Army Commander should learn the Army Act
Posted on May 25th, 2019

by Tassie Seneviratne Courtesy The Island

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Army Commander, Mahesh Senanayake

I could not believe my eyes when I read in the Sunday Island of 19th May 2019, statements attributed to the Army Commander, Mahesh Senanayake. He is reported to have stated, inter alia, that, “If a soldier has done something wrong, it is the people who have given the orders, who should be held responsible. So I request kindly, all of you to go and find out who gave the order to him.” – Most astonishing!

If the Army Commander has in fact made this statement, (which he has not denied) he is referred to the Army Act, wherein it is clearly stated that soldiers should carry out only lawful and legal orders.

The Army Commander has made this utterance to cover up the controversial re-instatement of an army officer accused of several crimes including the murder of one journalist and torture of two others.

There is a landmark case in this very regard, which the Army Commander, if he is worth his salt, should be acquainted with. The case in point is the case against Lieutenant Volunteer Officer Alfi Wijesuriya, in the Kataragama Beauty Queen murder case. When he realized that the prosecution had made a watertight case against him, Lieutenant Alfi Wijesuriya stated in evidence that he carried out orders of the Co-ordinating Officer, Col. Nugawela, to “bump off” the prisoners – under Emergency Regulations. The prosecuting Senior State Counsel asked only two questions. First Q. was, whether an order to shoot a prisoner in custody, was a lawful order. His answer was “No.” Second Q: – Having referred him to the Army Act, he was asked if he was bound to carry out unlawful orders. His obvious answer was also, “No.” That sealed his fate. There was no chance in the appeal either, because he was convicted on his own admission.

In the case of Major Bulathwatte, if what the Army Commander says is Major Bulathwatte’s position too, he will have to face the same fate as Lieutenant Alfi Wijesuriya.

The Army Commander should not mislead the people with this type of skullduggery.

Complicity of Commanding Officers: The fact, that an unlawful order from a Commanding Officer is no defence to a soldier committing a crime, does not mean that the Commanding Officer who gave the unlawful order is absolved of the offence. He is culpable of aiding and abetting the offence. A delayed statement of an accused, implicating the Commanding Officer in his defence, however, is not reliable evidence. If there be corroborating evidence to prove his allegation, then the courts will pass judgement accordingly.

(The writer is a Retired Senior Superintendent of Police – in support of the fourth estate)

2 Responses to “Army Commander should learn the Army Act”

  1. aloy Says:

    My observation in this regard is: looking at the way things have been happening in SL higher the rank of the officer, bigger the crime. All those high officers who got info about 21/4 looked the other way by becoming pen pushers. This is a crime on which they should be charged.

    I like to tell this ‘ex- senior’ that a soldier is just another person who has been taught through a rigorous training to carry out the orders. He may not have extensive knowledge about law maters (army act etc.), he may carry out orders given to him by seniors; bumping off Lasantha et al probably was in the best interest of the nation. At that time he used to write many damaging articles against a government that was fighting a protracted war.

    Although the learned judges sentenced that soldier in Manamperi’s case, if the government did not bump off all the JVP terrorists, this country would have become another communist state like North Korea. And if MR’s government did not act in the way they did, we would have been either under a South Indian ruler or still fighting an unending war.

  2. Dilrook Says:

    Not so.

    The Army Commander is right.

    If the chain of command was in tact, all actions of the army soldiers are the responsibility of civilian leaders who got them to do so. If there was a break in the chain of command (as in the given case) the soldier is individually responsible.

    For instance in May 2009, there was no break in the chain of command. If any soldier did any crime in fighting the LTTE the responsibility falls on civilian leaders. If the act had nothing to do with the LTTE, then it is his personal responsibility.

    It is assumed that the chain of command was intact until proven otherwise.

    This is made more complicated in Sri Lanka where some army and navy personnel were directed by civilian leaders to do illegal acts with the threat of murder, prison terms, etc. Once again civilian leaders are responsible.

    Civilian leaders cannot get only the credit for winning the war. They must also get the blame for any war crime that might have happened in the course of fighting the war.

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