Even as the whole nation is in a state of paralysis due to coronavirus pandemic, exploiting the melancholy mood of the people wrapped up in distress and cunningly seizing the moment, President Gotabaya Rajapaksa had, on 26 March 2020 granted pardon to Army Sergeant Sunil Ratnayake, a mass murderer, and set him free from the jail.
Does Gotabaya have the power under the Constitution to grant pardon.? At this moment, it’s only a moot question. Apparently, the Justice Minister has spoken on the issue to Meera Srinivasan, ‘The Hindu’ Correspondent in Colombo: ‘Minister Nimal Siripala has said that a report had been called from his Ministry. “The final decision is with the President. He can overrule anything. He has the absolute power to grant pardon, no one can question him,” he told The Hindu, adding that the constitutionally mandated procedure for the pardon was followed.“ (The Hindu, 27 March 2020 – Sri Lanka frees soldier who killed 8 Tamils”) . By the way, according to New York Times, “Sri Lankan government did not immediately respond to requests (from them) for comment.” (NY Times 28 March 2020 – infra ). There is no news about any subsequent comment.
The Minister is a lawyer. As will be later discussed in this narrative, his view may not bear examination. But who cares for the Constitution, the Supreme Law of the land? Rajapaksas derive their powers not through the Constitution, Conversely, in the surreal realm of Rajapaksas, Constitutional provisions derive their sustenance and force only to the extent that they are so recognized by Rajapaksas. In other words, only if they are not repugnant to Rajapaksas’ agenda. Their track record (2005-2014) would bear this out. In his discussion on US ‘Presidential pardons’, CNN Commenator Chris Cillizza says, “President Donald Trump runs his White House (and his life) by two simple principles: (1) Reward your friends,(2) Punish your enemies.” (CNN, 18 Feb. 2020 – “ Here’s the secret to getting a Trump presidential pardon”).
Unlike Trump, Rajapaksas have other priorities too, in order to gratify the ultra-nationalist Sinhala Buddhist constituency. Mollycoddling the“Ranaviruvo” is primary among them.
Gotabaya’s Election pledge
Thus, absolving the war criminals of their crimes is part of Rajapaksas’ agenda.
It was an election pledge given by Gotabaya at his inaugural election rally on 9 Oct. 2019, ahead of the Presidential Election held on 16 Nov. 2019: “SLPP Presidential Candidate Gotabaya Rajapaksa says his duty is to make Sri Lanka a safe country once again and also promised to release all war heroes who have been imprisoned over ‘false’ charges.” ( Adaderana, 9 Oct. 2019 – “Gotabaya pledges to release imprisoned war heroes by Nov. 17” ).
Beware ! and Brace up !
Trashing the hallowed principle of Rule of Law and thumping one’s nose at the Judiciary are menacing threats to civil liberties and human rights. Especially, the vulnerable sections of the society are liable to succumb to ethnocentric executive tyranny and oppression. Gotabaya’s pardon is just the tip of the iceberg. “The ICJ is deeply concerned that this presidential pardon may be the first of the many to come….” ( ICJ, 27 March 2020, infra.) Political bullies often pick on soft targets. Therefore, the Tamil people and other ethno-religious minorities, besides the vocal minority among the Sinhala liberals need to remain on the alert: Beware!, and Brace up ! Fight this fascist menace!
“False charge” or “Minor offence”?
President Gotabaya, in his infinite wisdom, has instinctively found out that Sunil Ratnayake’s conviction was based on “false charges”, an arcane element that had slipped the judicial minds of a Magistrate, the three Trial-at-Bar judges of Colombo High Court and five judges of the Supreme Court. And , the President may also have mused over using another flimsy fig leaf to cover his naked aggression against the sacred doctrine of Rule of Law. What is that? “Sri Lanka’s President Gotabaya Rajapaksa has appointed a committee to look into way to release people who have been jailed over minor offenses and those who could not provide bail, his office said.” (ECONOMYNEXT, 24 March 2020 –“Sri Lanka mulls releasing prisoners in Coronavirus battle”). But, that is a sticky wicket. Committing mass murder cannot be a “minor offence” even in a dystopian society, where jungle law runs rampant. But then, in Rajapaksas’ realm, who can stop them from construing words to suit their convenience?
Gross travesty of Justice
Gotabaya’s Presidential pardon is a gross travesty of justice. He has, virtually, told one and all – the souls of the dead, victims’ families, the judiciary, Tamil citizenry, the UNHRC in Geneva, human rights defenders the world over and discerning members of the international community, to “Go to Hell”. The gratuitous pardon is a brazen expression of Gotabaya’s arrogance of power and toxic tribalism. What is at stake is the very survival of the multi-ethnic covenant that has precariously held this country together since our political emancipation from the British in 1948.
The gory moments
In order to put this narrative in perspective, let me briefly recall the “heroic” exploits of the “war hero”, Army Sergeant Sunil Ratnayake.“On 24 Dec. 2000, some bodies were found in the septic tank of a toilet by the side of the army camp. The matter was then reported to the Chavakacheri Courts. When the judge inspected the scene, four youths under the age of 18 were discovered besides four men with decomposed bodies, throats slit and eyes blindfolded. Some had their legs and hands chopped off. One had his skin peeled, looking pink. Among the eight murder victims was five-year-old Visvarayan Prasath. (Colombo Telegraph, 26 March 2020– “Army Butcher Sunil Ratnayake Released Amidst Coronavirus Outbreak”)
To sit by as spectators to a travesty of justice is to condone what is being done.That is what the Sinhala-Buddhist polity, in general, and its political class have done. ‘Patriotic’ SB barons of the mainstream media, their columnists and reporters have either shamelessly remained silent with a view to suppressing the information or tried to sanitise it. The Island newspaper, always thirsting for Tamil blood and relishing our moments of tragedy, has carried ‘research’ articles rationalizing the massacre and glorifying Gotabaya’s pardon. Happily, the outside world is familiar with the mindset of the majority – local fascists’ morbid fascination with army atrocities targeting the Tamils: “The pardon brought outrage from rights activists and opposition politicians, but little obvious reaction from the broader Sri Lankan public……..”. “But social media pages supportive of the president were flooded with praise for the pardon, underscoring the continuing divide over the war…..”(New York Times, 28 March 2020 –“As Pandemic Rages, Sri Lanka’s President Pardons a War Criminal” ) NY Times story has referred to “Opposition politicians”. But the only (Sinhala) Opposition politician who has tacitly spoken out is former Minister Mangala Samaraweera – besides the (Tamil) TNA politicians.
Soothing voices from the South
Luckily, there are soothing voices from some enlightened sections of the Sinhala South who have always tried to make themselves heard over the din of the racist rabble. They are few, but not feeble voices. Writng in her weekly column, the erudite human rights lawyer Ms. Kishali Pinto Jayawardene has observed: “Witnesses were also reluctant to travel to Colombo for court hearings. Ratnayake’s meagre and solitary conviction, (veritably a sop thrown to those demanding justice), was upheld by the Supreme Court following a meticulous consideration of the evidence and the evidence of the sole and traumatized survivor of that atrocity……… (Sunday Times, 29 March 2020 –“Focus on Rights: A historic atrocity that did not get justice”)
As always, Ms.Tissaranee Gunasekara has candidly expressed her outrage over Gotabaya’s decision. Her account of the brutality captures the poignant scene and also exposes the evil traits of the military men and the hypocrisy of some
Opposition leaders: EXCERPTS: “……All the eight deceased persons had sustained the identical fatal injury, a cut on the neck inflicted from behind, as disclosed by the medical evidence…. …….Amongst those whose throats were slit from behind was a five year old child. The toddler had accompanied his father, two brothers (aged 13 and 15) and other adults… in their fatal journey to their original village of Mirusuvil. As they were about to leave, writes Justice Aluvihare, the toddler saw a guava tree full of ripe fruits. He begged for some fruits. The group stopped to pluck the fruits. That was when the killers arrived……. ”.
“What kind of leader would pardon such a killer? What kind of a future can the country expect from such a leader?”
Barbarism is heroism – Official reception to “butcher”
“When the pardoned killer emerged from the prison, his welcoming party was headed by none other than retired major general and defence secretary Kamal Gunaratne. That presence was as symbolic as the pardon itself because it gave to the pardon the final ideological imprimatur. This was no isolated act, it said, but an integral component of the Gotabaya Rajapaksa political project……….Barbarism is heroism, the pardon says, and blood lust is patriotism….”
Ranil, Sajith, JVP & BASL
“The shameful and shaming silence on the part of Ranil Wickremesinghe, Sajith Premadasa and the JVP about this heinous pardon demonstrates that in the oppositional space, cowardice and opportunism prevail.” (Colombo Telegraph, 5 April 2020 – “ The President in the Pandemic……”).
By the way, the silence of the Bar Association (BASL) on this cardinal issue is deafening. And, where is His Eminence, Cardinal Malcolm Ranjit? And what is his take on the gross abuse of power by His Excellency, President Gotabaya? We know that His Eminence and His Excellency have an excellent rapport .
Editorials – Hindu & Deccan Chronicle
The revolting assault on the Rule of Law and the Judiciary has not provoked condemnation from any of the editors in Colombo. There was nary a single editorial comment on the issue by any of the dailies/weeklies. Perhaps, they feared Gotabaya goons. Or else, they dismissed it as a trifling matter. However, “The Hindu” (Chennai) and “Deccan Chronicle” (Hyderabad) had the gumption to editorially comment on Gotabaya’s pardon. EXCERPTS: “It hardly needs emphasis that the exercise of the power of pardon is an act of compassion, and not a tool for political or electoral messaging. However, President Gotabaya Rajapaksa has sent out a message to his vast body of supporters among the Sinhalese that he would not let ‘war heroes’ languish in prison, even if it means that the minority Tamils get a chilling message that substantive justice for war crimes will always elude them; and even when rendered, it could be undone with a stroke of the pen……..”
“The pardon, granted at a time when the country’s focus is on fighting COVID-19, is a serious setback to hopes that accountability could be brought about in Sri Lanka through domestic mechanisms.” (The Hindu, 30 March 2020 – “Political pardon: On Sri Lankan soldier’s release” )
“The decision of its president Gotabaya Rajapaksa to pardon the soldier Sunil Ratnayake is not only deeply disappointing but also sends quite the wrong signal to the UN and the world that the island nation will not bow to international opinion on respecting the law against war crimes.” (Deccan Chronicle, 1 April 2020 – “A Political Pardon” )
Mercifully, the international community at large keeps its ear to the ground. Rajapaksas’ writ may not run in the domains of the civilized world. The UN and eminent human rights/civil rights organizations and advocates have promptly condemned Gotabaya’s monstrosity. The common thread running through their diverse messages is scepticism about Sri Lanka’s commitment to fulfil its international human rights obligations. They also believe that an international justice mechanism is imperative in Sri Lanka. EXCERPTS: “We are troubled by reports that the convicted perpetrator of the Mirusuvil massacre, in Sri Lanka, has received a Presidential Pardon and was released from jail this week. The Presidential pardon is an affront to victims and yet another example of the failure of Sri Lanka to fulfil its international human rights obligations to provide meaningful accountability for war crimes, crimes against humanity and other gross violations of human rights.”(per Rupert Colville, Spokesperson, UNHRC, Geneva, 27 March 2020 )
International Commission of Jurists
“The prosecution of Staff Sergeant Ratnayake for his involvement in the killing of civilians, including children, at Mirusuvil was a rare exception to the usual lack of accountability for human rights violations committed during the conflict,” said Frederick Rawski, ICJ’s Regional Director for Asia and the Pacific.
“It is particularly distressing that a presidential pardon of this nature has been issued at a time when the nation is dealing with the potentially devastating impacts of the COVID-19 outbreak,” said Rawski. “The government would be advised to focus on responding to legitimate calls to release prisoners of minor offences, ……… rather than taking cynical advantage of the crisis to free convicted war criminals.”( ICJ, 27 March 2020 – “Sri Lanka: Presidential pardon of former Army officer for killing of Tamil civilians is unacceptable”)
“Responding to President Gotabaya Rajapaksa’s decision to release Sergeant Sunil Rathnayaka, Amnesty International’s Regional Director for South Asia, Biraj Patnaik, said: ‘Where accountability is so rare for serious human rights violations in Sri Lanka, the government’s arbitrary decision to release Sergeant Rathnayaka sends an extremely worrying message.” (Amnesty Int’l, 26 March 2020 – “Justice reversed for victims of the Mirusuvil massacre, Sri Lanka.”)
Human Rights Watch
“Presidential Pardon Shows Rajapaksa’s Indifference to Army Atrocities” said Meenakshi Ganguly, South Asia director (for Human Eights Watch).
“The Rajapaksa government has appointed alleged perpetrators of war crimes to high office while pardoning one of the few soldiers convicted for a terrible offense,” Ganguly said. “It should be clear that to deliver justice for victims and to deter future atrocities, an international justice mechanism is needed in Sri Lanka.” ( HRW, 27 March 2020 – “Sri Lanka: Justice Undone for Massacre Victims” )
“……. Mr. Rajapaksa, who was elected in November, is himself accused of having ordered war crimes during the civil war, when he served as defense secretary……..”
“The chairman of the House Foreign Affairs Committee in the United States, Representative Eliot Engel, condemned the pardon in a Twitter post on Friday”. (NY Times, 28 March 2020 -ibid.)
Mirusuvil massacre is by no means our people’s maiden experience at the hands of the marauding military goons. Time and again the savages have wantonly slaughtered scores of our defenceless people, young and old. Related Court cases remain consigned to cold storage. Why? Because, the victims are Tamils and, therefore, are disposables. From the graves they continue to cry their heart out for justice. Conjuring up the images of the carnage will be traumatizing.
To borrow (former) Secretary of State John Kerry’s words spoken on another occasion, Gotabaya’s pardon “is a moral obscenity…that should shock the conscience of the world.”
Now, Does President Gotabaya have the power to “pardon”.? Yes, he has, under Article 34(1) of the Constitution. Is it a plenary power? No, it is not.
*To be continued..