International Community Should Enforce Universal Jurisdiction Clause Against Sri Lankan Officials
The timing was perfect, the country was in the grip of unimaginable human horror. Scores of people have been infected with coronavirus pandemic across the country. Despite the island-wide locked down the number of victims to COVID-19 is rising in geometric progression. Yet, President Gotabaya has thought it fit to use/misuse his presidential powers to pardon former Staff Sergeant Sunil Ratnayake who was in the death row for the last 5 years.
Gotabaya Rajapaksa came to office as President in 2019, promising to release “war heroes” who had been imprisoned on “false” charges. He has now made good his promise.
In the recent past, there were well-orchestrated campaigns by Sinhala-Buddhist extremist organizations and militant Buddhist Bhikkus demanding Sunil Rathnayake’s release. So his release from prison on March 26, 2020 came as no surprise except for the timing. President Gotabaya has exploited the current rage of CONVID 19 pandemic that has caused widespread panic, misery and uncertainty among the people. It is in effect a stealthy exercise to blunt criticism by human rights organizations and others crying foul.
News reports were doing the rounds for months claiming that murder convict Rathnayake will receive a presidential pardon. He was found guilty by the courts and sentenced to death in 2015 for the murder of eight Tamil civilians by blindfolding, slitting their throats and dumping their bodies into a sewer on 10 November 2000. The 8 victims included a 5-year-old child and two teenagers who have gone to Mirusuvil to inspect their houses with prior permission from the army.
The deceased belonged to four families. A single-family lost four members, another lost two breadwinners. Two more also lost primary breadwinners.
The killings have been dubbed the ‘Mirusuvil massacre.’ Ponnuthurai Maheswaran, who managed to survive and escape from the army. He testified in court and identified at least five of the soldiers responsible.
The Tamil Guardian in January 2020 quoted UNP MP Ajith Perera saying “Now we have got information that the government has taken measures to release 34 members of the intelligence and Sunil Rathnayake, as mentioned during the Gotabaya Rajapaksa election campaign.”
“That is how a leader who does what they say works,” continued Perera. “Therefore, I would like to extend my gratitude to president Gotabaya Rajapakse and Minister of Justice Nimal Siripala De Silva for taking this decision.”
At the time of the massacre, Rathnayake was a member of the long–range reconnaissance patrol or LRRP attached to the Gajaba Regiment of the Sri Lankan Armed Forces. Both President Gotabaya Rajapaksa and the Defence Secretary Kamal Gunaratne were once members of the Gajaba Regiment. LRRP was well known for their atrocities and the Mirusuvil massacre was a textbook example.
The Centre for Human Rights and Development (CHRD) gave details of the murder case as follows:
It took 15 long years for the Mirusuvil case HC/1092/2002 to come to an end on June 25, 2015. The Colombo High Court found Army Sergeant Sunil Rathnayake guilty and sentenced him to death for killing 8 civilians in Mirusuvil, Jaffna in 2000.
The Court was of the opinion that there was sufficient evidence to prove his guilt. However, four other soldiers in connection to the massacre were acquitted due to insufficient evidence.
The incident occurred on December 19 2000, when 9 civilians including a 5-year-old child in the Jaffna district disappeared from their homes in Mirusuvil in the Thenmaradchy area. Nine men obtained permission from the Sri Lankan Army to visit their homes and see their properties as they were displaced to the Vadamaraatchi area. Later, it was reported that they were missing. On December 24, 2000 one of the missing Maheswaran escaped from army custody with severe wounds and injuries all over his body as a result of torture and gave information and details of the remaining eight. On his evidence, a mass grave was discovered and corpses of the eight men were found during exhumation which took place on December 25, 2000.
This case was taken up at the Chavakachcheri Magistrate’s Court on the same day and subsequently, 14 army personnel were taken into custody. Later, the case was transferred to the Anuradhapura Magistrate’s Court at the request of the suspects to the Attorney General’s Department as they feared it would be a threat to their lives. Subsequently, it was taken up on July 22, 2002, and November 29, 2002, at the Anuradhapura Magistrate’s Court.
Later the Chief Justice appointed a trial-at-bar at the High Court, Colombo and nominated three judges for trial at bar. They were Justice Sarath Ambepitiya, Justice S.I. Imam and Justice Kumar Ekaratne. The CHRD retained lawyers to hear the case at trial-at-bar. The trial-at-bar commenced on November 27, 2002, at the High Court Colombo. While five were indicted, the rest were released on bail. Attorneys-at-law D. W. Abeykoon PC, K.D.C. Kumarage, K.S. Ratnavel and M. Remedies appeared for the aggrieved parties. The next date for trial was fixed for January 29, 2003.
Trials were held at the High Court, Colombo from January to July 2003. Later a legal issue cropped up whether a confession made to military police is admissible in Court. The judges ordered the defence counsel to approach the Supreme Court on this matter and make a decision. Thereafter the case was postponed till March 16, 2004. The Special Bench of the Supreme Court comprising five judges dismissed petitions of appeal challenging the admissibility of the confession. In the meantime, two judges of the bench were removed and a new bench was constituted which comprised Justice Sarath Ambepitiya, Justice Upali Abeyratne and Justice Sisira de Abrew. The new date for trial to commence was fixed for November 4, 2004.
When trials resumed on November 4, 2004, the case was ordered to be continued from the point it ended during the last date. Later Justice Sarath Ambepitiya ordered the trial to continue from the point it ended on November 22, 2004.
Unfortunately, Justice Sarath Ambepitiya was gunned down by assassins on November 19, 2004. Just before his assassination, he has sentenced a female drug trafficker for life. Justice Sarath Ambepitiya’s bodyguard Police Inspector Upali Bandara was also killed along with him.
Since the Chief Justice had to appoint a new judge, the case was fixed for December 16, 2004. But when the case was taken up on that day a new judge was not appointed and the case was postponed to January 19, 2005. Attorneys K. S.Ratnavel and K. Shanmugalingam were retained by CHRD to appear on behalf of the aggrieved party.
The trial at bar went on in the High Court of Colombo but at the beginning of 2007, the case was stopped temporarily. In September 2008, the new date for the next hearing was informed and on November 11, 2008, the case was taken up before the three judges in the Colombo High Court.
The High Court panel visited the scene of the murder on April 28, 2011. Judges Deepali Wijesundara, W.U.M.P.B. Warawewa and Sunil Rajapaksa inspected the site and the STF and the Air Force provided security to the area during the inspection. The judges also inspected the Chavakachcheri court premises where an identification of the suspect took place.
This came about when the three-member bench of Colombo High Court unanimously, decided personally to visit the site where eight civilians were murdered in Mirusuvil 11 years back. When the case was taken up on February 15, 2011, the three-member bench led by Judge Ms Deepali Wijesundara decided to visit the crime scene with the consent of the petitioner and the defendant. Thereafter, on March 10, 2011, Deputy Solicitor General Sarath Jayamane stated that an officer must be appointed by the Colombo High Court in order to make contacts.
He further added the report on the Mirusuvil massacre has been submitted and out of the three places mentioned in the report two have been changed and therefore Court must order to appoint two competent officers from the Ministry of Defense and Ministry of justice as there might be land mines in these areas in order to continue the journey. He requested the bench that this must be announced at the next hearing.
