Sunil Rathnayake Pardon
Posted on April 2nd, 2020

Chanaka Bandarage

Is Sunil Rathnayake innocent?

If Sunil Rathnayake received a Presidential pardon just because the previous President pardoned convicted Tamil Tigers, it is not a good reason for the pardon. ‘Two wrongs don’t make a right’.

The President, who is also the ex-Defence Secretary, would not have released Sunil Rathnayake unless that was the right thing to do. 

It is important to bear in mind that there are several military men currently held in the prison for wrongful acts committed in the military, but only Sunil Rathnayake was released.

It is a well known fact that the military has always held a firm belief that Sunil Rathnayake is innocent.

The current top security apparatus, who are held in the highest esteem in Sri Lanka, are believed to have firsthand knowledge about the incident.

In the recently held Presidential election campaign, Sunil Rathnayake’s release was mentioned in Pohottuwa election rallies. Thus, it is possible to argue that releasing Sunil Rathnayake was a fulfillment of an election promise. The electorate was forewarned, yet they (69 lakhs) reciprocated positively.

Sources within the military, especially those who had worked with Sunil Rathnayake, strongly and unequivocally state that Sunil Rathnayake is innocent.  Their version of the story is that Sunil Rathnayake was only involved in an act of eliminating the  LTTE. The LTTE was acting brutally at that time and it is well known that they had used various tactics to attack the military.  These sources state that Sunil Rathnayake had no desire to indiscriminately kill innocent Tamil civilians; in the Miruseveli group,  there had been Tamil Tigers in the group in disguise.

The writer does not have firsthand information about the incident. He goes by what the rank and file and senior officers of the military state.

We should not forget that Sunil Rathnayake grappled with the case for nearly 20 years. During that period he was routinely in and out of the jail. This is a significant period of one’s life. During that time he had had horrendous experience.

Empirical evidence about the Sri Lankan Army proves that the recent Army has never engaged in brutal acts. It has always acted as a humanitarian force.

If Sunil Rathnayake is innocent, he should not spend an extra day in the prison. The quotation – ‘it is better 100 guilty Persons should escape than that one innocent Person should suffer’.

Dilrook Kannangara in his recent article (in Lankaweb) states that Sunil Rathnayake seems to have received a weak defence. It seems that his case was inadequately presented to the courts, including the Supreme Court.

We, being a common law country, have an adversarial legal system. Like in inquisitorial systems (civil law countries), our courts do not actively become involved in prosecuting a case.  The onus is on the parties to adduce evidence, raise objections and state the relevant law. The courts only act as the referee between the parties. The Supreme Court being the highest appellate body would only investigate errors of law and fact (if any) committed by the lower court, the High Court of Sri Lanka in this instance. Dilrook Kannangara seems to be saying that there had been a dearth in Sunil Rathnayake’s defence. Then, the courts would have no other alternative but to side with the Prosecution – the party that had made the stronger case.

Dilrook Kannangra is correct to state that even if the Supreme Court affirmed a lower court’s conviction, the President in his own prerogative as the Executive President has power to pardon a prisoner.

This is a power given to the President under Article 34 of the Constitution.  The carrying out this power is no way a belittling of the judiciary.

The notorious Royal Park murderer escaped the death sentence after he was released by the former President using the same power.  His death sentence was also upheld by the Supreme Court.

If innocent, pardoning of Sunil Rathnayake was the right thing to do?

This is a separate question that needs a careful review.

Some say that by pardoning him, the government has given impetus to its enemies in the West and local (there are many), especially the Tamil Diaspora; to wage a ‘new war’ against it. This argument has merit.

The government would have known that Sunil Rathnayake’s release would mean the facing of a barrage of new criticisms, both international and local. It would have known that certain western governments/international NGOs sympathetic to Tamil Tigers and Tamil Separatists would demand imposition of sanctions.

Sunil Rathnayake is a Ranawiruwa. There is no doubt that he would have contented to remain in the prison, just for the sake of the country. For him, it will be making another sacrifice for the motherland.

A patriot would always give his life to protect the motherland (eg Hasalaka Weeraya). Brave, innocent military men have purposely gone to jail to save their country and leaders who face false/fake war crimes charges and similar allegations.

Sunil Rathnayake is that type of a man.

The government could have easily kept Sunil Rathnayake in jail to the rest of his life. But, it did not want to do that. The government was determined to clear Sunil Rathnayake’s name – as it believed that he is  innocent.

The government here was more concerned about upholding its high morals and high principles. These are hard to find qualities in the current day and age. More than anything else the government wanted to do justice by Sunil Rathnayake.

It is ludicrous to say that the government’s act was an attack on the country’s minority Tamils. These are statements of power hungry politicians. They ought to be sensitive before using such dangerous rhetoric. They should know that their irresponsible statements could cause untold harm to the country’s  ethnic relations. We have a fragile peace in Sri Lanka.

Again, the release of Sunil Rathnayake has given the country’s enemies a new opportunity to wage new accusations. Tamil Diaspora now demands the revival of the old war crimes charges.  How far would their actions go, would Sri Lanka end up receiving international reprimands/sanctions; these are difficult questions to answer at this stage.  

A school of thought is that the government should have instead afforded Sunil Rathnayake excellent conditions in the prison and looked after his family well. The taxpayer would not have minded this. The justification to this argument is that the last thing the government wants is more trouble. It already has enough on its plate.

Again, the government seems to have been preoccupied with upholding Sunil  Rathnayake’s rights and liberties -a Ranaviruwa who had a brilliant military record. He was the winner of the prestigious Ranasoora medal.

One could argue that the government has shown true bravery and a true desire to uphold justice. Another could argue that the government should have given priority to the country’s interests over the interests of a single individual.

Different people would analyse this differently, according to their own conscience and standard of measurement.

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