A Presidential pardon: A dark lining on a silver cloud?

Wednesday, 1 April 2020 00:02 -     - {{hitsCtrl.values.hits}}

Sri Lanka, and the entire world, is going through a tumultuous period without any precedents to learn lessons from. COVID-19, a microorganism, has shaken the world. Not even Hiroshima or Nagasaki, the deadliest human catastrophes experienced by humans in living memory, had caused so much worldwide panic, an economic devastation and a social disorientation of the magnitude being experienced by people in 199 countries throughout the world.

In this mayhem that is going on, Sri Lanka has emerged fifth in world rankings in regard the efficiency and effectiveness of action taken to contain COVID 19 according to the WHO. This is evident to anyone living in Sri Lanka. While it is humanly impossible to avoid all hardships caused to the people in handling a challenge of this nature, the government has taken several far thinking and far reaching steps to mitigate such hardships.

While most people have responded in a very responsible manner to the action taken and the appeals made by the Government relating to measures needed to contain the spread of this virus, unfortunately some people, some out of ignorance and some out of sheer indifference and their cavalier but foolish and selfish attitudes, have resorted to behaviour that threatens them, and which in turn threatens others who they come in contact. There cannot be any sympathy for the latter types who have potentially endangered the lives many others. If they are not interested in their lives, that is their business, but they do not have the right to endanger the lives of others. 

The credit for leading the effort to contain COVID-19 in Sri Lanka must go to President Gotabaya Rajapaksa. Even the cynics and those politically opposed to him, must see this and accept this and help him, the Prime Minister, the Health Minister and all other officials who are doing their utmost to save the people and the country from this unprecedented catastrophe.

Neither Sri Lanka with all its best efforts, or 198 other countries where the virus has spread is anywhere near containing the virus or let alone being anywhere near a sustainable containment, and hopefully, and eventually, an end to this pandemic. The continued leadership of the President and his team of ministers and health officials is needed to steer the ship of Sri Lanka in this unprecedented, extremely turbulent waters

Mirusuvil massacre

In the backdrop of this clear, unambiguous leadership and achievement so far, comes an act that has darkened the sky, and created a dark lining in an otherwise silver cloud of hope. This is the pardoning of a person who had received a death sentence affirmed even by the Supreme Court of the Country. Unless the reasons for this pardon can be explained to Sri Lankans, it is not unfair or unjust to say that there is potential for a dent in the President’s credibility and reputation. 

In a joint statement by Sri Lanka Brief titled ‘Sri Lanka: Mirusuvil massacre – accused pardoned; no reparations for victims’ families’ (https://srilankabrief.org/2020/03/joint-statement-sri-lanka-mirusuvil-massacre-accused-pardoned-no-reparations-for-victims-families/), the following background report summarises the history of this case. 

“The story of the civilian murders in Mirusuvil goes back to 20 years – on 19 December 2000, nine Tamils civilians – including three teenagers and a five-year old child – travelled from Udipiddy to Mirusuvil, a village 16 miles from Jaffna town, in the Northern Province of Sri Lanka. These persons were among those displaced from Mirusuvil due to the civil war who were resettled in a camp at Udupitty. Displaced family members used to obtain permission from the Sri Lankan Army to visit their homes. But on this day, those who visited their village never returned. It soon emerged that eight of the nine were killed by the Sri Lankan Army.

“On 24 December 2000, one of the missing, recounted the incident and gave details about the whereabouts of the remaining eight. On his evidence when the police and the Magistrate went to the site there were no bodies except a skeleton of the animal in the toilet pit. After that when the Military – Police arrested the persons who were on duty in the area, Sergeant R.M. Sunil Ratnayake gave a statement to the Military Police stating that the bodies were removed from the toilet pit and buried somewhere else. Thereafter the Police and the Magistrate went to the site of the burial and exhumed the bodies. Four men and four children were found with throats slit and eyes blindfolded. Some corpses had their hands and legs chopped off.

“The deceased belonged to four families. A single family lost four members, including children aged 13 and 5. Another lost two breadwinners. Two more also lost primary breadwinners.

“Justice took more than a decade to wind its way but, against all odds, judgment was delivered at last. On 24 June 2015, former Army Sergeant R. M. Sunil Ratnayake who had been enlarged on bail pending trial was found guilty of murdering the eight civilians and was sentenced to death by the Trial at Bar consisting of three High Court Judges held in Colombo. On appeal against the said judgment a five-Judge bench of the Supreme Court of Sri Lanka unanimously affirmed the conviction and sentence on 25 April 2019.”

The writer wishes to state at the outset that he is not across all facts of this case, and is not a member of the legal profession, or a person affiliated to any political party or any NGO engaged in human rights activities. The article is written purely as a puzzled citizen of the country, possibly airing the views of many similar-minded citizens who are very concerned with this decision of the President.

Unless an individual or an entity, or the government states otherwise, one will have to assume that the background summary given in the Sri Lanka Brief joint statement is an accurate description of events that led to the conviction and the imposition of the death sentence on the accused, Sunil Ratnayake. 

Several issues relevant to the Presidential pardon

There are several issues relevant to the Presidential pardon. Firstly, the legality of the decision arrived at on the basis of the provisions in the Constitution, secondly, the moral and ethical aspect in releasing a person convicted by several courts of what appears to be a heinous murder, eventually affirmed by the Supreme Court of the country and thirdly, the position of others convicted of murder and who have received death sentences and in prison and why this person received a pardon, and fourthly, the message this pardon is sending to many overseas friends of Sri Lanka like Lord Naseby who has consistently defended the human rights record of the Sri Lankan Armed Forces during the 30-year armed conflict with the LTTE.

In a nutshell, unless the President can explain to the public why this convicted murderer was granted a pardon when even the Supreme Court upheld the decision of the lower court, he will lose much of the credibility he has built up on account of the leadership he has demonstrated since his election as the President. He stands to squander much of the goodwill he has achieved since November with this one act. 

One has to give the benefit of any doubt to the President as he may be privy to information that many of us are not aware of. It is in the country’s interest for Sri Lankans to know why this particular convicted murderer was picked for a Presidential pardon which appears to the uninformed onlooker, to have been done in great haste. 

If Sunil Ratnayake is a victim of a miscarriage of justice, then he needs to be cleared of any wrong doings and released to the society as a free man. However, a Trial at Bar by three High Court Judges and a Supreme Court hearing and a unanimous decision by five members of the Supreme Court would cast a shadow on the overall justice system in the country if indeed there had been a miscarriage of justice in this case. 

The position of any survivors and relatives and of the deceased also needs to be considered as what they would thought of as closure of a very painful event, after some 13 years, had come to naught. Their anger and anguish cannot be underestimated or ignored.

Constitutional position relevant to Presidential pardons

The constitutional position relevant to Presidential pardons appears to be clause 34 of the Constitution. This states as follows 

34. (1) The President may in the case of any offender convicted of any offence in any court within the Republic of Sri Lanka – 

(a) grant a pardon, either free or subject to lawful conditions; 

(b) grant any respite, either indefinite for such period as the President may think fit, of the execution of any sentence passed on such offender 

(c) substitute a less severe form of punishment for any punishment imposed on such offender; or 

(d) remit the whole or any part of any punishment imposed or of any penalty or forfeiture otherwise due to the Republic on account of such offence: 

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 recommendation to the President (Italics and bold lettering has been done by the writer)

(2) The President may in the case of any person who is or has become subject to any disqualification specified in paragraph (d), (e), (f), (g) or (h) of Article 89 or sub-paragraph (g) of Paragraph (1) of Article 91- (a) grant a pardon, either free or subject to lawful conditions; or (b) reduce the period of such disqualification. 

(3) When any offence has been committed for which the offender may be tried within the Republic of Sri Lanka, the President may grant a pardon to any accomplice in such offence who shall give such information as shall lead to the conviction of the principal offender or of any one of such principal offenders, if more than one.

From the above, the proviso noted above requires:

a) A report to be prepared by the Judge who tried the accused, and

b) This has to be forwarded to the Attorney General who in turn

c) Advices the Minister in charge of the subject of Justice, who

d) Will forward the report with his/her recommendations to the President

On the question of legality of this decision, it appears that the process relating to granting a pardon to a convicted murderer is as noted above unless a there is a different explanation and an interpretation of the Constitution that could be explained to the public by experts in this field. One assumes that this procedure was followed in granting the pardon to Sunil Ratnayake. In the current pandemic climate on account of the spread of COVID-19, the pardon granted to a convicted murderer may get eclipsed by the ever-evolving news on the very serious situation in the country.

However, irrespective of this, what is right and just must prevail over what is not right and unjust. This applies equally to Sunil Ratnayake if there has been a miscarriage of justice and he had been wrongfully convicted. At the same time, if he has been convicted after fair trials, and the Sri Lankan courts including the High Court and the Supreme Court has acted fairly and justly, granting a pardon to him for whatever other reasons would not seem right or just. 

The efficiency, effectiveness and the independence of the judicial system in the country, and its credibility when it comes to dispensing justice, might well be what is really on trial now unless there is a very sound explanation as to why this pardon was granted.