KAMALIKA PIERIS

The Eelam war is not the noble war it is made out to be. It is treason. Treason is considered to be “the highest of all crimes”. Treason” means criminal disloyalty to the state. When war is waged against the state, it is known as High Treason. War is considered the most serious offense that can be committed against a government. The punishment for those charged with treason is death or imprisonment, including life imprisonment.  A person who commits treason is known in law as a traitor. Another word used for traitor is Quisling.

Most countries have laws against high treason. In the USA attempting to overthrow the government through waging war against the state is considered high treason.  It carries a sentence of death or imprisonment, also fines. Treason trials were held during the American Civil War.    Britain has a separate Treason Act.

In Vietnam, any Vietnamese citizen acting in collusion with a foreign country with a view to causing harm to the independence, sovereignty, unity and territorial integrity of the Fatherland, the national defense forces, the socialist regime or the State of the Socialist Republic of Vietnam shall be sentenced to capital punishment, life imprisonment of between twelve and twenty years of imprisonment.

Sri Lanka’s Constitution   prohibits waging war against the state. Chapter 20 and 21 of the Constitution of Sri Lanka (updated to 2021) says:

• 157A. (1) No person shall, directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka.
• 157A. (2) No political party or other association or organization shall have as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka.
• 157A (4) Where any political party or other association or organization has as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka, any person may make an application to the Supreme Court for a declaration that such political party or other association or organization has as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka.
• 161(4) where a Member directly or indirectly, in or outside Sri Lanka, supports, espouses, promotes, finances, encourages or advocates the establishment of a separate State within the territory of Sri Lanka, any person may make an application to the Court of Appeal for a declaration that such member has directly or indirectly, in or outside Sri Lanka, supported, espoused, promoted, financed, encouraged or advocated the establishment of a separate State within the territory of Sri Lanka.

Waging war against the state is a criminal offence under the Penal Code of Sri Lanka. Chapter VI of the Penal code deals with ‘Offences against the state’.

• Section 114 says, Whoever wages war against the Republic, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment of either description, which may be extended to twenty years, and shall forfeit all his property.”
• Section 115 says Whoever conspires to deprive the People of the Republic of Sri Lanka of their Sovereignty in Sri Lanka or any part thereof, or conspires to overawe, by means of criminal force, any of the organs of Government, shall be punished with imprisonment and shall also be liable to a fine.”

LTTE committed high treason in the Eelam Wars. LTTE took arms against a sovereign state.  They conducted a protracted civil war, lasting over 30 years. Such treason would lead to severe punishment in any other country, said. Rohan Gunaratne . Analysts observed that elsewhere in the world, High Treason is punishable by death. Also  nowhere in the world would   a group like the LTTE, be allowed to   hold regular memorial services and erect monuments  as they are doing today in Jaffna.

The call for Eelam  is also a treasonable activity said critics. Ven. Keppetiyagoda Siriwimala of Rajopawanaramaya, Getambe, Peradeniya, said   C.V.Wigneswaran, former Supreme Court judge, should be arrested for calling for a separate government for the North and East. (2016) Jayantha Gunasekera said any call for separation should be cause for high treason with penal sanctions.

 In addition to Treason, there is also the charge of Sedition. Sedition is defined as “conduct or speech inciting people to rebel against the authority of the state.” Any attempt to   conduct civil war, arm citizens against any other part of the country, is Sedition.

 Sedition is limited to the offense of organizing or encouraging opposition to government through speech and writing. The publication of seditious writing (seditious libel”) or the utterance of seditious speech (seditious words”) are considered crimes.  Today , even the display of a flag of separatist movement is also considered sedition.

There is now a call in Sri Lanka for a law against ‘sedition’. There is no such law against sedition at present. The government should pass a sedition act to charge and prosecute anyone supporting separatism    said Rohan Gunaratne.

We must introduce a new ‘Sedition Act’, said K Godage. It is also absolutely important to have a Sedition Act. Malaysia and Singapore have Sedition Acts.Any word or action which is deemed to encourage Separatism must be made a criminal offence and any political party deemed to support Separatism should be banned. The encouragement of Seditious tendencies must be made punishable with a minimum of ten years rigorous imprisonment, Godage said.

In 1976,TUF leader A Amirthalingam, together with other leading Tamil politicians M. Sivasithamparam, V. N. Navaratnam, K. P. Ratnam and K. Thurairatnam were  distributing leaflets   in Jaffna giving the Vaddukoddai Resolution passed by the   TULF in that year  and saying that  they intended to work towards a separate state. They were arrested under the Emergency Regulations, taken to Colombo and tried for sedition. At the trial at bar case 72 Tamil lawyers including S. J. V. Chelvanayakam and G. G. Ponnambalam spoke for the defence.

The action was of course, clearly seditious, therefore the defence focused on a ‘point of law’, the way the Emergency was proclaimed. The Tamil lawyers also   used the opportunity, to make a case for Tamil self determination. The High Court at Bar, on September 10, 1976, upheld the objection of the defence on the validity of the Emergency Regulations. Appapillai Amirthalingam, the Secretary General of TULF, was discharged of charges of possessing and distributing seditious literature.

The State challenged this decision before the Supreme Court. Attorney General Siva Pasupati appealed for a revision of the High Court-at-Bar order in the case against Amirthalingam. On December 10, 1976, the five-judge Bench, by a unanimous verdict, held that the proclamation of the state of Emergency was valid. Soon after the Attorney General announced that the Government will not be preceding the case against the four ITAK leaders relating to the possession and distribution of seditious literature. (High Court Trial-at-Bar No. 1 of 1976, S.C. Application No.658 of 1976 and S.C. Application No. 650 of 1976)

Nallaratnam Singarasa was convicted by the High Court on five charges that he, between 1 May 1990 and 31 December 1991 together with LTTE leaders like Sornam and Pottu Amman, conspired to overthrow the lawfully elected government and attacked Army camps in Jaffna Fort, Palaly and Kankesanthurai. The charges against him had been brought under the Emergency Regulations and the Prevention of Terrorism Act. He was sentenced to 50 years rigorous imprisonment.

Singarasa appealed against his conviction to the Court of Appeal, which dismissed his case on 6 July 1999, but they reduced his sentence to 35 years RI. Singarasa then sought special leave to appeal from the judgment of the Court of Appeal. A Bench of the Supreme Court comprising of Justices Mark Fernando, Wadugodapitiya, and Wijetunga refused special leave to appeal on 28 January 2000.

 Sinharaja then went to UNHRC in Geneva, obtained support for his case and returned to Supreme Court, where his appeal was once again rejected. In doing so, Supreme Court was rejecting both Sinharasa’s defense and also the advice sent to them from UNHRC  on how to look at this case. Sinharasa was a test case for the Tamil Separatist Movement. (Continued)