Chapter 7 of ARUNODAYA
Aim and Purpose
Earlier chapters of this Manual dealt with many matters, such as.:
(a) what constitutes human rights - how they are accepted and practised internationally;
(b) the nature of the State; Democracy; and the Rule of Law;
(c) Fundamental rights guaranteed under the Constitution (in Sri Lanka); and
(d) the role of the Military in a democratic state.
The purpose was to provide a context against which human rights violations by the Military in the recent past can be viewed. This was necessary to:
(1) show the legal, moral and ethical framework within which the Military must function;
(2) draw attention to the ways that the Military has violated human rights.
The present chapter tries to show that all this can be changed. It deals with how this can be done, and how a new culture that respects human rights, can be built up. It is suggested that the answer lies within the Military establishment itself: namely, the proper exercise of Military discipline. Military discipline is the “gum” that binds members of the Military together and makes the Military an effective instrument of State
Part 1 if this chapter ( for Officers and Instructors only) will begin with an examination of the problem, followed by an examination of the factors that led to its occurrence. In Part 2, the importance accorded to Discipline in the Constitution and in the Army, Navy and Air Force Acts will be dealt with, and how Discipline, in its truest sense, can be the basis of a violation-free military culture.
PART 1
[FOR THE USE OF OFFICERS AND INSTRUCTORS ONLY]
THE BREAKDOWN OF DISCIPLINE
INTRODUCTION
1.Human Rights education and the Military
This Manual is meant to serve as a handbook for military instructors in human rights. It is the result of a decision by the Defence establishment to include Human Rights (and International Humanitarian Law) in the basic training of all persons in the Army, Navy and Air Force. It is important to understand why this decision was taken. It is only then that we can begin this Chapter.
At the start of the 1990s the Military in Sri Lanka (NOTE: The word “Military” is used to mean the Army, Navy and Air Force) had acquired a bad reputation internationally. It was considered a military lacking professional standards or capability. It was particularly accused of a large number of human rights violations. The result was that the good name of the government and the people of Sri Lanka suffered. Sri Lankan citizens had to face many problems and questions when they went abroad. The government found it increasingly difficult to win the goodwill and support of other States. When applying for economic aid many questions were asked from the government about alleged human rights violations. We could not buy certain items of military equipment. Many Reports were published about the human rights violations and these were published and read all over the world.
The government of Sri Lanka decided that it was not enough merely to respond to the questions posed or to say that the accusations made were exaggerated. It was necessary to show that it was willing to accept that something had gone wrong and to take some steps to correct itself. It decided to take certain steps.
The first step was to invite an internationally respected organization to be based in the country to study the situation and publish factual reports. It would also set up a mechanism to monitor charges of violations against the Military, and to re-educate the Military in professional standards, particularly in International Humanitarian Law (IHL). The organization selected was the International Committee of the Red Cross, or ICRC.
The second step was to teach Human Rights as a subject, in addition to International Humanitarian Law (IHL). While the ICRC undertook the training in “International Humanitarian Law,”. the Centre for Studies in Human Rights (CSHR) of the Colombo University, and certain other institutions, conducted educational courses in “Human Rights”. The purpose of these courses was to make officers and soldiers aware of the need to respect the rights of the citizens of this country, and of all human beings.
The third step was taken when the Army established a Directorate of Human Rights and Humanitarian Law and the other two Services established their own units.
As a result of these steps (and others), the image of the Military has improved considerably in the world and, today, there are no new charges being made of human rights violations by the Military.
I - THE PROBLEM
2. Why was the Military accused of violations?
In this Chapter we will not go into the specific accusations made against the Military. Similarly, we will not discuss whether the accusations are justifiable or not. This matter has been dealt with in the previous Chapter. What is needed, at this stage, is for us to accept that, during a specific period, a large number of violations took place. The period during which these took place can, broadly, be said to be the decade 1981-1991. Violations did occur before 1981 as well as after 1991. However, during the period 1981-1991, violations occurred on a scale not experienced before or after.
During this period certain conditions prevailed, in the country and the Military, which led to a large number of violations. Therefore, this period has to be looked at as a special period in the military and political history of this country. In fact, it is political developments that led to the beginning and growth of what went wrong in the Military. Without understanding these developments it is not possible to understand how things went wrong.
This period is characterized by four major events:
(a) the challenge to the authority of the duly elected government by anti-democratic forces,
(b) the intervention by a foreign force: namely, the Indian Peace Keeping Force (IPKF).
(c) the emergence of terrorism as a major challenge to the Military, and
(d) the assassination of the President of the country.
During this time, the security of the nation, and its very existence, came under threat. Both the government and the Military experienced pressures they had not previously experienced, on such a scale. A government, duly elected, has the task of maintaining the power, and position, that it has been given by lawful process. It has to safeguard the sovereignty of the people. It cannot be faulted for doing that. What it can be faulted for, therefore, is not the fact that it fought back the threats, but the questionable means that it used to do so. Today, it is possible to understand how the Military came to commit these errors. It was because the Military was not specifically trained or experienced in, what amounted to, civil war conditions. This, however, in no way excuses the unjustifiable human rights violations that were perpetrated.
Before we try to correct any unfortunate situation, we must try to understand why, and how, such a situation took place. It is only then that we can take action to prevent a recurrence. Therefore, before we begin to think of the ways (that are available within the Military) to prevent such a situation from arising again, we should try to understand why and how the events of 1981-1991 -“The Decade of Violations”- occurred.
2 - BACKGROUND TO THE PROBLEM
3. Factors that led to the “Decade of Violations”
The events of 1981-91 did not arise suddenly and without cause. Many earlier factors led to this Decade, and they were, mainly, political developments. Later, these affected the Military. Some of these developments arose in the years before Independence, but most of them arose later. It is possible to identify the following as the major events and factors, without assigning blame to any person or persons. These are listed randomly below, and not in a strict chronological order.
3.1. The Factors
3.1.1 At Independence, a series of Defence Agreements were signed with Britain. In a way, it deprived the Military the opportunity of preparing itself to meet an external threat to the country. Its primary role was confined Internal Security (IS) duties. These duties continued to expand in scope and frequency. Therefore the “enemy”, for the Military, was the people of the country.
3.1.2 Internal Security duties proliferated and expanded. Often the Military superseded the civilian administration.
3.1.3 A major shift in political power in 1956 resulted in initial mistrust of the Military. Increasing civil disturbances, however, led to over-dependence on the Military.
3.1.4 Growing central government control over internal administration (including over the Military itself), led to the weakening of the existing administrative/executive structure. The Military was used to achieve this by assigning it civilian authority when necessary. The Public Service reacted by trying to “freeze” the Military in a civilian role.
3.1.5 Elements in the Military and Police attempted to stage “coups”, leading to further mistrust in the Military.
3.1.6 The nature of the “enemy” changed from Marxist Trade Unionists to racial, and revolutionary fundamentalists. By meeting a challenge to an elected government by non-democratic forces the governments and the Military found common ground.
3.1.7 Power shifted away from the Tamil Parliamentary parties leading to the emergence of a separatist movement using violence as their means of achievement.
3.1.8 The government and the Military drifted towards the increased use of undue force.
3.1.9 Human and Fundamental Rights were incorporated of in the Constitution, but these were counter-balanced, or negated by laws and regulations that weakened them.
3.1.10 Escalation of conflicts between government and separatist forces led to a rapid and very large expansion of the Military.
3.1.10 The JVP (which had created political unrest in 1971) re-emerged in an attempt to gain power by violence, leaving the Military to fight anti-democratic forces on two fronts.
3.2. The Role assigned to the Military
The formation of the armed forces
Sri Lanka, or “Ceylon”, ceased to be a British Colony in 1948 and became an independent country, ruled by a Parliament elected under universal adult franchise. Till then, there had been no Regular Armed Forces though, there had been volunteer units raised i.e. units of the Ceylon Defence Force (CDF) and the Ceylon Royal Naval Volunteer Reserve (CRNVR) by the British during the Second World War. They had been demobilized after the war, though nucleus of officers and men remained under mobilization. From the time that Independence had been negotiated with Britain, national leaders had seen the need to establish an army, a navy and an air force under the control of Parliament. Therefore, not long after Independence these three forces were raised under the Army Act of 1949, and the Navy and Air Force Acts of 1950.
The Army’s fiftieth anniversary publication, “Fifty Years On”, quotes from an article by the late Hon. H.N.G.Fernando, Q.C., the then Legal Draftsman and later Chief Justice, titled “The New Army and the Law” where is enunciates a very important reason why the Army was placed under the direct and continuing control of Parliament.
“As recently as…1937…our Supreme Court relied on the fundamental principle of law enshrined in Magna Carta that no person can be deprived of liberty except by judicial process. It should then not seem strange that the principle of law which required the Government to seek the sanction of an Act of Parliament before the new Army of Ceylon was established is a principle recited in an English statute which is almost as familiar to school boys as Magna Carta, namely, the Bill of Rights of 1688. The relevant clause of the Bill of Rights was ‘That the raising and keeping of a standing army within the kingdom in time of peace, unless it be with the consent of Parliament, is against the law’”
He goes on to say that the practice in England was for an annual Act to be passed in Parliament stating that the Army shall be in force for one year and specifying the authorized strength of the force. In Ceylon, however, this requirement was done away with and a permanent Army established under Section 2 of the Army Act, with similar provisions in the Navy and Air Force Acts.
But even before these Forces had been raised, the demobilized CDF and CRNVR had been called upon in an “Aid to Civil Power” operation. This was in 1947, when the Trade Unions had called a General Strike. This was the first time that the Military was mobilized for IS duties, and the introduction of the future military personnel of Ceylon to post-war active service.
The Defence Agreements and the role of the Military
The role expected of the Military was best embodied in the Army Act as:
“(a) for the defence of Ceylon in time of war,
(b) for the prevention or suppression of any rebellion, insurrection or other civil disturbance in Ceylon, or
(c) for the performance of such duties as are referred to in Section 23” (i.e. Performance of non-military duties essential to the lives of the people).
(NOTE: In the Navy and Air Force Acts, which post-date the Army Act, (a) above is expanded to read “whether actual or apprehended” and (c) above is not mentioned.)
Although, according to the Act, the Army had to look after both external threats and internal threats, it would have been impossible for it to meet any external threats for many years to come. The government therefore signed a “Defence Agreement” with Britain for that country to provide us a “safety net” against external threats. The external threat that was feared in these early days of the “Cold war” was, largely, from Communist countries and, to a lesser extent, from India. Although Britain agreed to provide protection against external threats, Ceylon’s distance from Britain made it difficult for assistance to be provided at very short notice, particularly as India was identified as one possible threat. Thus it was agreed that Britain was allowed the use of bases in Ceylon.
The identification of India as a potential threat was due to many reasons other than our traditional fear of India. While we had been granted Independence through peaceful negotiation, India had won it by a protracted struggle. India was determined to forge its own foreign policy, which included friendly relations with the “Iron Curtain” countries. Diplomatically, India and Britain viewed each other with suspicion. Ceylon’s willingness to remain under British “protection”, therefore, made us suspect in India’s eyes. Further, when we supported the formation of a “South East Asian Treaty Organization”(SEATO), similarly to the “North Atlantic Treaty Organization”(NATO), which was strongly criticized by India and several Asian countries, Ceylon came to be regarded as an ally of the western powers: a view that led to us being denied membership in the United Nations as being a country not really free.
Identifying and meeting the internal threat
The new Ceylon Military, therefore, was left with only one operational task i.e. of dealing with internal threats, as in 1947. This situation in fact continued till 1971, when it was feared that the JVP was being helped by foreign powers. From 1948 till 1971, the only external “threats” that the Military had to face were smuggling from India (example: “Operation Coconut” by the Navy in 1950) and “illicit immigration” (examples: OPS MONTY by the Army in 1952 and the commissioning of a base, HMCyS KAL ARU, by the Navy in 1953). This concern with internal security, to the exclusion of any other, may have had the effect of turning the military mind inwards, into domestic problems. Its main “enemy” was identified as the ‘disruptive elements’ within the country. The lack of contact and experience with any other enemy, and the fact that the leaders of the new Military had learnt their trade under colonial rule were some of the factors that strengthened this trend.
The “enemy” first identified was the Trade Unions, led by the Marxist parties, who were associated with the General Strike of 1947. The Marxists were also seen as agents of the Communist Bloc, already identified as the major external threat. The “Hartal” of 1953, which was also led by the Marxist parties, was the first time that the new Military was called upon to act under emergency regulations. Maj. Gen. Anton Mutukumara has said:
“During this deployment various innovations were necessary to control violence since the application of Section 95 of the Criminal Procedure Code could not be resorted to because of the widespread nature of operations and the non availability of Magistrates at required places whenever situations arose”.
The newly formed military, faced with a situation where the normal law and order systems could not operate, acted satisfactorily from an operational point of view, but without a sufficient a proper appreciation of the normal laws. This is borne out by the incident quoted in “Fifty Years On” where an Army sergeant was challenged that he was acting against the law. He replied: “You are mistaken. I am the law”. (Arguments for and against his statement can, however, be found.) Since the Military acted effectively on this occasion “Aid to Civil Power” came to be its most important operational role, even as far as the government was concerned.
After 1956, the threat to the State from Trade Union action waned. The “Canagaratne Award” of that year established a base for the negotiated resolution of Union problems, and the emergence of Collective Agreements between employers and employees strengthened this position. However, a new threat emerged with the riots that followed the Official Languages Act. The threat to civil society that emerged was a new “enemy” – unorganized groups of persons moved by extreme adherence to racial, ethnic and political beliefs who attacked other groups of persons not in a position to defend themselves. Unlike the unionists who had acted under centralized direction, these groups had neither leadership nor a basis for negotiation. The government and the Military had therefore to suppress the disturbances on the one hand and provide relief the adversely affected on the other. Military organization and discipline proved invaluable from this point onwards. From then, till the 1980s, this element in the social fabric continued to create disturbances of the peace at almost regular intervals.
The late 1960s saw the emergence of the “enemies of the third kind”. These were, in short, those organizations who openly waged war against the duly-elected governments, to seize power by force. The first major organization was the “Janata Vimukti Peramuna” (JVP) which launched the insurgency of 1971. It is notable that, during this insurgency, the Tamil areas of the country remained as oases of peace.
Expansion of non-military duties
The trend of using the Military to deal with domestic disturbances, when the normal civil systems did not respond to the satisfaction of the government, continued throughout the 1950s, 1960s and 1970s. Commencing in 1958, military Coordinating Officers were appointed to areas that experienced a breakdown of civil authority. The officers, who in such circumstances superseded Government Agents of Provinces, were required to re-enforce the writ of government and provide an “umbrella of protection” under which civil administration could function. In 1962, after the first attempted “coup”, the three Acts were amended to include a clause whereby the President could, by Order, call “upon any officer of the (Army / Navy / Air Force) to perform civilian administrative duties”. In 1971 many areas were placed under the control of military “Coordinating Officers”. This system satisfied neither the normal peacekeeping institutions nor the Military. On the one hand the civilian administrators and the Police came to depend unduly on military support. On another, the Military began to experience the use of such power more often than was good for a Military in a Democracy. It has already been stressed, in an earlier chapter, that civilian control of the military apparatus is essential in a Democracy. History shows that shifting power in favour of the Military leads to a breakdown of Democracy. Regular over-use of the Military in civilian conflicts is also known to lead to overreaction by the Military.
Speaking of 1958, Maj. Gen. Mutukumara said:
“The situation was unquestionably difficult because of the violence the soldiers experienced, involving the use of much more than the ‘minimum force’ adopted in ‘Aid to Civil Power’”.
Nevertheless, the use of the Military to meet civilian conflicts continued to rise till the 1980s. Since the northern conflict began a matter coming under normal Police duties and functions, the Military was extensively deployed to aid “Civil power” (i.e. the Police). Ultimately, “the tail wagged the dog”: the Police proved ineffective and the Military became the main player.
The over-use of the Military by the central government had the effect of weakening the civilian administration. Combined with other developments (described elsewhere) civilian administrators faced a loss of power not only to the Military but also to elected representatives of the people, the politicians. Just as, in a democratic state, too much power should not be devolved on the military, politicians should not usurp the functions of administrators. Should that happen, the system of checks and balances implicit in a democratic system would be disrupted. Thus, in Sri Lanka, (1) the over-empowerment of the Military and (2) the weakening of civilian administration led to an over-concentration of executive power in the hands of the politicians. The executive powers of the government began to grow to unprecedented levels. When this empowered Executive also had total control of the Military, a stage was reached when – in a less stable country – Democracy could have broken down into military rule. It is a tribute to Sri Lanka’s Military that, while it may have permitted human rights violations to take place, it did not show any appetite for military rule. Sri Lanka and India, in this way, are “model” States, as far as the Military’s willingness to accept its democratic role is concerned.
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SUMMARY
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3.3. Government , the Military, and the Public Service
Governments and the Military
We have already dealt with the factors that led to the Military focusing exclusively on internal threats. This over-focusing, added to a lack of any perceived external military threat, led to the Military gearing itself for a purely I.S. role. There was a short period, starting with 1956, when opinion prevailed that the Defence Agreement should be abrogated, the British bases should be closed down and the Ceylon Armed Forces should accept its role as guardians of its own borders. The best examples of the execution of this policy are the abrogation of the Defence Agreements, the take-over of the bases and the purchase of sea-going ships for the Navy. But this was a short-lived period which did not last beyond 1961. In effect, therefore, the Military continued to be an institution that protected the elected government from elements of the civilian population.
From the very beginning, politicians recognized the need for a Military, but continued to be wary of it, perhaps because armies had always been instruments of repression in colonial times. The fear was that the Military could become too powerful. The official Army history,“Fifty years On”, quotes Colin de Silva (a wartime Army officer who, upon demobilization, had been absorbed into the Civil Service) on an incident concerning the first Prime Minister, D.S.Senanakyake. En route to Britain with the newly appointed Defence Secretary and Assistant Secretary (Mr. de Silva) as guests of President Neguib of Egypt (who had come to power through a military coup), the Prime Minister commented:
“A group of young officers were behind the coup……They required a man of General Neguib’s stature to front for them…They will quietly retire him and take over….Actually as a matter of fact, this coup is a lesson we must ourselves learn…..We must never give too much power to our armed forces or become dependent on them….” (Emphasis added)
However, the governments that came to power in 1956, and later, had reservations even about the Military that Senanayake had created. The government of 1956 represented the social classes that felt threatened by a “westernized”, “Christianized” and English-educated urban middle class which held positions of power. There was also the perception that, in the period prior to1956, the “minority” groups wielded disproportional influence and power as a result of Article 29(1) of the 1947 Constitution. The new governments, as one of the corrective moves, had hoped to change the nature of the Military into something more representative of the social/religious/ethnic structure of the population, and to expand it to meet its new role as guardians against external threat. The building up of the strength of the Military had been proceeding at a slow but steady pace since 1949 but the new thinking called for quick expansion. Not only were numbers increased but changes were also made to the officer cadre. Direct-entry officers were inducted, some from the Universities, who were commissioned in higher ranks without the lengthy military training so far considered desirable. Subjects like Ceylon History, Geography and Current Affairs were made mandatory for higher rank. These steps represented “new blood” and “new thinking”. Almost as a consequence, this led to a “split” between these new officers on the one side and, on the other, both the young officers professionally trained in Britain and the older officers of the World War era.
Mistrust and its consequences:1.Tthe military backlash
This division within the Military weakened it considerably. The new entrants – both officers and other ranks – were suspected by the others as representatives of a “new order” which they viewed as unprofessional. The new political leaders also viewed the old entrants with suspicion, as reactionaries. While the suspicions on the part of both may not have been founded, political developments in the country ( i.e. the “Sinhala Only” Bill, the enforced abandonment of the Banadaranaike-Chelvanayagam [B-C] Pact, the nationalization of schools etc.) caused an unfortunate situation to arise out of this mutual suspicion. This was the attempted coup d’etat of 1961 (Source :”Fifty Years On”)..
“…a powerful minister at the time was reported to have made a statement that Ceylon required ‘ a little bit of totalitarianism’. This statement was widely publicized giving effect to a rumour that he was going to stage a coup d’etat with the backing of the armed forces”
The same source continues: “A group of senior Army, Navy and Police Officers in the meantime had planned to stage a coup themselves, ostensibly to pre-empt any such move by the Minister, if ever there was such a plan. The Air Force which had a British Commander at the time was not involved in any way…..The Government moved swiftly, identified those involved and took immediate measures to arrest….twenty nine persons including fourteen army officers…”
The persons arrested were tried in a Court specially created for the purpose and many were found guilty. However, due to the Court being found to be improperly constituted, the Privy Council – then the highest Court - upheld the appeal.
Mistrust and its consequences: 2. The containment of the Military
Although the majority of servicemen did not take part or sympathize with the plotters, the incident made the politicians even more suspicious of the Military. The Navy had, shortly prior to this incident had, against the law, smuggled liquor and attempted to hide the evidence. Its Commander was under interdiction, pending inquiry, when he was found to have been involved in the attempted coup. As far as the Navy went, it had therefore to undergo special setbacks. The major ones were the freezing of recruitment for a large number of years and the swift de-commissioning of its “blue-water” fleet. This enforced the abandonment of a time-honoured naval role and effectively confined the Navy to barracks. For ten years after this it continued to function with neither an effective sea-going capability nor the ability to counter any external threat. The government reaction was excessive and not in the long-term national interest, leading to the emasculation of the Navy. Hence, in 1971, the ineffectiveness of the Navy on the sea forced Sri Lanka to the ridiculous position of requesting the Indian and Pakistan navies to provide surveillance against a perceived sea-borne threat. Thus the repercussions of the 1961 coup attempt, and its consequences continued to affect the Nation for years after the events.
Mistrust in the Military by both the politicians and civilian administrators also took the form of widening the rift between the Public Service and the Military. An example was the attempt to bring the military system within the civilian system of administration. Perhaps the best example of this was the Gratiaen Pay Commission recommendations of the early 1960s. Till then, the pay structure of military personnel was quite different to that of the public service. Salaries were rated on a daily basis, paid on a fortnightly basis. Servicemen were paid allowances such as “Hard-lying”, “Batman’s” etc. and entitled to “Disability pensions” upon early discharge on medical grounds. These were all totally outside standard public service systems. The Pay Commission changed all that. While the reforms benefited servicemen by increasing their earnings and their pensions and by opening the door for a Widows and Orphan’s Pension Fund, it did away with most of the “traditional” pay structure, making the Military conform to the standard public service allowances such as “Cost of Living” (CLA) and “Special Living”(SLA) allowances. The underlying idea was that the wartime Military was totally different from the peacetime Military; the Military in this country was committed to a peacetime role; therefore it should be accommodated within normal administrative systems. This was, and yet remains, an untenable position. The total effect was to make the Military merely another government department, not different from any other: in other words, to “freeze” the Military in a peacetime role. The Military was, thus, made “civilian”, the very antithesis of “military”, and this was seen as bringing it under the control of civilian administrators. Whatever the intentions of the reforms may have been, the moves failed, as soon as the Military became a fighting force. Many of the “special”, or “traditional” allowances were not only restored to the services but the allowances previously paid to one service only were even extended to others. What was seen by the Military as an attempt to “civilianize” them merely further divided the military and civilian administrators.
Parallel to these developments were the moves that had the effect of weakening civil administration and the Public Administration. Without going into details it is possible to note that, the civil administration it self was weakened as the power of the central government was strengthened. On the one hand the Ceylon Civil Service (CCS) was replaced and a much wider-based Ceylon Administrative Service (CAS) introduced. Village level administration, which had been based upon traditional hereditary Ratemattayas, Disawes and Village Headmen, was replaced by appointed Grama Sevakas selected on a competitive basis. These moves had begun in the 1930s to democratize the system. However, from the 1960s, these moves took a different turn and centralized power in the central government instead of strengthening the administrative service. Public servants became increasingly dependant on the goodwill of political leaders for personal advancement. Failure to bow down to political dictates could mean relegation to the “Pool” of public servants not given any appointments or assignments. The independent Public Services Commission was brought under political control. Large sections of government activity was vested in statutory bodies free from the government fiscal and other controls, but liable to political manipulation. The day of political patronage dawned.
Mistrust and its consequences: 3. Restrictions on training
In the effort to make the Military more representative of Sri Lanka and Sri Lankan values, all training of military personnel, whether Officers or other ranks, was undertaken within the country. This certainly was a positive step, the value of which cannot be questioned. Military training facilities, institutions and skills developed and the training received by new entrants reached new standards. However, along with this, there emerged a reluctance to expose young officers to foreign training, which was restricted to regional (Indian, Pakistani) training. This had the effect of narrowing the vision of young officers, and making them insular in outlook. Consequently they lost the opportunity of absorbing international professional standards, knowledge and experience till later in their careers. Perhaps the biggest loss suffered was the denial of access to knowledge and awareness of Human Rights and Humanitarian Law in an international context. However realization subsequently dawned of the value of interaction with fellow professionals elsewhere, and decisions were taken to increase the incidence of such contact, by providing greatly increased numbers of courses in different parts of the world. This change resulted from the experiences of 1971, which exposed the weaknesses of the Military under threat and provided them an opportunity to work alongside foreign military personnel for the first time. When the time came to involve military officers in negotiations with the forces that were fighting the government, this exposure came in very useful.
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SUMMARY
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From Dominion to Republic
During the decade of the 1970s, however, a very significant development took place in the Constitution of this country, insofar as human rights are concerned. This was the recognition of, at least some part, of the Bill of Rights in the Constitution. By “Bill of Rights” is meant the major international instruments that were in force and accepted by us in 1970. By this time we had gained membership in the UN.
In 1972 we changed our status, or standing, from a nation having Dominion status within the British Commonwealth to a Republic voluntarily retaining membership in the Commonwealth. This did not mean that our freedom to govern ourselves increased in any way. Even as a Dominion we had been completely free to govern ourselves. We had taken decisions on international affairs that were quite contrary to the British stand. The sale of rubber to China when no one else was willing to do so was one example; another was our decision to permit Pakistan naval ships to re-fuel in Colombo during a conflict between West and East Pakistan, much against the wishes of India; we had refused refueling facilities to Dutch ships proceeding to Indonesia to suppress a nationalist uprising. In domestic matters, we had asked the Queen to replace her representative (Governor General) as he was implicated in politics; we had done away with appeals to the Privy Council in legal matters when we deciding on a Republican form of government, we did not seek authority from Britain. The major change that was effected in 1972 was that we did away with a Monarch. After King Sri Wickrama Rajasingha was deposed, the Sovereign of England succeeded to the Kandyan throne under the Kandyan Convention, signed between the Kandyan nobility and Britain. Hence, till we became a Republic, the present queen of Britain was called “Elizabeth II of Great Britain and I of Ceylon.” By becoming a Republic, we ended the unbroken succession of Sri Lankan Kings from the time of Vijaya. After 1972, power (sovereignty) was vested, not in the Crown but in the People.
Sovereignty and Fundamental Rights
Under the new republican Constitution, the Human Rights of the people of Sri Lanka were recognized as fundamental Rights. These were spelt out under Chapter VI “Fundamental Rights and Freedoms”. It was a great advance on the earlier constitution, the Soulbury Constitution of 1947, where there was only one specific section, Article 29(1) which was aimed at protecting the rights of minorities. This does not mean that Sri Lanka, or Ceylon, had ignored human rights before 1972: many of those rights, the most important ones, were protected under common law. What happened in 1972 was that it was recognized
(1) that sovereignty lay with the people, and
(2) that the people possessed fundamental rights and freedoms.
With such a major step taken, particularly in the shadow of the violence following an attempt to use force to upset the government, it is unfortunate that the intentions behind the change could not be fully realized. This was because the Constitution failed to lay down a specific mechanism by which the fundamental rights could be enforced. This essential step had to await another day. On one occasion, alone, a petitioner claimed that his “Right of Assembly” had been violated by the State.(Ariyapala Gunaratne Vs Peoples Bank. SLR Vol.1, 1986, page 338) The matter had to progress up the Courts for fourteen years before the Supreme Court held that Fundamental Rights were justiciable. By this time, however, a new Constitution and a simpler mechanism of seeking redress was in place
The 1972 Constitution was comprehensively amended in 1978 and this clearly laid down the process through which a citizen, who felt that his fundamental rights had been violated, could seek redress. This is Chapter 3 of the present Constitution. While there is a school of thought that the rights protected under it are not broad enough, this chapter provided a very firm foundation. While it is in many ways an advance on the earlier Chapter, it was retrograde in one important way. In the 1972 Chapter, the “Fundamental Right to Life” was recognized, but this was omitted in the 1978 Chapter. After about twenty-two years, however, the Courts have ruled that this right is implicit in other articles of the Chapter and that this right is, in fact, protected by the Constitution. ..... In the words of the Court, “Article 13(4), by necessary implication, recognizes that a person has a right to life – at least in the sense of mere existence, as distinct from the quality of life – which he can be deprived of only under a Court order”. Interestingly, the case concerned an Army deserter who was allegedly tortured to death by some Police officers and was filed by the dependants of the deceased.
Concentration of executive power
Along with this change in the Constitution in 1978 there was another major change: the establishment of an Executive Presidency. This development led to the concentration of administrative and military control in the hands of the President, although the Constitution as a whole provides for certain checks and balances.As has been shown above, gradual concentration of power in the hands of the Executive had been taking place over the years, at the expense of the Public Service and the Military. Concentration of administrative and military power was now achieved through the control that the President has as head of the Public Service and as Commander-in-Chief of the Armed Services. Such concentration, in the light of experience the world over, leads to weakening of the structure of government agencies. It cannot, therefore, be viewed as a desirable development. For many years since 1978, all major political parties have recognized the need to change this system but, so far, a formula that satisfies all parties has not yet been found.
Events overtake Rights
The concentration of power in the hands of the Executive and the introduction of a mechanism of enforcing fundamental rights entered the Constitution together. Not long after, the simmering conflicts in the political sphere burst into flame. The need to combat this caught the Military, and the political leadership, unawares and their pre-conditioned response was not to follow the new ideas in Chapter 3 of the Constitution, but to follow the old systems that had hitherto been used in times of civil conflict: the Prevention of Terrorism Act (PTA) and the Emergency Regulations brought into force from time to time. It is unfortunate that the forward thinking in Chapter 3, and the even more idealistic thinking in Chapter 6 (which, however, cannot be tested in Courts) did not have time to be understood and experienced by Public Service, the Military and the people and become part of their way of thinking and acting. Only the concentration of power in the hands of the Executive was taken note of and discussed. When the 1980s dawned, therefore, we were all still thinking in a colonial way and the tools we used to combat the new threat were colonial tools.
And so the stage was set to begin:
All the good work done by Chapter 3 was set at naught. The country was faced with a crisis situation.
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SUMMARY
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CRISIS
The crisis that occurred was not a military one, but a national one. It can best be described as a near-total breakdown of law and order. Why did this occur? With the insights offered in this chapter, it is possible to identify the causes.
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Military Developments Unprepared/untrained for major civil conflict frozen in a peacetime role Mistrusted by civil government Used to employing excessive force Rapid expansion Inadequate training |
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Political Developments Over-centralization of administrative and military power. Politicization of all aspects on administration Confining the Military to internal conflicts but not professionally training it. Over-using the Military in civilian administration. Not developing the Police for dealing with internal conflicts. |
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C R I S I S |
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Anti-government movements Racial and religious conflicts divide the nation Democratic Tamil political parties lose credibility and influence Rise of Tamil Separatist movement Loss of credibility in traditional Marxist parties Rise of neo-Marxist extremism |
PART 2
PREVENTING HUMAN RIGHTS VIOLATIONS:
THE ROLE OF MILITARY DISCIPLINE
4. Discipline – preventive and cure
The nature of the problem and the history of the problem have been dealt with in Part 1. It is now possible, therefore, to look at the remedy: the remedy for what has to be dealt with is the remedy for what went wrong with the Military.
If a Fundamental Right is violated, there should be a way to remedy this. In the case of human rights violations by the Military, the remedy already exists within the Military. This is the proper enforcement of the military disciplinary systems.
Let us take the example of illnesses and medicine. There are medicines that prevent illness and medicines that cure illness. Medicine that cure are necessary only when the medicine that prevents has failed. In the case of any epidemic (say, dengue or malaria), we have to begin at the beginning: keep our homes clean, using the same knowledge of hygiene that we all have. This is true of human rights violations by the Military, true. Discipline must be used, first, to prevent violations from occurring. In case it has fails to do so, it can also be used as a cure. If we use our knowledge of Discipline to keep our Service “clean”, then the “infection” of violations will not creep in.
Even if it does, Discipline can be used as a cure.
If we do not use Discipline either as a preventive or a cure, then we will be always ill.
The difference between a civilian and military person, it is said, is Discipline. A serviceman is a disciplined man. Yet, due to peculiar circumstances, these disciplined persons acted in an undisciplined manner under certain circumstances. Now that circumstances have changed again, it is possible to correct what went wrong. So all we have to do is to go back to basics: to go back to Discipline – preventive or curative, as necessary.
4.1 What is discipline?
All professional servicemen understand what Discipline is. Therefore it is not necessary to explain it here. However, certain aspects need to be reconsidered. For example, Discipline is not something that is found only in the Military. It is found in all professions, in schools, in religions and in homes. Even among animals, there is the discipline of the herd – the animals in the herd follow a code of behaviour, and the one who breaks is hounded out and becomes a “rogue”.
But, while discipline among animals is enforced by force, human discipline used Man’s superior understanding and power of communication as the enforcement mechanism. It is not very different even in a military context.
Origins and purpose of military discipline
Because the Sri Lankan Armed Forces were built upon the British pattern let us look at British military history to appreciate how discipline became one of the prime characteristics of an armed force.
In the days when communication was very slow, Kings could not exercise direct rule over the entire kingdom. Therefore administration had to be decentralized. The kingdom was divided into parts and these were administered, on behalf of the king, by members of the landed aristocracy; the Barons, who were the “Lords” of the House of Lords. Each Baron was responsible to govern the lands entrusted to him, to look after the ordinary folk (“commoners”) who lived there, see to it that the lands were cultivated and to collect taxes for the king. Each Baron lived in a fortified castle in the highest point in the settlement. In times of civil war, the villagers took refuge in the castle. Sometimes, however, the King had to go to war and he required an army. He did not maintain a standing army (as mentioned earlier in Part 1 of this chapter) as he had no funds to maintain a standing army. Armies were for emergencies only and would be raised for the duration of the war. So when the King needed an army, he collected one. He called upon the Barons to provide him with troops. This was one way in which they paid him taxes. The Barons, then, gathered around him along with their troops. Their troops the common villagers on his estate. They had neither training nor equipment. The only persons with any training in combat or arts of warfare were the Barons and their families, who were dressed in armour and mounted on horseback. All others were ordinary villagers armed with any weapon or agricultural implement they could find – pitchforks, axes, spikes etc. The actual fighting was hand-to-hand. The mounted troops in armour led the charge, the foot soldiers followed their Baron’s flag and the archers – who were the hunters with their own specialized weapon, the bow – let fly a rain of arrows from the rear. The same organization, with a few minor differences, existed in early Sri Lanka, too.
However, when gunpowder and cannon came into use, this disorganized system was insufficient. An Army could be attacked with gunfire long before the foot soldiers and cavalry could reach the enemy. On the other hand, the use of artillery and muskets required men to act as one body, rather than as many individuals, and to follow orders without delay. This requirement ultimately led to the need and establishment of professionally trained armies.
It also led to the introduction of Drill, the purpose of which is to train a body of men to act together very quickly. Strict Discipline became the means of achieving this. To exercise Discipline there was to Command. (In civilian life this would be called “Management”) The colloquial term “square bashing” describes how, through training, a leader makes a group of individuals into a single collective unit.
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Leadership/Command
At sea, a similar sequence of events unfolded. A sailing ship with several masts was, in olden days, the most complex machine. The crew had to be drilled to carry out complex orders when rapid decisions were required by changes in the wind. That was for sailing the ship. However, with the introduction of shipboard artillery, there emerged the concept of “fighting the ship”, or of using the ship as a fighting unit as different from merely moving it from one place to another. Hence, in addition to the ship’s crew, who “sailed” the ship, now there were marines and gunners who “fought” the ship. These two sets of people were both drilled in their respective functions and, in battle, functioned under the unified command of the ship’s captain.
Discipline is, therefore, the means by which a disorganized crowd can be moulded into an organized force. Disciplinary systems are designed for this. Hence it is the means by which any form of individual action by soldiers, which upsets good order and discipline and harms the good name of the Force, can be dealt with. It is, obviously, better for the Armed Services to use their disciplinary powers, in both the preventive and curative senses, than to leave the door open for the public to accuse the Service of indiscipline.
Discipline today
In a democratic state, the Military must always be respected by, and have the backing of the People. If it does not, it loses its credibility, it will be looked upon as an instrument of repression. What happened to the Military in the 1980s was that the accusations began to be leveled at the Military, both nationally and internationally. People from both the North and South accused the Military of violations. The Military was viewed, by non-combatants of both North and South as an instrument of repression. The Military, of course had to deal with enemies of the State. This was accepted. What the Military was accused of was that it failed to confine its attacks to combatants only, and to act within the Law. The excuse of that it was difficult to differentiate between combatants and non-combatants was no excuse. It merely showed that the Military could not single-out its own enemies, that its Intelligence was poor. In the face of its inability to identify and target the enemy, the net was spread wide and something like the colonial “scorched earth”. It was by following this strategy, that the British Military destroyed villagers and crops when they could not find Puran Appu’s forces. In the 1980s, the same strategy was used by the Military. The victims of this strategy were the non-combatant people of the country, the Rule of Law, the good name of the Military and the credibility of government. It was not enough to deny the allegations or to show that the accusations were not all accurate. Something was radically wrong.
Finally, citizens became aware of their rights and began to resort to accusations of Fundamental Rights violations by the Military. Even servicemen became aware of their Fundamental Rights and Court, often against violations committed by other members of the military. The vast majority of accusations made by citizens, however, concerned the undisciplined conduct of the Military. It is necessary, at this point, to go back to the Introduction to Part 1 of this Chapter, “Human Rights Education and the Military”, and see how the Military took steps to control the situation. In the latest Reports on human rights violations, there are no new allegations made about the Military. Today the lesson has been learnt that the WILL to re-establish the Rule of Discipline within the Military must go hand-in-hand with the WILL to understand and observe human rights. Education in human rights embodied in the basic training of servicemen and strict disciplinary control thereafter are, therefore, the two-pronged course of action that can re-establish the good name of the Armed Services.
4.2. Discipline and the Law.
Let us look how the Law looks at the question of Discipline.
Under Chapter 3 of the Constitution certain Fundamental Rights of servicemen have been curtailed. These are rights that it is not possible to grant to those who are the guardians of law and order.
15(8) The exercise and operation of the fundamental rights declared and recognized by Articles 12(1), 13 and 14 shall, in their application to members of the Armed Forces, Police Force and other Forces charged with the maintenance of public order, be charged with such restrictions as may be prescribed by law in the interests of the proper discharge of their duties and the maintenance of discipline among them.
What this means is that
In other words, to ensure that servicemen will be disciplined and do their work correctly.
However, any restrictions placed must be done according to law, not according to the will of anybody.
What is the law that controls this? They are the Army, Navy and Air Force Acts.
In these Acts, provision has been made for the proper discharge of duties and maintenance of discipline by Regulations made for this purpose. In each of these Acts, the Minister of Defence is given specific powers to make Regulations to maintain discipline. For instance, in the Air Force Act, Article155 (1) says that “…the Minister may make regulations in respect of all or any of the following matters… (c) the discipline of the members of the Air Force” There are similar powers in all the Acts.
Therefore:
(a) Discipline in the Military is a requirement under the Constitution
(b) Servicemen’s Fundamental Rights have been curtailed because of the need to maintain discipline
(c) the Constitution and the Army, Navy and Air Force Acts are the instruments of maintaining discipline
A disciplined force has also to act according to the greater good of that force. The phrase “good order and discipline”, is familiar to all servicemen. It very clearly spells out that these two things are but two sides of the same coin: good order within the Force cannot be maintained without the proper exercise of discipline. Good Order is meant to be maintained by the proper exercise of the powers given under the Army, Navy and Air Force Acts. It is recommended that these Articles be re-studied by all servicemen.
Commonest Human Rights violations: Torture
Let us take the subject of Human Rights violations. In an earlier chapter we have seen that the commonest violations are Torture (Cruel, Inhuman and Degrading treatment) and Improper confinement. All these Acts make specific reference to these. They were not introduced recently, after the Fundamental Rights chapter was brought into the Constitution. These were included in the Army, Navy and Air Force Acts over 50 years ago – long before the Torture Act.
The Army and Air Force Acts include the following Articles, both having the same numbers:
107. Scandalous conduct of officer
Every officer who, being a person subject to this Act, behaves in a scandalous manner, unbecoming the character of an officer and a gentleman, shall be guilty of a military offence and shall, on conviction by a court martial, be cashiered.
109. Disgraceful conduct
Every person subject to this Act who –
(e) commits …any act of a cruel, indecent and unnatural kind
shall be guilty of a military offence and shall, upon conviction by a court martial, be liable to suffer simple or rigorous imprisonment for a term not exceeding three years….
Under these sections it is clear that there is both a legal and moral need for servicemen to refrain from cruel acts. It is strange that they do not appear in the Navy Act. The Navy Act, Section 90 refers to “cruelty and scandalous conduct” but only with reference to officers. It is necessary to bring this Act into line with the other two Acts.
Again, the Army and Air Force Acts go further. They say:
126. Every officer, warrant officer or non-commissioned officer who -
(a) strikes or ill-treats any soldier / airman….
shall be guilty of an military / air-force offence and shall, on conviction by a court martial, be liable, if he is an officer, to be cashiered……and, if he is a warrant officer or non-commissioned officer to suffer simple or rigorous imprisonment for a term not exceeding three years….
These are Articles that are specifically aimed at preventing cruel, inhuman and degrading acts. In terms of these Acts, any serviceman who commits such an action can be tried and punished under service law. If those who violated these articles were dealt with, openly, under military law, the people of the country would see that Military law was strong and fair. The number of cases which reached the Supreme Court and the number of queries that were raised nationally and internationally show that the law was not enforced. It shows that the services did not respect their own laws; that those charged with maintaining law and order did not respect their own laws. Without the laws being respected, Discipline cannot be maintained. And so, the Sri Lankan Military earned the reputation of being an undisciplined force. The first requirement of an Army was violated.
Commonest Human Rights violations: Wrongful confinement
Let us further examine the Army, Navy and Air Force Acts. The second most common accusation against the Military is about wrongful confinement. Even before the days of the PTA and the Emergency Regulations, the Military was permitted, in the interests of Discipline, to keep certain persons – mostly servicemen – under confinement. When under detention in a military detention camp a serviceman is treated more harshly. That is why there are specific Articles and Regulations that say what can, and what cannot be done in detention camps.
In all three Acts there are references to the need for confinement to be carried out within lawful limits. For example, Article 109(e) of the Army Act speaks of “Irregular arrest and confinement”, where the 24-hour rule for confinement prior to trial is mentioned. Similarly, in the Navy Act, Article78 refers to “unnecessarily detains a person in arrest and confinement without bringing him to trial or….the proper authority for investigation.” Once again, in the Army and Air Force Acts, there is this Proviso to the Article on “establishment and regulation of military prisons and detention barracks”which says:
Provided that nothing in this subsection or any regulations made thereunder shall authorize flogging or other corporal punishment to be inflicted for any offence.
In passing it may be noted that it is ironic that what the Services do not permit to be done to its prisoners, the teachers in our schools consider corporal punishment a teacher’s “right”, and servicemen are often only too willing to subject their children to such punishment.
The important lessons from the above sections are that:
If these important principles had been followed strictly, it is difficult to believe that charges of wrongful confinement could be brought against military personnel.
Less common Human Rights violations: Murder, Rape.
The number of accusations on murder and rape that have come up before the Courts is less, but important. There is little to comment on how unacceptable such acts are under any circumstances but, historically, servicemen have been seen to have committed both in times of war or civil conflict. It is for this reason that all three Acts provide for very strong punishments with regard to them. Article 131 of the Army and Air Force Acts and Article 118 of the Navy Act provides for the death sentence in the case of murder and for twenty years imprisonment in the case of rape.
Over the years it has been agreed on with the civil courts that, although the Military have these powers, such cases will be referred for action to the civil courts. Nevertheless it must be noted that, should it be necessary, provision is available to try offenders for these crimes under the Army, Navy and Air Force Acts.
Common violations of discipline that do not reach civilian courts.
These examples show how the Military has provided means of preventing the commonest forms of Human, or Fundamental Rights violations. Consider how much Court work would have been avoided if all these cases mentioned in the earlier lecture had been attended to under the Army Act. Consider also how the Army’s good name would have been protected.
Although the Military have, on very many occasions, discredited the government and itself in many ways, these are not to be seen in Court records. However, Police records would show quite a few instances. What are these? They are all familiar to servicemen, as these examples show:
This list can be extended without end. What do they indicate? They show that:
The end result is that the Military acts like an invading army and treats civilians like inferior beings.
How can this be stopped? Good Order and Discipline can only be established by good leadership. Only good leaders can make good followers. Everyone is not born a good leader, but the military training is aimed at creating good leaders. Selection for leadership, proper training and giving of responsibility to others are aspects of leadership. Over the last twenty years the Military have seen exceptional leaders and those who failed as leaders. The lessons do not have to be repeated
The persons who made the Service Acts made the provisions for disciplined services but we have seen how circumstances made service discipline break down. We also know that violations are on the wane now. All that has to be done is to go back to the principles spelt out by those who formed the three Services.
SUMMARY
violations, particularly in regard to Torture and Wrongful confinement.
CONCLUSION
q Education in human rights embodied in the basic training of servicemen,
q Strict disciplinary control thereafter, and
q The proper exercise of leadership
CATCHING THE BIG FISH
(Words spoken at the launch of the CSHR book on the Doctrine of Command Responsibility)
Today, the Centre for the Study of Human Rights, launches a book on a subject of particular interest, both to our country and to our world. It is titled "Catching the big fish" and carries the sub-title "The need for the introduction of the Doctrine of Command Responsibility in Sri Lankan Legislation". The situation in Sri Lanka is the specific area dealt with, but the collapse of command responsibility goes far beyond our shores – one has only to look at the tragic farce being played out in Iraq to understand. The book is written to motivate "movers and shakers" among legislators of today to set things right, and I hope that least some of them are present here today, will buy and read it.
This book follows a ten-year programme conducted by CSHR to make our Armed Services aware of human rights, and how and why they should respect them. No one welcomed us with open arms in the 1990s. Over the years, however, the Services came to understand our motives, and we both learnt a lot from each other. Ultimately we trained trainers from within the services and produced a Manual for them. Most importantly, the Army established a Human Rights Directorate, and the others have followed. We, in turn, came to understand that the blame for of human rights violations could not be attributed to the poor foot soldier who, himself, is the victim of a flawed system. The violation and the violator, both, were merely the outcome of poor recruitment, poor training, and poor leadership. The blame squarely rests on the high, the higher and the highest levels of command. This book flows from that understanding. But, happily, it goes beyond that, because it seeks to provide an answer.
It focuses on areas of crimes committed; on the one hand by criminal organizations within their own criminal frameworks and, on the other hand, by states within the framework of governments, that is, by armies, police bodies, bureaucracies etc. This is an interesting collection of institutions. Everyone is ready to find fault with criminal organizations, with the Armed Services and the Police, but not with the bureaucracy and the State itself. To name them fearlessly is, indeed, a bold step, and CSHR deserves more than a word of praise for this.
This misuse of petty power, this disregard of responsibility – these are state crimes, committed within the framework of government. But there is no word of criticism spoken. Why do these happen? Who can put it right? President Truman of the USA had a one-dollar note framed and hung in his office, with the words: "The buck stops here". When will we see command responsibility acknowledged and articulated so clearly, again either in Sri Lanka or in the USA?
When, a few years after retiring from the Navy, I was invited to join the Board of Directors of my firm, my Chairman's words of welcome were: "I don't know whether to congratulate you or to feel sorry for you." To explain this he related the story of an earlier Chairman who, because he recognized that he was answerable for the poor performance of the firm, tabled his resignation, with the words: "Gentlemen, the chop must come from the top". These words embody the acknowledgement of Command Responsibility. "The loneliness of Command" is how we called it in the Navy.
But my examples are from in the commercial sector. How many such examples from the state sector can be found after 1948?
The Army, Navy and Air Force Acts, and the Police Ordnance are dealt with in this book, but the CSHR seems to have been denied access to the Regulations under these Acts, the Internal Orders, and the Books of Reference. It is here that the concept of command and how it is to be exercised are to be found. I remember that in the Navy there were two kinds of command: 'Command' and 'Military Command'. Any officer – whether commissioned, non-commissioned or warranted (warrant officer) – exercises command over his subordinates in his own branch of specialization. But only Officers of the Executive Branch can exercise 'Military Command' over all branches in the Navy. This is because only an Executive Officer can command a ship. Even when his Engineer officer is senior to him in rank, he can overrule the Engineer Officer's advice. The problem arises when his judgement proves wrong. Then, the responsibility becomes his own – the responsibility that follows in the wake of command.
Every unit or institution is hierarchical in structure. In each, there is one who is ultimately responsible. So, when an SLTB or privately-owned bus knocks down a pedestrian, bystanders assault the driver – who is the person they perceive to have been in command. I use this example for two reasons: one, to show that the general public recognizes a concept of command responsibility and two, to ask you who, really, is to blame? That driver is the same poor foot soldier I spoke of before, himself the victim of a flawed system. Is not the problem, once again, poor recruitment, poor training and poor leadership? Who, then, bears the responsibility of Command?
In the Saddam Hussein trial, last week, "Witness A" asked the Tribunal; "Your Honour, he is the President of the country, he is the protector of the people, when the people are tortured and imprisoned, who ordered that?" A President of this country, and his Inspector General of Police ordered a large group of Policemen to surrender to the LTTE: but they were not there to hear the shooting that proclaimed their martyrdom. Who is there to find fault with public servants who willingly sell their souls to politicians, for perks of office? With politicians who usurp the powers of subordinates, for personal power? Now that the election meetings are over, can we not ask: "Meywata vagakiyanne kawuda?"
The concept of command responsibility has, now, been abandoned. It has been replaced by a culture of power without responsibility. Our moral and ethical systems have failed us. They have ceased to be relevant in our lives. The time has come, therefore, for us to embed Command Responsibility in our legal system, and for the Judiciary to uphold it fearlessly.
May this book, therefore, be one small step towards a brighter tomorrow.
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