to punishment by death. This means not to rely solely on decisions of Courts whose responsibility is to abide within the limits of Rules codified by Law. Therefore, the emphasis given by the HRCSL to the decisions of the Trial-at-Bar and the Supreme Court are misplaced for an institution that is responsible for Human Rights.
In view of the irrevocable nature of what is at stake when it comes to a death sentence, the task before a Minister of Justice is daunting. Therefore, before the Minister of Justice forwards his recommendations to the President, he is entitled to raise certain basic question that would occur to any normal questioning layman. For instance, one obvious question is that if five suspects are charged on identical counts, why is one sentenced to death while the other four are acquitted? Another is that if only Corporal Sunil Rathnayake is guilty, it means that he is solely responsible for killing all eight civilians, digging a large enough hole to bury them all in one place, and digging another to bury the bicycles; a possibility the Courts also found as ‘highly improbable’. Therefore, for former Corporal Rathnayake to carry the guilt of all five and either face the death sentence or be imprisoned for life is a paradox arising from a failure of the system for which the Corporal should not be held accountable. These complex issues are bound to impact the recommendations of the Minister of Justice to the President.
Five soldiers were charged individually under Sections 146 and 296 of Sri Lanka’s Penal Code for having unlawfully assembled with the common intent of murdering nine civilians that included a five-year old toddler on December 19, 2000 in Mirusuvil, Sri Lanka. Section 296 states: “Whoever commits murder shall be punished with death” and Section 146 states: “If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly is guilty of that offence”.
The Attorney General indicted the five persons on counts of 1 to 10 under Sections cited above and on counts 11 to 19 under Section 32 of the Penal Code. The High Court Trial-at-Bar found former Corporal Sunil Rathnayake guilty and acquitted the other four because the Prosecution could not establish their identities to the extent required by law. The Corporal appealed to the Supreme Court. The Supreme Court set aside counts 1 to 10 and charged him on counts 11 to 19 which according to the Court are based on “vicarious liability or common intention”.
The Supreme Court concluded “that the learned judges of the Trial-at-Bar were correct in coming to the conclusion that the Accused-Appellant was guilty on counts 11 to 19 (inclusive of both counts)”. The Supreme Court also referred to the fact that “it is highly improbable if not impossible for a single person to commit all these acts. Thus, it is reasonable to infer that these acts have been committed by more than one person,” and thus the “irresistible inference that could be drawn is that it was the Accused-Appellant and the group of men who had inflicted the fatal injuries to the deceased.”
Such paradoxes are bound to influence the Minister of Justice when he forwards his recommendations to the President. If it is ‘highly improbable’ for a single person to have committed all the acts without the participation of others who incidentally, were ‘acquitted’ earlier by the High Court, the only rational explanation for this paradox is that such contradictions are manifestations of a failure of the system for which the Corporal cannot be solely held accountable. Under these circumstances, pardoning the only survivor of these multiple gruesome acts is the only measure possible, since imposing a death penalty or imprisoning former Corporal Rathnayake for life, makes him a victim of a system that sets up such paradoxes.