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Pardoning Sunil – A response

Image courtesy Newswire.lk

Two significant incidents took place on 26 March 2020. Sri Lanka recorded 102 confirmed Covid-19 patients; and President Gotabaya Rajapaksa granted a presidential pardon to Sunil Rathnayake, former Army Staff Sergeant and convicted  murderer. The severity of the former perhaps strategically, provides cover to the significant implications of the latter. While regional and global media have been vocal about the pardon, local media is largely silent.

Groundviews reached out to a few key individuals to record their responses to the Presidential pardon and the larger sociopolitical concerns it raises.

Asanga Welikala, Senior Researcher CPA and Director at Edinburgh Centre for Constitutional Law questions the legality of the decision:

The presidential pardon granted in this case raises two questions. The first is why it was any priority during a pandemic to grant this particular pardon, given the horrific facts of the case and that the prisoner’s conviction had been upheld by the Supreme Court after a full process of appeals. There is no appearance of the slightest miscarriage of justice in this case. Secondly, the Constitution lays down a specific procedure for the grant of pardons to those convicted of capital offences. This requires a report from the trial judge, the Attorney General’s advice, and a recommendation from the Minister of Justice, before the President is to exercise the power of pardon. This procedure, involving multiple decision-makers across the judiciary, the official bar, and the political executive, is there to ensure that the President’s exercise of this power is done with the greatest possible caution and careful consideration. It is there to ensure the integrity of the criminal justice system and to guard against abuse in the grant of pardons. As in previous cases (most recently, President Sirisena’s pardon for Ven. Gnanasara), there is little public evidence to show that this procedure has been followed in terms of the letter and the spirit of the Constitution. These are the two reasons why this pardon has proved controversial.

Bhavani Fonseka, Senior Researcher at the Center for Policy Alternatives links the legal concerns of the pardon with the recent lobbying by Civil Society Organizations in light of covid19:

Disappointed that the President pardoned Sunil Ratnayake who was convicted of a gruesome killing of several Tamil civilians in Jaffna. His conviction was affirmed by the Supreme Court in 2019, sending a clear sign that due process had taken its course and both the trial court and the highest court in Sri Lanka noted his guilty in the incident. This case was a rare moment when victims finally witnessed the delivering of justice within a system that faces many obstacles and delays. The President has in effect through his action confirmed that justice in Sri Lanka will remain elusive for many victims and entrenched the culture of impunity in Sri Lanka.

Civil society has called for prison reforms, with the call receiving greater urgency in the context of COVID19. The President has at present appointed a committee to look into this matter. The timing of the present pardon raises questions as to whether despite a process in place and seeming interest to address practical issues in prisons, the President goes ahead with a pardon of a person who is a convicted criminal.

However, the timing of this pardon is not a coincidence, according to Thyagi Ruwanpathirana, Researcher with Amnesty International:

It’s ironic that while many concerned civil society actors were trying to engage with government and make suggestions on how to ease prison crowding to prevent the spread of COVID19 within prisons by releasing amongst others, those who can’t afford bail, those in for minor offences, the terminally ill and the old, a convicted murderer of 8 Tamil civilians, was pardoned and walked free. The rest are still behind bars.

That the government chose this time of crisis to release Sgt. Sunil Rathnayaka is no coincidence. The pardon was rumoured for months, ever since President Gotabaya took office since it was one of his campaign promises. To leverage some of the good-will directed at the Army around COVID19 towards releasing a convicted soldier – is deliberate. That the release wasn’t followed by the usual media alerts – is deliberate. That concerned citizens cant protest in the streets or challenge the pardon in courts right now amid a curfew – is deliberate. That the spin-doctors, including the State media, are already suggesting that the prosecution was part of a witch-hunt against ‘war heroes’ during the previous government, is also deliberate. We’ve seen some of these same tactics used around Prageeth Eknaligoda’s enforced disappearance.

Meanwhile, fact remains that 8 people including 3 children, one aged 5, were brutally murdered and no justice commensurates the crime. If there are no credible or reliable remedies for such heinous crimes locally, where Executive Presidents use their powers arbitrarily despite court decisions upheld by the highest court in the country, are we surprised that there is a lobby for international justice?

While Thyagi Ruwanpathirana raises a question that we must all answer, Ruki Fernando warns of a future where this distrust and disconnect between the public and the governing figures would grow:

Crimes by the military are many in Sri Lanka – almost as if the military uniform is a license to rape, kill, abduct citizens. Accountability for crimes by the military is rare – the killing and rape of Premawathi Manamperi in 1971 in Katharagama, the abduction of students in Embilipitiya in 1980-1990, and the massacre of 8 civilians including children in Mirusuvil (Jaffna district) in 2000 are some of the rare examples where soldiers were punished by courts after lengthy trials. The pardoning of the soldier convicted for the latter is a slap in the face of eyewitnesses, investigators, prosecutors, judges and the victims’ families.

Right now, there are trials and habeas corpus cases where accused and respondents are Army and Navy men. This pardoning sends a negative signal to other victims’ families and survivors pursuing cases where the accused are Army and Navy, as well as witnesses, investigators, prosecutors and judges involved.

It is even more terrible that this pardon comes as the whole country (and the world) is battling the deadly coronavirus. Now we in Sri Lanka also have to contend with a cold-blooded, dangerous murderer roaming free.

The vulnerability of prisoners, many of whom are imprisoned due to minor charges or because of their inability pay bail, has been repeatedly highlighted by Civil Society Organizations in the recent weeks (refer to this letter to the President and other authorities and this article on protecting prisoners from the coronavirus). In the midst of this, the release of a convicted murderer, one whose release is closely linked with the ascension to power of Gotabaya Rajapaksa (detailed references made in this article by Ambika Satkunanathan), only tarnishes the reputation the current government has built with the proactive tackling of a global pandemic. Considering that “Free Sunil” Facebook page has proven to a fertile ground for hate speech, especially racially-motivated hate speech, this move foreshadows darker times.

While the supporters of Sunil Ratnayake cheer his homecoming, and speak of the daughter finally being able to have a father, Maatram Editor Selvaraja Rajasegar words the situation perfectly: “Came home after killing a child of daughter’s age”.

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