DHARSHAN WEERASEKERA, Attorney-at-Law

I read with amusement an article in The Island of 12^th July 2018 titled, ‘Dons condemn incendiary statements against HRCSL.’ It’s about a letter written by 50 academics condemning the conduct of a number of ex-military officers who had said that academics (or anyone else) found to have supported attempts by certain foreign countries, with the help of the Tamil Diaspora, to compromise the sovereignty of Sri Lanka should be treated as traitors, and if found guilty, hanged.

Today, the sad reality in this country is that academics are doing politics, and when this is pointed out, instead of mending their ways and doing what is traditionally – or perhaps ideally – expected of academics, which is to provide informed and scholarly commentary on issues of national importance, attack the critics, in this case ex-military officers.  As far as I’m concerned, if our fighting-men can’t call a spade a spade, then no one can.

In this article, I shall briefly comment on two key passages in the letter, then explain what I understand by the word ‘treason’ and why in a general sense it may not be entirely wrong for most Sri Lankans, not just ex-military officers, to consider that anyone aiding or abetting the agents of foreign countries to compromise Sri Lanka’s sovereignty ought to be hanged.

POINTS TO CONSIDER IN THE LETTER

I emphasize that, I am relying entirely on the letter as reported in The Island of 12^th July 2018.  Here’s the first passage on which I wish to comment.  The letter says:

‘It has been many months now since a certain group of individuals, led by ex-military personnel, proclaimed before the media that individuals who are supportive of a new Constitution ought to be considered as ‘traitors’ acting against the sovereignty and territorial integrity of Sri Lanka.  Such individuals, it was further stated, ought to be held accountable for their ‘traitorous’ acts in a court of law and punished with death and that action will be taken against them at a future date when a new political leadership assumes power.’[1]

In respect of the above, I draw the reader’s attention to the following matters:

If by ‘new Constitution’ the 50 academics mean the process that began on 9^th March 2016 with the entire Parliament converting itself into a ‘Constitutional Assembly,’ one must remember that the aforesaid event happened in the backdrop of the Government enjoying a 2/3 majority because 45 SLFP MP’s had joined the UNP to form a ‘National Government,’ something for which the said 45 did not have a mandate from their voters.

Further, Chapter 12 of the Constitution, which sets out the procedure for bringing constitutional amendments does not state anywhere that Parliament can or must turn itself into a ‘Constitutional Assembly’ in order to bring such amendments.

On account of both grounds above, many critics have argued that the constitution-making process launched under the Framework Resolution of 9^th March 2016.  These critics have included former Justice Minister Mr. Wijeyadasa Rajapakse and former Chief Justice Sarath N. Silva.

It is reasonable to suppose that, when a former Justice Minister and a former Chief Justice say that there’s a fundamental legal problem with a particular course of action being pursued by the Government, regardless of whether they may be correct in such assessment, a responsible Government would take some steps to obtain a definitive legal opinion on the matter, just to be on the safe side.

The Government has the means to obtain such an opinion, for instance, by getting the President to invoke Article 129 and request the Supreme Court for an Advisory Opinion on the matter in question.

To my knowledge, none of the 50 academics who have condemned a number of our ex-military men for allegedly exceeding the bounds of propriety in criticizing those who support the bid to bring a new Constitution have written an article assessing the legality of the constitution-making process.  Neither have they seen fit to publicly call on the President to invoke Article 129 and obtain a definitive ruling on the matter.

Meanwhile, to turn to the ‘Interim Report’ of the Constitutional Steering Committee which was tabled in September 2017 – the report will be the basis for any final Constitutional Proposal if and when such a proposal is ever tabled – it should be noted that one of the key proposals in that report is to delete the term ‘Unitary State’ in Article 2 of the Constitution and replace it with the term ‘aekiya rajyaya/orumiththa nadu.’

The legal effect of such a change will be to turn Sri Lanka into a confederation of the 9 Provinces, with each Province enjoying inter alia a right to unilateral secession.[2]  In short, it will put in place the legal foundation for a future secession by one or more of the Provinces.

I need hardly mention that, the above is happening while the Government is continuing to postpone Provincial Council elections, the best way since the 10^th February Local Government elections for the People to let the Government know what they think of the Government’s performance over the past three years, including the constitution-making process.

Under the circumstances, it would not be surprising if most Sri Lankans, not just ex-military men, consider that persons who support the bid to bring the new Constitution are ‘traitors’ bent on compromising the sovereignty and territorial integrity of this country.   In fact, most Sri Lankans would probably say that hanging is too good for such persons!

The second passage on which I wish to comment is the following.   The letter says:

‘Statements such as the above [i.e. alleged statements by the ex-military men that the Chairperson of the HRCSL Dr. Deepika Udagama is unfairly preventing Sri Lankan military personnel from serving in UN peacekeeping missions] are not only threats directed at the life and liberty of the Chairperson of the HRCSL.  They amount to threats leveled at all public officials, academics and citizens of this country who subscribe to political opinions different from those who utter such statements.  These statements, which are of a hateful and defamatory character, amount to threats that endanger human life and personal safety and are thus punishable under the law.’[3]

In respect of the above, I draw the reader’s attention to the following matters:

If what the ex-military men have done is to ask that the law be applied to persons who may be guilty of treason, such a recommendation by itself cannot be considered a ‘threat that endangers human life and personal safety.’  Whether or not someone is guilty of treason is a question of fact and law that a court must ultimately decide.  Recommending that someone be tried for treason doesn’t mean that the trials will necessarily he held, let alone that anyone will be hanged.  So, no one needs to worry.

I am not sure exactly what the head of the HRCSL may have said or done to get the ex-military men in question annoyed at her, but, the general issue involved, if I’m not mistaken, is that numerous academics and NGO’ists in recent years have been claiming that our armed forces are guilty of war crimes.

Generally speaking, charges of war crimes fall into two types:  those leveled against individual soldiers, and those leveled against an armed force as such and by extension the State, i.e. where ‘command responsibility’ is alleged, which ties a particular offence to the chain of command of an army and ultimately the civilian leadership.  The aforesaid academics and NGO’ists are leveling both of these types of charges.

Whether one accuses a particular soldier or the army collectively of war crimes, it goes without saying that the accuser must be able to first substantiate his or her allegations with sufficient evidence.

To the best of my knowledge, soon after the end of the war in May 2009, the Lessons Learnt and Reconciliation Commission, along with certain reports of the UN Human Rights High Commissioner, recommended that a number of incidents be investigated to see if war crimes had been committed by individual soldiers, and the armed forces promptly launched those investigations. Some of those investigations have now been completed while others may still be continuing.

However, to the best of my knowledge, there are only two reports associated with the UN that leveled a charge of war crimes against the State, i.e. which said that the chain of command of the armed forces plus the civilian leadership that oversaw the war is responsible for such crimes.

The two reports are:  ‘The Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka (POE)’ in 2011; and, ‘The Office of the UN High Commissioner for Human Rights Investigation on Sri Lanka (OISL)’ in 2015.

Of these two, even the UN has now more or less conceded that the POE is of questionable legality.  That leaves the OISL report as the sole basis for the claim that the Sri Lankan armed forces are collectively responsible for war crimes.  Unfortunately, neither the UN nor the Government ever subjected the OISL report to an official assessment in order to find out if its conclusions followed from its evidence.

To my knowledge, no group of Sri Lankan academics, including the 50 who have signed the letter, have ever carried out such an assessment, nor have I seen any letter by them urging the Government to carry out such an assessment.

To digress a moment, in February 2017, a number of private citizens including myself carried out an assessment of the OISL report, and we found the report to be full of lies, obfuscations, contradictions, and also characterized by a total failure to consider exculpatory evidence.

The report of our findings, titled, ‘A Factual Appraisal of the OISL Report:  A Rebuttal to the Allegations against the Armed Forces,’ was handed over to the UN representative in Sri Lanka, along with the Presidential Secretariat, and also forwarded to the Office of the UN High Commissioner for Human Rights.  We have not had any response to the report so far in spite of repeated inquiries.

Therefore, as per the legal maxim, ‘Qui tacit consentire videtur’ (‘He who is silent appears to consent’) we have concluded that the aforesaid institutions have now accepted the analysis an conclusions of our report, and have formally notified them of this.  Hence, as far as I’m aware, there is at present no rational basis for anyone to keep claiming that the Sri Lankan armed forces are collectively responsible for war crimes.

Under the circumstances, if Dr. Udagama or anyone else argues that Sri Lankan armed forces personnel ought not to be given an opportunity to participate in UN peacekeeping missions because of allegations that the armed forces are collectively responsible for war crimes, (I’m not saying this is their argument but if it is) then not just ex-military men but any citizen of Sri Lanka can demand that Udagama et al show evidence for their claims, and if they can’t, hold them accountable for such failure.

TREASON

The constraints of time prevent me from discussing the above topic in the detail it deserves, but in general, ‘treason’ is understood as the waging of war against one’s country or helping the enemies of one’s country to wage war against it.  It is an offence under Section 114 of the Penal Code, and the punishment if found guilty is death.

It is also generally understood that, a person can commit treason only during a time of war, so normally persons who promote or advocate policies that can arguably be helpful to a country’s enemies cannot be considered as having committed treason, unless the aforesaid acts are done during a time of war.

However, when our Penal Code was written in the mid 1880’s, the country had not experienced Tamil Separatism, or the related terrorism.  We also did not have a Constitution that explicitly vests the sovereignty of the country in the People.  In my view, it may be possible given the realities of today that an act that compromises the sovereignty of the country even at a time when the country is not at war can be interpreted as an attack on the People and therefore by definition an act of war.

The whole thing will depend on the courts.  Interested parties can file an experimental case and see what happens.  The point is this.  I doubt that the Sinhalas when they take power will have the time to go after ‘small fry’ academics and NGO’ists for what the latter may have done in the past few years.  The Sinhalas will be too busy pulling the country out of the social, political and constitutional abyss into which the present Government has pushed it since coming to power in 2015.

However, academics and NGO’ists will do well remember that rights always go hand in hand with responsibilities.  If certain academics and NGO’ists have been in the habit of overtly or tacitly helping the cause of the Tamil separatists, and this includes helping to push a new Constitution that seeks to turn Sri Lanka into an ‘orumiththa nadu,’ they must know that they can be asked to account for their actions.

[1] ‘Dons condemn incendiary statements against HRCSL,’ The Island, 12^th July 2018

[2] See for instance my articles, ‘The Interim Report of the Constitutional Steering Committee of Sri Lanka:  A Brief Analysis, parts 1, 2 and 3’ published in www.lankaweb.com in early April and May 2018

[3] ‘Dons condemn incendiary statements against HRCSL,’ The Island, 12^th July 2018