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‘What physicians say about consumptive illness is applicable here: that at the beginning, such an illness is easy to cure but difficult to diagnose; but as time passes, not having been recognised or treated at the outset, it becomes easy to diagnose but difficult to cure.’
The Prince, Machiavelli
Sergeant Sunil Rathnayake was convicted in 2015 of the murder of eight Tamil civilians who were internally displaced, including three children of five, thirteen and fifteen years old, in Mirusuvil, Jaffna on 19 December 2000 while on active duty. It was reported on 26 March 2020 that Rathnayake, whose sentence was upheld by a five-judge bench of the Supreme Court of Sri Lanka in April 2019, was pardoned by President Gotabaya Rajapaksa. The pardon, about which rumours had been circulating for many months, took place amid a pandemic, when a state of exception exists and normal life, albeit not normal law (at least not at present), has been suspended. It would be pertinent to recall a few key elements of the decision of the Supreme Court upholding the conviction prior to a discussion of the decision to pardon.
Regarding the method used to murder the eight persons, including the three children, the Court states, ‘The doctor had observed a solitary cut injury on the front of the neck about 2 inches deep, on each of the deceased and had opined that death had resulted due to shock and haemorrhage resulting from the cut injury on the neck’.
The Court proceeds to note the care taken by those who committed the murders to avoid detection by pointing out that, the ‘person or persons who were responsible for the killings had been cautious in tactically resorting to a silent mode of killing quite unlike the use firearms which would have caused alarm to the warring factions, given the volatility in the area at the relevant time. Thus, the learned DSG submitted that it is a factor indicating that the persons responsible for the killings were well aware of the war situation and had taken precautions to avoid making any noise’.
In relation to the credibility of the witness, the Court states that ‘there is not even a hint that Maheswaran had any reason to implicate the Accused-Appellant or other accused falsely’.
Setting out the means through which the bodies of the murdered persons were recovered, i.e. that it was Rathnayake who pointed out the location of the buried bodies, the Court said that, ‘Based on the statement made by the accused-appellant (Rathnayake), this witness along with a team of Military Police officers had visited the area where the incident was alleged to have taken place. Upon reaching the location with the directions given by the 1st Accused-appellant, they had walked through a shrub jungle and the accused-appellant had pointed out a location… Accordingly, Police had arrived at the scene headed by Senior Superintendent of Police Kankesanthurai followed by the Magistrate who ordered the police to dig the area pointed out by the accused-appellant. In the process, 8 bodies had been recovered and relations had identified them as those of the deceased referred in the murder charges on the indictment. The District Judge of Chavakachcheri Mr Premashankar, in his evidence, had said that it was the Accused-Appellant and Major Soyza who pointed out the location from where the bodies were unearthed’.
Indicating that all those who were responsible for the murders were not held accountable, the Court highlights 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’.
Privilege and prejudice: How are pardons granted?
Pardons allow for clemency in the event there has been a miscarriage of justice and/or there are extenuating circumstances that would make it appropriate for a pardon to be granted. For instance, to acknowledge that certain crimes and offences may be the result of various social factors that require the convicted person’s circumstances and the context of the offence to be taken into account. The President has the sole discretion whether to pardon as provided by the Constitution, and pardons can be granted to all offences, crimes and categories of prisoners. When pardoning a condemned prisoner by way of special pardons, according to Article 34 (1) of the Constitution:
- The President must request the trial judge for a report and forward that report to the Attorney General with instructions that the Attorney General’s advice is sent to the Minister of Justice along with the trial judge’s report;
- The Minister of Justice then forwards the report to the President with his/her recommendations.
In the interest of transparency, the public needs to know whether this process was followed in the case of Rathnayake, and if so, the reports should be made public. 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. Further, in an interview telecast on Hiru TV, Rathnayake’s wife’s mentions that the pardon was ‘promised’ (she used the Sinhala word prathikgna/ප්රතිඥ්ඥා) by President Rajapaksa four years ago, and goes on to thank state officials, who legally have no role to play in the process of granting a presidential pardon, for helping her secure the pardon.
Historically, in Sri Lanka, special pardons have been granted by the executive in an arbitrary and non-transparent manner that prima facie indicate no objective standards are used in the decision-making process. Hence, special pardons should be standardized and become only one of the means through which a person can be released early from prison, after the purpose of incarceration, i.e. rehabilitation, is achieved.
In this regard, it would be useful to learn from India where the Supreme Court has the power to exercise judicial review over the decisions of the executive with regards to what they refer to as mercy petitions, as held in 1980 in the case of Maru Ram v Union of India and upheld in Dhananjoy Chatterjee alias Dhana v State of West Bengal, Swaran Singh v State of U.P, K.M. Nanavati v State of Bombay. The Indian Supreme Court in these decisions held that the pardoning power of the executive is administrative and an act of grace, and cannot be claimed as a matter of right. However, the Supreme Court reiterated that the Court has the authority and the obligation to review whether the executive has arbitrarily exercised these powers. These decisions led to the landmark decision of the Supreme Court in 2006 in Epuru Sudhakar & Anr v Govt. Of A.P. & Ors, which set out the grounds for challenging the decision of the President in accepting or rejecting a mercy petition, as follows:
- The order has been passed without application of mind;
- The order is mala fide;
- The order has been passed on extraneous or wholly irrelevant considerations;
- Relevant material has been kept out of consideration; or
- The order suffers from arbitrariness
Additionally, in 2005, President A.P.J. Kalam on his own initiative set out guidelines for reviewing mercy petitions, thereby standardizing the exercise of executive powers with regards to mercy petition granted to him as the President of the Union of India, by the Constitution of India.
In addition to the process, or lack thereof, discussed above in granting the pardon to Rathnayake, the more important question is whether the pardon should have been granted at all. As the Supreme Court decision illustrates, the murders were cold-blooded, and time and care were taken to commit them in a manner that would avoid detection, which is indicative of premeditation. Further, there was no remorse expressed by the convicted person, who in his Dock Statement had denied any involvement in the murders despite the fact it is he who pointed out the place where the bodies were buried. The rejection of his Dock Statement by the Trial-at-Bar was affirmed by the Supreme Court. Moreover, negligible action has been taken by the state to prosecute those accused of human rights violations during the thirty-year internal armed conflict in Sri Lanka. In this context, since 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 holding those responsible for conflict-related violations accountable. Nor is it conducive to dealing with the past and re-building trust between the state and the Tamil community, or inter-community relations.
Identity and vulnerability
In any society, groups of persons have been and continue to be subject to historical, and/or systemic and structural discrimination, and hence are more vulnerable than others to exploitation and violence. Minorities in Sri Lanka would fall within this category. Their vulnerability means that these persons 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.
In the instance of the Mirusuvil massacre, those who were murdered were Tamils who had been displaced due to the internal armed conflict, most likely had experienced displacement multiple times, due to which they might have lost property and livelihoods, and thereby economic security. The fact they returned to their properties every day to gather whatever produce they could and returned by 4 p.m. illustrates not only the economic insecurity they experienced, but also the insecurities they experienced regarding their physical security. Therefore, the aforementioned multiple elements of their identity placed them in a position where they were vulnerable to violence. Illustrating the continuum of discrimination, marginalization and vulnerability, these factors continued to adversely impact the families’ struggles to hold the perpetrators accountable and obtain justice. Identifying the ethnicity of the victims in the very first line of this article was hence a conscious decision to illustrate the multiple vulnerabilities created by certain identities.
Even two decades after the murders we find that the pardoning of the perpetrator, without adherence to any visible signs of due process on the part of the executive, or remorse or rehabilitation of the perpetrator, caused little public outrage. The lack of public outrage begs the question of whose life is worthy of being mourned. As Judith Butler states, ‘“we” are in these times of war is by asking whose lives are considered valuable, whose lives are mourned, and whose lives are considered ungrievable. We might think of war as dividing populations into those who are grievable and those who are not. An ungrievable life is one that cannot be mourned because it has never lived, that is, it has never counted as a life at all. If persons feel these eight lives do not matter it could be because, as Butler identifies, ‘what we feel is in part conditioned by how we interpret the world around us; that how we interpret what we feel actually can and does alter the feeling itself’. Hence, if the murdered persons were viewed or painted as terrorists merely by the fact they lived in the North or because they were Tamil, then their lives would also not be counted ‘as a life at all’. This is affirmed by the 2015 study ‘Saving Sunil’ published by the Centre for Policy Alternatives, which found that one of the strategies used by a Facebook page titled Saving Sunil (Rathnayake) was hate speech targeted at minorities, which stereotyped Tamils and equated them to terrorists thereby justifying the murders.  Casting the victim as someone not deserving of empathy nor of being mourned, is a way of making the crimes perpetrated against them acceptable or as not a crime at all, but a heroic act.
Citizenship in the time of a pandemic
As Yuval Noah Harari stated in his recent piece on the impact of COVID 19 on democracy, ‘the coronavirus is thus a major test of citizenship’. During the pandemic when governments are introducing measures which restrict civic rights but are justified as necessary to stem the pandemic, the right to free speech might be one of the first casualties, particularly speech that challenges or critiques state action or inaction.
In Sri Lanka, the ability of a person to exercise their rights freely has been restricted during different periods in our history. One such right that has been subject to restrictions is the right to free speech. However, we have to acknowledge that even during repressive times, the ability to speak truth to power, the ability to criticise the decisions of the executive etc., which are all integral parts of exercising one’s citizenship, have been experienced by different persons and groups differently, depending, once again, on their identity and privilege.
The discourse on the pardon, including the silences, i.e. who speaks, who stays silent and what is said by those who speak, is illustrative of the fact that various socio-economic and political elements impact free speech. For instance, I’ve had conversations with persons who are deeply concerned about the pardon but will not speak publicly due to fear of reprisals. I myself have been cautioned by well-meaning friends and colleagues to be mindful of what I say on this issue as I might be portrayed as a traitor, anti-national etc., all labels that render it acceptable to attack a person so labelled. Whether there can be an open and free discourse on the use of executive power without reprisals or adverse consequences would be a test of whether there is space available for dissent, during and post-pandemic, and whether we are able to freely and fully exercise our citizenship.
 Sergeant Ratnayake was sentenced to death, a punishment which has been recognized in international human rights law as torture and has to be abolished. This article shall not discuss the reasons the death penalty should be abolished but will focus only on the use of the Presidential pardon.
Judith Butler, ‘Precariousness and Grievability- When is Life Grievable’, 16 Nov 2015 at https://www.versobooks.com/blogs/2339-judith-butler-precariousness-and-grievability-when-is-life-grievable
 Roshini Wickremesinhe & Sanjana Hattotuwa, ‘Saving Sunil: A study of dangerous speech around a Facebook page dedicated Sgt. Sunil Rathnayake’, Centre for Policy Alternatives, 2015 at https://www.cpalanka.org/wp-content/uploads/2015/10/SS-Final-RW-SH-formatted.pdf
 Yuval Noah Harari, ‘The World After Coronavirus’, 20 March 2020 at https://www.ft.com/content/19d90308-6858-11ea-a3c9-1fe6fedcca75