Feature Article

Politics of statements failing to call a spade a spade

[TamilNet, Monday, 30 March 2020, 21:51 GMT]
The latest presidential pardoning of a massacre-convicted SL Army soldier is an outcome of the Mahawansa mindset, which is the ideology triggering the specific intent (Dolus Specialis) for Tamil genocide. In the chosen island of “Sri Lanka,” it is the genocidal Mahawansa doctrine that ultimately determines the delivery of justice as well as sustaining the unitary character of the state. Any roadmap, which seeks to improve the Colombo-centric system through gradual reforms without reconfiguring the underlying state structure in the first place, only paves the way for reversing even the cosmetic outcomes of the concerned deceptive progress. Those who contribute to such an experiment, directly or indirectly — even if they intend to disprove the approach through partaking in it — are complicit in sophisticated genocide denial as long as they are not prepared to call a spade a spade.

From UN High Commissioner for Human Rights, who remains a prisoner for the paradigm imposed by her predecessors, to NGO-driven civil rights groups in the island are all avoiding to directly identify the brutal massacre committed by Sunil Ratnayake and his fellow soldiers as a genocidal act.

The statements issued by rights-related actors inside and outside the island only reveal their sophistication in dodging to name the crime of all crimes.

The Tamil Civil Society Forum (TCSF), in its statement said: “We trust that all concerned will hence forth stop asking the Tamil people to be patient and trust in Sri Lanka's judicial system to deliver on accountability and justice.”

While the TCSF, calling for international investigations, was closer to describe the genocidal nature of the state-system in the island without using the term genocide, the statement from the Colombo-based NGO-driven civil groups was complaining about “reparations” to victims.

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“Pardoning one of the sole convicted perpetrators of atrocities committed during the Sri Lankan conflict further undermines the limited progress the country has made towards ending impunity for mass human rights abuse,” said Rupert Colville, the spokesperson for the UN High Commissioner for Human Rights, in a statement issued on 27 March.

Noting that the case of Sunil Ratnayake was one of the rare human rights cases from the decades long conflict that had ever reached conviction, he said the Presidential pardon was 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.

“Victims of such violations and crimes have the right to a remedy. This includes equal and effective access to justice and reparation, and that perpetrators serve a punishment that is proportionate to the seriousness of their conduct.”

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Excerpts from the statements of Amnesty International and Human Rights Watch:

“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. It means that military perpetrators of horrific crimes, even if convicted through a court of law, will be pardoned and released,” said Amnesty International’s Regional Director for South Asia, Biraj Patnaik, in a statement issued on 26 March.

“Using the pandemic as an opportunity to release those convicted for heinous crimes is reprehensible. Victims have a right to justice, and Sri Lanka has an obligation to ensure that justice is done. After many long years, the victims of the Mirusuvil massacre from 2000 finally got a semblance of justice in 2015. It is despicable to have that justice reversed through an arbitrary Executive decision,” said Biraj Patnaik.

US-based Human Rights Watch, in its statement said that “[t]he Gotabaya Rajapaksa government couldn’t make it any plainer to victims and their families that it opposes any form of justice for even the worst atrocities.”

“It should be clear that to deliver justice for victims and to deter future atrocities, an international justice mechanism is needed in Sri Lanka,” observed Meenakshi Ganguly, the South Asia director of the HRW in the statement issued on 27 March.

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Statement from the Tamil Civil Society Forum, issued on 28 March, follows:

Statement Concerning the Grant of Presidential Pardon to the Murder Convict in the Mirusuvil Massacre case

The Tamil Civil Society Forum vehemently condemns President Gotabaya Rajapaksa's pardoning of Sunil Ratnayake, Staff Sergeant attached to the Gajaba Regiment of the Sri Lanka Army, convicted for the murder of eight Tamil civilians including a five-year old child on 19 December 2000 in Mirusivil, Jaffna.

Sunil Ratnayake was convicted by a Trial-at-Bar comprising of three High Court Judges in 2015. His appeal to the Supreme Court was dismissed by a five-member bench of the Supreme Court in 2019.

The conviction of Sunil Ratnayake was an exception in Sri Lankan judicial history. It is probably to date the only case where an army soldier was convicted for murder of Tamil civilians during war other than the Krishanthy Kumaraswamy case. In most instances, cases against the Sri Lankan Army never end up in prosecution and conviction owing to poor and/or deliberately negligent investigations on the part of the police and more importantly the lack of political will on the part of the Government and its prosecutorial arm, the Attorney General's Department. The Kumarapuram massacre case in which the court acquitted all accused in 2016 is a good example. The conviction of Sunil Ratnayake was hence an exception to the rule that the Sri Lankan state and its organs are unwilling to prosecute the Sri Lankan Army in relation to crimes committed against Tamils.

That President Gotabaya Rajapaksa has decided to nullify this thin exception is a reminder of the depth of the political conviction running through the ruling Sinhala Buddhist class that the Sri Lankan Armed Forces are above the law in their treatment of the Tamil populous. That President Rajapaksa has chosen to do it during a pandemic, in which the propaganda machine of the highly militarised state apparatus seeks to portray the military as the only credible public institution, is extremely manipulative.

The act of the President has deeply anguished and hurt the Tamil community during a time when the whole humankind is feeling unsafe and anxious over the spread of COVID19 and the devastation it has brought about. The act of pardon in these extraordinary times is a reminder that President Rajapaksa will not care for the sentiments of the Tamil people.

We trust that all concerned will hence forth stop asking the Tamil people to be patient and trust in Sri Lanka's judicial system to deliver on accountability and justice. The only option for justice is through international institutions for criminal justice.

(Signed)
Fr. V. Yogeswaran and Dr. K. Guruparan
Co-Spokespersons, Tamil Civil Society Forum

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Statement endorsed by 22 organisations along with Colombo-based Center for Policy Alternatives (CPA) and International Centre for Ethnic Studies (ICES) on 30 March, follows:

Mirusuvil Massacre – Accused Pardoned; No Reparations for Victims’ Families

On March 26, 2020, President Gotabhaya Rajapaksa granted a presidential pardon and released convicted death row prisoner and mass murderer, former Army Staff Sergeant R. M. Sunil Rathnayake. While the country is on lockdown due to COVID-19, the President has seized this opportunity to deal a lethal blow to the rule of law to show that military perpetrators of heinous crimes will be given cover at the highest level despite the rulings of the Supreme Court the highest court in our land. In pardoning Ratnayake, the President has given his blessing to a cold-blooded killer who murdered a five-year-old child and seven other innocent civilians.

The story of the civilian murders in Mirusuvil goes back to twenty years - on December 19 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 December 24, 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 Rathnayake 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 June 24, 2015, former Army Sergeant R. M. Sunil Rathnayake 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 April 25, 2019.

By granting the presidential pardon to Sergeant R.M. Sunil Rathnayake, power has been abused and justice has been forsaken. In a country where military perpetrators have rarely been held to account, leading ethnic distrust to fester into war, the President has granted a pardon to one of few men actually held accountable by our nation's highest court. His pardon is a direct challenge to judicial independence and will result in the further erosion and loss of confidence in the Sri Lankan justice system among war-affected communities.

For the four families directly affected, who have suffered from poverty and immeasurable personal loss, their small sliver of solace has been snatched away. When the sole surviving witness was previously visited by state intelligence officers soon after the presidential election, he expressed his apprehension that, he has no security or protection if the accused is released. Now that threat is real, and our laws and structures are hardly equipped to protect him.

It is a matter of regret and national tragedy that neither the state nor government authorities have over the years offered reparations or compensations to the families of the dead who have been deprived of their bread winners and are condemned to live in poverty for the rest of their lives.

Soon after the Presidential election, news media speculated that the Mirusuvil murderer was to be granted a presidential pardon and released. Affected families were terribly upset and lodged complaints before the Human Rights Commission in Jaffna and in the media. Right now, with the country in lock down, victims' families are in no position to demonstrate their disapproval and distress. While pretending to save the country from COVID-19, the President is actually using his constitutional powers to fulfill his inflammatory electoral pledge to release "war heroes" from prison.

To put it in context, the country withdrew from its UNHRC commitments last month. The President declared that there are no disappeared persons, and those believed missing are all dead. His government has promoted suspected war criminals as head of operations in military sectors, and General Shavendra Silva is touted as a savior against COVID 19. The military is increasingly involved in all civilian activities. New roadblocks and checkpoints have been introduced solely in the Northern Province. And now a convicted mass murderer is pardoned and released by the President.

In perspective, the act of granting presidential pardon to a convicted criminal conveys the chilling message to the public that, irrespective of the gravity of the offence, offenders from the security forces will not be punished even if convicted by Court of Law and that any crime or violence committed against the ethnic communities will go unpunished. The security forces including the police already enjoying high degree of impunity will surely be further emboldened by the covert encouragement by the government to commit further atrocities against the hapless and vulnerable people. As organizations and individuals who are committed to the Rule of Law and to the protection of democratic values, we vehemently and unreservedly condemn the presidential pardon granted to Sergeant R.M. Sunil Rathnayake which said act will undoubtedly lead to further militarization of the society and contribute to disunity and distrust among communities in the country.

Endorsed by:

  1. Centre for human Rights and Development (CHRD)
  2. Women’s Action Network (WAN)
  3. International Centre for Ethnic Studies (ICES)
  4. Centre for Policy Alternatives (CPA)
  5. Human Rights Office – Kandy
  6. Human Elevation Organization (HEO)- Ampara
  7. Law and Society Trust (LST)
  8. Eastern Social Development Foundation (ESDF)
  9. Mannar Women’s Development Federation (MWDF)
  10. National Fisheries Solidarity Movement (NAFSO)
  11. Affected Women’s Forum (AWF)- Ampara
  12. Rural Development Foundation (RDF)
  13. Institute of Social Development (ISD)- Kandy
  14. Committee for the Protection of the Rights of Prisoners (CPRP)
  15. INFORM Human Rights Documentation Centre
  16. Federation of Media Employees' Trade Unions
  17. Centre for Justice and Change, Trincomalee
  18. Rights Now – Collective for Democracy
  19. Right to Life Human Rights Centre
  20. Sri Lanka Working Journalists Association
  21. Movement for Land and Agriculture Reform (MONLAR)
  22. Families of the Disappeared


Related Articles:
23.03.20   UNHRC urged to adopt multitrack investigations, including SL..
16.03.20   UN Rights Chief must act to refer “Sri Lanka” crimes to ICC
03.11.11   Politics of the Way Ahead
30.09.11   Politics of Human Rights
25.09.11   ‘Politics of Deceit’
07.09.11   Friends, Enemies and Geopolitics


External Links:
OHCHR: Press briefing note on Sri Lanka
Amnesty International: Justice reversed for victims of the Mirusuvil massacre, Sri Lanka
HRW: Sri Lanka: Justice Undone for Massacre Victims


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