{"id":79332,"date":"2018-07-15T22:38:55","date_gmt":"2018-07-16T04:38:55","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=79332"},"modified":"2018-07-15T04:58:13","modified_gmt":"2018-07-15T11:58:13","slug":"the-letter-by-50-academics-protesting-against-alleged-intimidation-by-ex-military-officers","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2018\/07\/15\/the-letter-by-50-academics-protesting-against-alleged-intimidation-by-ex-military-officers\/","title":{"rendered":"THE LETTER BY 50 ACADEMICS PROTESTING AGAINST ALLEGED INTIMIDATION BY EX-MILITARY OFFICERS"},"content":{"rendered":"

DHARSHAN WEERASEKERA, Attorney-at-Law<\/strong><\/em><\/span><\/h2>\n

I read with amusement an article in The Island<\/em> of 12th<\/sup> July 2018 titled, \u2018Dons condemn incendiary statements against HRCSL.\u2019 It\u2019s 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.<\/p>\n

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 \u2013 or perhaps ideally<\/em> \u2013 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.\u00a0 As far as I\u2019m concerned, if our fighting-men can\u2019t call a spade a spade, then no one can.<\/p>\n

In this article, I shall briefly comment on two key passages in the letter, then explain what I understand by the word \u2018treason\u2019 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\u2019s sovereignty ought to be hanged.<\/p>\n

POINTS TO CONSIDER IN THE LETTER<\/strong><\/p>\n

I emphasize that, I am relying entirely on the letter as reported in The Island<\/em> of 12th<\/sup> July 2018.\u00a0 Here\u2019s the first passage on which I wish to comment.\u00a0 The letter says:<\/p>\n

\u2018It 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 \u2018traitors\u2019 acting against the sovereignty and territorial integrity of Sri Lanka.\u00a0 Such individuals, it was further stated, ought to be held accountable for their \u2018traitorous\u2019 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.\u2019[1]<\/strong><\/a><\/em><\/p>\n

In respect of the above, I draw the reader\u2019s attention to the following matters:<\/p>\n

If by \u2018new Constitution\u2019 the 50 academics mean the process that began on 9th<\/sup> March 2016 with the entire Parliament converting itself into a \u2018Constitutional Assembly,\u2019 one must remember that the aforesaid event happened in the backdrop of the Government enjoying a 2\/3 majority because 45 SLFP MP\u2019s had joined the UNP to form a \u2018National Government,\u2019 something for which the said 45 did not have a mandate from their voters.<\/p>\n

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 \u2018Constitutional Assembly\u2019 in order to bring such amendments.<\/p>\n

On account of both grounds above, many critics have argued that the constitution-making process launched under the Framework Resolution of 9th<\/sup> March 2016.\u00a0 These critics have included former Justice Minister Mr. Wijeyadasa Rajapakse and former Chief Justice Sarath N. Silva.<\/p>\n

It is reasonable to suppose that, when a former Justice Minister and a former Chief Justice say that there\u2019s 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.<\/p>\n

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.<\/p>\n

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.\u00a0 Neither have they seen fit to publicly call on the President to invoke Article 129 and obtain a definitive ruling on the matter.<\/p>\n

Meanwhile, to turn to the \u2018Interim Report\u2019 of the Constitutional Steering Committee which was tabled in September 2017 \u2013 the report will be the basis for any final Constitutional Proposal if and when such a proposal is ever tabled \u2013 it should be noted that one of the key proposals in that report is to delete the term \u2018Unitary State\u2019 in Article 2 of the Constitution and replace it with the term \u2018aekiya rajyaya\/orumiththa nadu.\u2019 <\/em><\/strong><\/p>\n

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<\/em> a right to unilateral secession.[2]<\/a>\u00a0 In short, it will put in place the legal foundation for a future secession by one or more of the Provinces.<\/p>\n

I need hardly mention that, the above is happening while the Government is continuing to postpone Provincial Council elections, the best way since the 10th<\/sup> February Local Government elections for the People to let the Government know what they think of the Government\u2019s performance over the past three years, including the constitution-making process.<\/p>\n

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 \u2018traitors\u2019 bent on compromising the sovereignty and territorial integrity of this country.\u00a0 \u00a0In fact, most Sri Lankans would probably say that hanging is too good for such persons!<\/p>\n

The second passage on which I wish to comment is the following.\u00a0\u00a0 The letter says:<\/p>\n

\u2018Statements 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.\u00a0 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.\u00a0 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.\u2019[3]<\/strong><\/a><\/em><\/p>\n

In respect of the above, I draw the reader\u2019s attention to the following matters:<\/p>\n

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 \u2018threat that endangers human life and personal safety.\u2019\u00a0 Whether or not someone is guilty of treason is a question of fact and law that a court must ultimately decide.\u00a0 Recommending that someone be tried for treason doesn\u2019t mean that the trials will necessarily he held, let alone that anyone will be hanged.\u00a0 So, no one needs to worry.<\/p>\n

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\u2019m not mistaken, is that numerous academics and NGO\u2019ists in recent years have been claiming that our armed forces are guilty of war crimes.<\/p>\n

Generally speaking, charges of war crimes fall into two types:\u00a0 those leveled against individual soldiers, and those leveled against an armed force as such and by extension the State, i.e. where \u2018command responsibility\u2019 is alleged, which ties a particular offence to the chain of command of an army and ultimately the civilian leadership.\u00a0 The aforesaid academics and NGO\u2019ists are leveling both of these types of charges.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

The two reports are:\u00a0 \u2018The Report of the Secretary General\u2019s Panel of Experts on Accountability in Sri Lanka (POE)\u2019 in 2011; and, \u2018The Office of the UN High Commissioner for Human Rights Investigation on Sri Lanka (OISL)\u2019 in 2015.<\/p>\n

Of these two, even the UN has now more or less conceded that the POE is of questionable legality.\u00a0 That leaves the OISL report as the sole basis for the claim that the Sri Lankan armed forces are collectively responsible for war crimes.\u00a0 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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

The report of our findings, titled, \u2018A Factual Appraisal of the OISL Report:\u00a0 A Rebuttal to the Allegations against the Armed Forces,\u2019 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.\u00a0 We have not had any response to the report so far in spite of repeated inquiries.<\/p>\n

Therefore, as per the legal maxim, \u2018Qui tacit consentire videtur\u2019 (\u2018He who is silent appears to consent\u2019) we have concluded that the aforesaid institutions have now accepted the analysis an conclusions of our report, and have formally notified them of this.\u00a0 Hence, as far as I\u2019m 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.<\/p>\n

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\u2019m 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<\/em> show evidence for their claims, and if they can\u2019t, hold them accountable for such failure.<\/p>\n

TREASON<\/strong><\/p>\n

The constraints of time prevent me from discussing the above topic in the detail it deserves, but in general, \u2018treason\u2019 is understood as the waging of war against one\u2019s country or helping the enemies of one\u2019s country to wage war against it.\u00a0 It is an offence under Section 114 of the Penal Code, and the punishment if found guilty is death.<\/p>\n

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\u2019s enemies cannot be considered as having committed treason, unless the aforesaid acts are done during a time of war.<\/p>\n

However, when our Penal Code was written in the mid 1880\u2019s, the country had not experienced Tamil Separatism, or the related terrorism.\u00a0 We also did not have a Constitution that explicitly vests the sovereignty of the country in the People.\u00a0 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<\/em> as an attack on the People and therefore by definition an act of war.<\/p>\n

The whole thing will depend on the courts.\u00a0 Interested parties can file an experimental case and see what happens.\u00a0 The point is this.\u00a0 I doubt that the Sinhalas when they take power will have the time to go after \u2018small fry\u2019 academics and NGO\u2019ists for what the latter may have done in the past few years.\u00a0 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.<\/p>\n

However, academics and NGO\u2019ists will do well remember that rights always go hand in hand with responsibilities.\u00a0 If certain academics and NGO\u2019ists 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 \u2018orumiththa nadu<\/em>,\u2019 they must know that they can be asked to account for their actions.<\/p>\n

[1]<\/a> \u2018Dons condemn incendiary statements against HRCSL,\u2019 The Island<\/em>, 12th<\/sup> July 2018<\/p>\n

[2]<\/a> See for instance my articles, \u2018The Interim Report of the Constitutional Steering Committee of Sri Lanka:\u00a0 A Brief Analysis, parts 1, 2 and 3\u2019 published in www.lankaweb.com<\/em> in early April and May 2018<\/p>\n

[3]<\/a> \u2018Dons condemn incendiary statements against HRCSL,\u2019 The Island<\/em>, 12th<\/sup> July 2018<\/p>\n","protected":false},"excerpt":{"rendered":"

DHARSHAN WEERASEKERA, Attorney-at-Law I read with amusement an article in The Island of 12th July 2018 titled, \u2018Dons condemn incendiary statements against HRCSL.\u2019 It\u2019s 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[117],"tags":[],"class_list":["post-79332","post","type-post","status-publish","format-standard","hentry","category-dharshan-weerasekera"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/79332","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=79332"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/79332\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=79332"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=79332"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=79332"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}