By C.A. Chandraprema –
C.A. Chandraprema
Local and international NGO quarters are up in arms over the presidential pardon extended to a former soldier Sunil Ratnayake who had been convicted and sentenced to death over an incident in the year 2000 where eight Tamil persons including a five year old child had been killed in Mirusuvil in Jaffna. The Office of the UN High Commissioner for Human Rights said in a statement that the release of this individual was an affront to the victims who lost their lives in that incident. The Al Jazeera report on this matter explained that Sunil Ratnayake had been sentenced to death for ‘slitting the throats’ of Tamil civilians including four children. Amnesty International, Human Rights Watch, The Sri Lanka Human Rights Commission, and the International Commission of Jurists had also condemned the release of this convict. Furthermore, 22 foreign funded NGOs in Sri Lanka including the Centre for Policy Alternatives had issued a statement saying among other things, that the President has given his blessing to a ‘cold-blooded killer’.
Many of those who have condemned the release of this convict had also pointed out that his conviction by a High Court Trial at Bar had been unanimously upheld by a five member bench of the Supreme Court. The statements issued in relation to this presidential pardon would lead one to think that it has been proven in court that the convict in question had personally killed or participated in the killing of the eight victims. That is what one normally expects when talking about a murder conviction. The judgment however does not state anywhere that there was any evidence to show that Sunil Ratnayake had personally killed any of the victims. The facts of this case which emerge from the Supreme Court judgment are as follows: In April 2000 the LTTE had overrun Elephant Pass and the army had had to reposition their defence lines. Due to shells falling in the vicinity, the villagers of Mirusuvil had to abandon their homes and seek refuge elsewhere.
However, they visited their abandoned properties once in a while to clean the places and to collect whatever produce that they could make use of. On the 18th December 2000, an army unit was deployed in the Mirusuvil area. On the 19th December, 2000, a group of villagers – Raviwarman, Thaivakulasingham, Wilvarasa Pradeepan, Wilvarasa Sinniah, Nadesu Jayachandran, K.Gnanachandran, G.Shanthan, Wilvarasa Prasad and Maheshwaran had come to Mirusuvil to visit their respective houses. By 4.00 in the afternoon, they were getting ready to go back when they were stopped and questioned by some soldiers. Raviwarman who had lost his left arm in a shell explosion when he was a child could speak some Sinhala had explained the reason for their presence in the area. The soldiers had then assaulted the villagers who were with him. Maheshwaran stated that he had been blindfolded with his sarong and assaulted and he had lost consciousness. After a while, however, he had regained his senses. At that point, two military men had carried him and tossed him over a fence. In the process his blindfold had got entangled with the barbed wire of the fence and had come off.
He had then been taken to a location where there was a cesspit. According to Maheshwaran he had noticed patches of blood on the cesspit slab and also sensed some movements emanating from inside the cesspit. Fearing that the others who came with him had been harmed and that he too would face the same fate, he had pushed the two soldiers who approached to blindfold him again and had run for his life through the thicket clad only in his underwear. He had spent the night at a house of one of his aunts, about a quarter of a mile away. The following morning, on his way home, he had met his father who had come out looking for him and both of them had returned to their temporary residence at Karaweddi. They had then complained about the incident to the EPDP office in the area. Maheshwaran had subsequently been admitted to hospital.
On the 22nd December he had left the hospital and had come home. On the following day he had been visited by military personnel who had questioned him about the incident. On the same day Maheshwaran accompanied by his parents, members of the EPDP, the Gramasevaka of the area along with the Military Police officers had visited the location of the cesspit. What they found inside the pit were parts of the carcass of a goat and a reptile.
Investigating the incident
Major Sydney de Soyza was in charge of the military police in the Jaffna region, and he too had been with the group visiting scene of the incident. On making inquiries he had come to know that about 20 soldiers of an Army Special Operations Unit were occupying a building in the vicinity. The Chief Officer of that Unit Sergeant Ranasinghe accompanied by several other soldiers had approached the location of the cesspit and witness Maheshwaran had suddenly shouted saying that two of the soldiers who came with Sergeant Ranasinghe were the soldiers who had restrained and assaulted him. The soldiers identified by Maheshwaran were Lance Corporal Sunil Rathnayake and Private Mahinda Kumarasinghe. The two army men had become restless and had shown signs of fear. Major de Soyza had then directed Major Premalal to question the two soldiers. The duo had been very restless, so much so that Major Premalal had to tell them that there was no reason for them to be so disturbed. Major Soyza had thereupon placed under arrest five soldiers inclusive of Lance Corporal Ratnayake and Private Kumarasinghe.
Based on a statement made by Lance Corporal Ratnayake, Major Sydney de Soyza along with a team of Military Police officers had visited the area again and Lance Corporal Rathnayake had pointed out a location which had loose soil covered with small branches. Then steps had been taken to inform the Police. The police had arrived at the scene headed by the SSP Kankesanthurai followed by the Magistrate who ordered the police to dig the area. The bodies of the eight victims had been recovered. Steps thereafter had been taken to have identification parades held where a number of military personnel who were suspected of committing the crime, were produced (13 in all). Five of them had been identified by Maheshwaran.
The Attorney General indicted the five persons so identified on 19 Counts. Count 1 was committing an offence punishable under Section 140 of the Penal Code as a member of an unlawful assembly with the common object of causing intimidation to Raviwarman. Counts 2,3,4,5,6,7,8 and 9 were committing the murders of Raviwarman, Thaivakulasingham, Wilvarasa Pradeepan, Wilvarasa Sinniah, Nadesu Jayachandran, K.Gnanachandran, G.Shanthan and Wilvarasa Prasad, an offence punishable under Section 296 of the Penal Code read with Section 146 of the Penal Code. Section 296 of the Penal Code states that whoever commits murder shall be punished with death. Section 140 states that members of an unlawful assembly shall be punished with imprisonment of either description for a term which may extend to six months, or with a fine, or with both and Section 146 of the Penal Code states that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, every person who, at the time of the committing of that offence, is a member of the same assembly is guilty of that offence.
Count 10 was causing hurt to Maheshwaran, an offence punishable under Section 314 of the Penal Code read with Section 146 of the Penal Code. Section 314 of the Penal Code states that whoever voluntarily causes hurt shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. Counts11 to 18 are again counts of murder in respect of the persons referred to in Counts 2 to 9, however the basis of liability under the said Counts is Common Intention articulated in Section 32 of the Penal Code and Count 19 again is the corresponding charge of causing hurt, referred to in Count 10, based on Common Intention.
What Section 32 of the Penal Code states is that 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. The High Court Trial-at-Bar acquitted the 2nd,3rd, 4th and 5th Accused, but convicted the 1st Accused Lance Corporal Sunil Ratnayake on all counts referred to above. On appeal, the Supreme Court unanimously set aside the conviction of Lance Corporal Sunil Ratnayake on Counts 1 to 10. What remained were Counts 11 to 19 which are based on the vicarious liability of common intention under Section 32 of the Penal Code. The SC also made the following observations:
· The entire prosecution case hinges on Maheshwaran’s testimony.
· This is a case where the court has to decide, mainly on circumstantial evidence.
· The acquittal of the 2nd, 3rd, 4th, and 5th Accused by the High Court Trial at Bar was due to the failure on the part of the prosecution to establish the identities of those Accused to the degree of proof required by law.
· However, the spontaneous identification of Lance Corporal Sunil Ratnayake by witness Maheshwaran at the scene of the crime (as recounted above) remains unassailed.
Section 32 of the Penal Code
On the basis of the above, the SC held that Lance Corporal Ratnayake is not only liable for the acts committed by him, but also for the acts committed by others who were with him as well by virtue of Section 32 of the Penal Code. When the deceased were seen last, they were detained by Ratnayake and the other Army personnel who were present. It was on that basis that the SC upheld the conviction of Lance Corporal Sunil Ratnayake on Counts 11 to 18 and on Count 19 of causing hurt to Maheshwaran. Thus it can be seen that Ratnayake was not convicted due to evidence indicating that he had personally killed the eight victims but on the basis of vicarious liability for the whole incident under Section 32 of the Penal Code. The principal witness Maheswaran accused Lance Corporal Ratnayake of assault but did not say that he had seen Ratnayake killing anybody or even holding a weapon which may have been used to kill the people concerned. Because the conviction has been affirmed on the basis of Section 32 of the Penal Code, there is a borderline element in this case.
Certain international and national parties whose interests are only too well known, have rushed to condemn the release of Sunil Ratnayake. However when President Maithripala Sirisena released an LTTE suicide cadre who had been convicted of complicity in a plot to kill him, that was welcomed as reconciliation. It is a well-known fact that the general idea prevalent among these interested parties is that members of the armed forces should be jailed and members of the LTTE released. The former for ‘accountability’ and the latter for ‘reconciliation’! This works out to be a neat arrangement whereby the local and international backers of the LTTE are able to punish those responsible for their defeat. The double standards applied to the release of convicted LTTE cadres on the one hand and convicted armed forces personnel on the other, is going to preclude the chances of success of any homegrown method of clearing up certain residual issues still remaining after the war.
On page 9 of President Gotabhaya Rajapaksa’s presidential election manifesto, it was stated that steps would be taken to either indict or release those who had been arrested on terrorism charges and had spent a long time in remand. This is obviously a reference to the small number of hardcore LTTE cadres still in custody. The government rehabilitated and released over 11,000 LTTE cadres who had surrendered with their weapons. If the government applied the vicarious liability provision in Section 32 of the Penal Code to these cadres, the likelihood is that many of them would be convicts by now. But the government chose not to prosecute the vast majority of LTTE fighters even though quite a number of them would be responsible for atrocities far in excess of the Mirusuvil incident. If the President is to ever actually implement what was said on page 9 of his manifesto in relation to the LTTE cadres still in remand, the pardoning of individuals like Sunil Ratnayake is an absolute sine qua non. It should be borne in mind that at the time the government defeated the LTTE, the latter had been officially designated as the deadliest terrorists in the world outranking even Al Qaeda.
It was 11,000+ terrorists with such a reputation that the government rehabilitated and released. It is doubtful whether the government of any other country would have done that. Unlike its predecessor, the present government cannot follow a stated policy of jailing armed forces personnel while freeing terrorists. If the LTTE cadres still in remand are to be released, that has to be preceded by the release of convicted or remanded armed forces personnel quite irrespective of whether they happen to be borderline cases like that of Sunil Ratnayake or not. During yahapalana rule we saw the spectacle of ex-LTTE terrorists enjoying their amnesty in peace while armed forces personnel, sometimes long after retirement were being hounded with arrests, investigations and court cases. When former LTTE cadres are released, nobody asks for a breakdown of the crimes and atrocities they are known to, or suspected of having been involved in. Yet everyone knows that these are dastardly terrorists who managed to outdo even Al Qaeda and come out at number one in world rankings.
Everyone also knows what their common intent was in terms of Section 32 of the Penal Code. They are nevertheless rehabilitated and released in the name of restoring normalcy to the country. The word ‘impunity’ is used by the interested parties mentioned above, only in relation to the armed forces of Sri Lanka or those who were terrorists earlier, but had later defected to the side of the government. That term is never used in relation to the LTTE. In fact they welcome immunity granted to the LTTE, as measures aimed at promoting reconciliation. Amnesty is defined in the Encyclopedia Britannica as a sovereign act of oblivion or forgetfulness for past acts and is said to have been derived from the Greek word amnesia. The rehabilitation and release of over 11,000 ex-LTTE cadres is for all practical purposes an amnesty granted to them. If amnesties are being granted, it goes without saying that individuals on both sides of the conflict should benefit from them if there is to be any fairness in the process.
Karan / April 8, 2020
This same Chandraprema justified the ‘Sinhala only’ law in his Gota War’s book. He is clearly one of those racists who thinks the Sinhalese can do no wrong and commit no sin, even if they savagely rape and kill civilians on camera.
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Mallaiyuran / April 8, 2020
There are all comments here are showing their anger on Chandraperuma, who washes his stomach by washing the Royals? When a man wrote a book with a title of “Gota’s war”, the title alone reveals what type of servitude Chandraperuma does at Kings’ palace. There were many writers in CT some left recently after the victory of the King. Probably, they want to spend their last days in their home gardens or on the nearby junction with their friends discussing politics, not in the Lankawe’s Royal prison. Chandraperuma not a frequent visitor to CT is here. Yes, “Chauliyan Kudumi Summa Aadathu”. Nevertheless there are reasons for that too. It cannot an Incident like Kusler’s wife went & told husband “Children are looking at my face; there is nothing left in the pot, I can no longer look at their drooped faces; so you go and see Kannan’s Face, please”. By the grace of Lord Buddha, springing from the fountain of $18B, milk and honey might be overflowing from Chandraperuma’s Manson’s pots. Unlike the situation with many of the world leaders, Chandraperuma need not to cover up Coronavirus for his bosses; rather it is the Coronavirus the cover for all their contemporary dastardly acts. Trying to understand Chandraperuma’s presence here will not be an easy task for us. So let us see what he is trying to tell.
Chandraperuma is nowhere telling that the Rapist Army Lance Corporal Sunil is innocent. He has not denied anywhere Rapist Army did not kill or not took part in the murders. His point is only about King’s right to pardon him the Rapist-murderer Army Corporal. His disagreement on King being investigated by International Criminal Court mainly based as America had done genocide in Middle East, so Lankawe King has rights to carry out genocide on Tamils. It is only the verdict of Sinhala Intellectuals that America did genocide in Middle East, but not of any court.
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Mallaiyuran / April 8, 2020
So they claim the equal right for them to do that in Lankawe, on Tamils. Otherwise, as they are a member nation of UN, they cannot have any valid reasons for not accepting the UN’s judgements. Then, he goes to argue that if this is not a good reason, he argues New King had pardoned Genevan, so King has the right to pardon Rapist Army. This just like in the Panchatantra story, where the judge awarded to the man who lost pot at his friend’s house, his friend’s elephant saying “Aanaikku Paanai Saman”( The elephant was only equivalent to the lost clay pot.)
Let’s look at Chandraperuma’s both points in few more sentences. Chandraperuma has not said the rapist army didn’t kill. But he says nobody saw while he was killing. So he defined what circumstantial evidence is, in his way. He went on & declared that circumstantial evidence was used by mistake in determining guilt of the Rapist Army’s murders. So he is seeing all kind of valid reason for pardoning the Rapist Army by a Genocide Criminal. World over, all courts accept circumstantial evidences for determine murder guilt. It is considered as foolproof method of determining the guilt just like direct witness. A direct witness is also human being. Especially when one Tamils is taken by Rapist Army, they always had found enough witnesses to swore at the court “a woman as a man”. That is why the Sinhala Jury Only Verdict is exclusive only to Wildlife Sanctuary, SinhaLE, Lankawe. Chandraperuma has found an enormous mistake in all the courts which had found guilty of the Rapist Army Corporal, so only way to fix this is the Genocide Paradesi (Country less) Man pardoning the Murderer. It is not as liar Chandraperuma claiming that there were no witnesses. There was man, one of the victim, who has seen who kidnapped the other victims. Then the bodies of the victims were apprehended with the guidance given by the murderers.
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Mallaiyuran / April 8, 2020
So how Chandraperuma calling is circumstantial is because the rapist Army murderers had made the witness incapacitated to watch what was going on. But the rest of the murder was self-confessed to CIDs by the murderers, so with the help of the murderers the CIDs traced the correct bodies. But as per Chandraperuma, here is a Cinema movie going. The Villain is raising sword over the neck of the Hero’s girlfriend. She was held, bent and made to offer her neck forward by accomplishes of the villain. Of cause it was only movie. So at that point the director says to stop. Then the actors left, workers brought the dummy with separated head with red liquid sprayed. Director and marvelous story teller Chandraperuma told to cameraman to start again. That is the reason here Chandraperuma cannot accept the case verdict in a self-confession confirmed with the circumstantial evidence. It is only ultimate crooks who try to frame like this the human murders by a fascist government’s coolies.
Chandraperuma is pretty sure that the use of circumstantial evidences to confirm the self-confession was wrong because it was the Sinhala Buddhist Rapist Army did the murder. But still Chandraperuma is not denying that the Rapist Army doing the murder, because it may one day could be interpreted by Royals as contempt of court of Chandraperuma, when they differ with Chandraperuma. Further he is not asking the King to release all circumstantial convictions cases out of prison because none of the Tamils cases had witnesses; all were framed by Rapist Army and Rapist Police and then explained as circumstantial evidences. Further Chandraperuma is saying that there is Banda-Chelva pact from 1957 to release all political arrest so here is moral equality to release the Rapist army corporal. Chandraperuma doesn’t care if somebody thinks he is crook but he wants to show them him as smart.
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Mallaiyuran / April 8, 2020
Then he is comparing Rapist Army Lance Corporal’s’ murder with Genevan’s case. Genevan was not involved any murder, not accused of any murder, not found by any court murdering anybody, not imprisoned for any murder, New King never died, in contrary to Chandraperuma’s efforts to prove he was. Let’s put here what happened. The Rapist Army Framed that Genevan worked with some murderers to murder New King during Old King’s reign. Genevan has nothing to do with anything accused by the Rapist Police. So how did the fume come without any fire?
There is an open case that King used his acolytes to plant bomb in a three-wheeler, was standing where he was about to visit. He killed five Tamil youths to prove that he didn’t kill Lasantha. That is not the deal here. Pillaiyan had told in the court that he was hired by Old King to finish off New King. That is where the Genevan turned out to be very valuable help for Yahapalanaya to save Old King’s patriotic deeds. Ponny & New King were said to be prepared to be used in War Crime Responsibilities of Royals. So the murder of the two before the final climax is the appropriate scene for the Mahavamsa epic for the new Dutugamunu. That is why New King was hiding in the coconut estate on January 8th 2015. Then they staged a drama with Genevan who was waiting in the prison for so long without proof for any trails. He was quickly tried, convicted with only self-confession obtained under duress, imprisoned, and released with big Drama. Unless Tamils go alone and have their own courts, there is not going to be any limit for their suffering in the hands of Rapist Army, Rapist police, Sinhala Jury Only verdicts and the Sinhala Intellectuals’ framing of the innocent Tamils.
The most laughable is the crook is saying they pardoned the War Criminals only for reconcile with Tamils.
Comedy Thamai!
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shankar / April 8, 2020
“conviction by a High Court Trial at Bar had been unanimously upheld by a five member bench of the Supreme Court”
how often have we got to see presidents pour scorn over judges.It was done by JRJ,that idiot sirisena and now gota.High time that clause for pardon was taken out of the constitution.
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shankar / April 8, 2020
“Steps thereafter had been taken to have identification parades held where a number of military personnel who were suspected of committing the crime, were produced (13 in all). Five of them had been identified by Maheshwaran.”
why only one guy was convicted?Who gave the orders for the torture and killing?All 13 of these buggers should be given lengthy sentences and the guys who killed and tortured them including the chap who gave the order should be given the death sentence.What a cover up by chandrika.
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chiv / April 8, 2020
Regi, I am alive today only because I left the shit hole Sorry Lanka. It is unfortunate that Lankans as stupid they are did not learn a thing, after so many tragedies you had mentioned. JVP insurrections, civil war, Tsunami, Easter, now pandemic and in between many others including pogroms and riots. And the result is what you see today murderers sentenced by courts are released by our own Presidents (MS/GR) who too face the same charges. The timing do so is reprehensible.
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Uncommon man / April 8, 2020
Mr. Chandraprema in his lengthy , laborious and boring essay has once again displayed his two cents worth of legal knowledge. In order to get an insight to the facts of the case and evidence led, one must go through the order made by the Trial at bar. In the Supreme Court order, you find only the anlysis of the law. Accused Sgt Ratnayake in his appeal mainly challenged the credibility of one and only eye witness Maheswaran. Justice Aluwihare copiously dealt with that point. At the end Justice Aluwihare (with 4 other Judges concurring ) came to the conclusion that Maheswaran was a credible witness and that his evidence was unimpeachable.
Both Supreme court and Trial at Bar were mindful of the fact that Maheswaran did not see the murders being committed, but have based their decision on circumstantial evidence. Circumstantial evidence and attendant facts led to the inescapable conclusion that Sgt Sunil Ratnayake committed the offence sharing the common intention with other accused persons.
With such limited knowledge and arrogance unsupported by intellectual acumen, one wonders how Mr.Chandraprema is going to fare in Geneva and the UN.
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