Pardon, Mr. President, Sir

By N Sathiya Moorthy

President Gotabhaya Rajapaksa’s expected decision to grant special pardon to Sri Lanka Army’s Staff Sergeant R M Sunil Ratnayake in what critics dub as yet another episode ‘war crimes’, has received brick-bats, but no bouquets. None of the latter was expected either. But brick-bats will continue to land until after the September UNHRC session and beyond.

Ratnayake and four others were charged with what tantamount to ‘cold-blooded murder’ of nine Tamil civilians, including a five-year-old child, in what is known as the ‘Mirusuvil murders’. According to court records, the incident occurred in 2000, the case took over a decade in the trial court. Ratnayake alone was found guilty of all the crimes alleged. He was sentenced to be hung. All other accused were set at liberty.

The sentence was passed in 2015, when alone the ‘yahapalanaya’ Government was in power. Like the trial court, the High Court also found Ratnayake guilty. As unanimously as the trial court Bench, the Justices at the High Court spoke in one voice in condemning Ratnayake to death.

Going by a section of the Tamil media reports since, and given the Tamils’ inherent and often unfounded suspicion of Sinhala Judges in the country, all those that decided on Ratnayake cases carried that very ethnicity.

In an equally uncomplimentary way, they have also reported that most, if not all Judges concerned, were appointed when present-day Prime Minister Mahinda Rajapaksa was President. Some pointed out incumbent President Gota Rajapaksa was the all-important Defence Secretary when those appointments were made.

But them, none of them cared to point out that the Rajapaksas were not in real power or in charge of the war efforts when the incident happened in 2000. Chandrika Bandaranaike-Kumaratunga, under whom Mahinda R was a Minister, was President. No one has charged her with ‘political accountability’, since.

Electorally accountable

As is to be expected, the Tamil National Alliance (TNA) has criticised the President for his decision to grant special pardon to Ratnayake. In the same vein, so to say, they have also sought freedom for all Tamils who have been in prison from the long era of LTTE war, which ended over a full decade back.

They have a point on both fronts. It may not be a bad idea for President Gota R and the Government to use the cover of covid pandemic to free all Tamil prisoners associated with the war, lest they should be held electorally accountable by the ‘Sinhala-Buddhist chauvinist voters’ and others in the South. Their fear for the LTTE, however, was real.

This is because the timing of President Gota’s decision has become suspect as much as the decision itself is being questioned for ethnic partisanship. Coming as it does after his post-election pledge to be the President of all people in the country, this is the kind of charge he should have tried to avoid. But this is also the kind of charge that comes naturally to Tamil politicos and hard-liners, and their civil society friends, the majority Sinhalas and the rest included.

West too busy, but…

The West is too busy, caught up in the midst of coronavirus themselves. They have no time, energy or inclination to look over their shoulders and look around to see what’s happening in distant Sri Lanka. But the UNHRC has said that it is ‘troubled’ at the turn of events.

What the UNHRC says today, the West says tomorrow. The reverse is truer. That is also the overall design and construct of the UNHRC, and all other UN affiliates, including the IMF and World Bank. There is nothing surprising about it.

What could however be surprising is the way they all can be expected to ‘Murisuvil case’ as yet another instance where the Rajapaksas in power cannot be trusted to conduct a ‘free and fair’ trial on war-crimes, as they have been promising all along. Or, at least they now ‘know’ where exactly such trials would lead to, in the end.

This only means that when Resolution 30/1 comes up for further assessment and action in the UNHRC session of March 2021, they will revive their persistent call from the pre-yahapalanaya years, to demand an ‘independent, international probe’, with international judges.

Given the current global entrapment in coronavirus, it may be too early to say how it all could pan out, especially after China, in the midst of it all, has committed a total $ 1,200 million in aid for Sri Lanka, $ 500 m now and the rest in May. For most western nations, especially the more powerful US in Sri Lanka’s Indian Ocean Region neighbourhood, China is the real bug-bear.

‘No’ to death sentence

As and when it is taken up, the Government can be expected to consider telling the West that the nation is against death sentence, hence presidential pardon for Ratnayake. It may sell and not-sell at the same time.

From a politically untainted human rights perspective, the Government may have international backers, not up to a point but after that point had been reached. The West too can be expected to hang on to their script, as and when produced.

Most human rights groups and also many western Governments with their diplomats based in Colombo went hammer and tongs when their one-time favourite in yahalanaya President Maithripala Sirisena wanted convicted/condemned drug-smugglers hanged. They cannot now argue otherwise in the case of Ratnayake.

Not executing a condemned prisoner and let him live the rest of his life, but in prison, is one thing. Granting him presidential pardon is another. It is here legal and judicial contradictions may arise, if and when pursued domestically.

The Supreme Court is seized of the challenge against the Sirisena Executive’s execution orders against some of the judicially-condemned drug-smugglers. It is not unlikely that once the virus-scene subsides, the TNA especially can be expected to try and become an intervenor in the case.

The TNA of the families of the eight Ratnayake victims may also want the Supreme Court to re-open la affaire Ratnayake, both for political and legal reasons. The Government may then face some embarrassing moments in the case, as it tends to submit that the President’s power in granting ‘pardon’ in criminal cases is ‘absolute’ and the like.

Letting to rot…

In between arises the question if President Gota R should have waited for the condemned Ratnayake to appeal the Supreme Court against the High Court confirmation of his death sentence, and proceeded later on. Maybe, there again, he could have considered leaving Ratnayake to rot in prison for a longer time before reviewing the matter – and in right earnest.

In doing all this, the President could have thrown the preacher’s book(s) at them viz a viz the drug-smugglers case. Civil society organisations nearer home also joined, or triggered the global chorus, noting with pride how the land of Buddha had been desisting from the State temptation of carrying out death sentences.

Of course, the Rajapaksas are sworn to defend the nation’s armed forces in terms of allegations of ‘war-crimes’ probe. In a way, that is their way of holding themselves politically accountable as to what all might have happened. In doing so, they have chosen not to put individual soldiers on the dock, stand long trials and global condemnation (at times without justification), demoralising the forces and the nation and the people as a whole.

It is contestable if the UNHRC process will have much meaning after the Rajapaksas had walked out on Resolution 30/1 and its follow-up, co-authored by the yahapalanaya dispensation before them now. If and only if there is a way out for the UNHRC/UN processes to force Sri Lanka to ‘behave’ without attempting another ‘regime-change’ of the 2015 kind – and failing miserably in the end – can there be a cause for external concern on the Ratnayake front.

But then, the UNHRC processes, where the West brought them, given their inability to bypass China-Russia veto-votes on occasions, will still have to go back to the US Security Council. That is where China and Russia will count more, or at least as much on the political front as China is on the economic front, from Hambantota to the pandemic aid package.

(The writer is a Distinguished Fellow and Head-Chennai Initiative, Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. Email: [email protected])

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