By C. A. Chandraprema Courtesy The Island

A veritable caterwaul of protest has erupted from local and international NGO quarters over the presidential pardon extended to a former soldier Sunil Ratnayake, who had been convicted and sentenced to death over an incident, in 2000, when eight Tamil persons including a five-year-old child were 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. An 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 have also condemned the release of this convict. Furthermore, 22 foreign funded NGOs in Sri Lanka have 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 have also pointed out that his conviction by a High Court Trial-at-Bar was 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 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 Ratnayake 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 overran Elephant Pass and the army had to reposition its 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 came 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 and explained the reason for their presence in the area. The soldiers 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 regained his senses. At that point, two military men carried him and tossed him over a fence. In the process his blindfold had got entangled with the barbed wire of the fence.

He was then taken to a location where there was a cesspit. According to Maheshwaran he 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 pushed the two soldiers who approached to blindfold him again and ran for his life through the thicket, clad only in his underwear. He 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 met his father who had come out looking for him and both of them returned to their temporary residence at Karaweddi. They then complained about the incident to the EPDP office in the area. Maheshwaran was subsequently admitted to hospital.

On the 22nd December he left the hospital and returned home. The following day he was 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, visited the location of the cesspit. What they found inside the pit were parts of the carcass of a goat and a reptile.

Five arrested over 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, visited the area again and Lance Corporal Rathnayake pointed out a location which had loose soil covered with small branches. Then steps had been taken to inform the Police. The police 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 were recovered. Steps were taken to have identification parades held where a number of military personnel suspected of committing the crime, were produced (13 in all). Five of them were 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.

A borderline case

On the basis of the above, the SC held that Lance Corporal Ratnayake was not only liable for the acts committed by him, but also for the acts committed by others who were with him as well, according to 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 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, his action 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 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 been 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 Ratnayake is a 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 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.