Lalin’s Coloumn: More Blunders but by Dayan

Dayan J has made a few but crucial avoidable blunders in his article in the Island (8 Feb 2010) titled the ‘F... Affair – A perfect blunder’ which will call into question some of his assumptions and assertions and whether he too has blundered.

Dayan says that in 1962 the coup case though there were some high ranking military officers, the case was held in civil courts so why not this time too. There is little connection between the 2 cases.

The question is not whether the military officers were of high rank or not as it does not matter for Courts martial (CM) as all ranks bar none come under the Act but that there were civilians also including police officers and state officials. They could not have been tried by CM as military law applies only to those who serve under it and to no one else. Thus there was no way that all the 1962 coup suspects could be tried by Court Martial (CMs) or under military law as Dayan J states.

It should be noted that the Leader of the Opposition (LOO), in his impulsive manner that is meant to display profound learning, intellect and wisdom for the masses, has categorically stated in the print media said that there is nothing called ‘military law’. Is it that worthy’s contention then that the law applicable to the Army Act is referred to as ‘Army Act law’ and that the civil law of the land is referred to as the ‘Criminal procedure and Penal code law’?

It is possible that LOO thought we were heading for his uncle’s favourite martial law boast of the 1980s. In 1915 (Oruvil Huckhim, the dynamic non communalist has referred to it too but derogatively about a race in an interview with Indian media) the country was brought under martial law by the Colonial (British) governor. Scores of Sinhalese were shot after illegal drum head courts martial under British pukka sahib military officers. The British Indian Punjabi troops and Ceylon Planters’ Rifle Corps officers led the blood bath. Shamelessly in the post 1980s, this ‘corps’ was ‘revived’ as the SL Planter’s Rifle Corps.

It also adopted the former’s regimental colors; green, black and gold. Ironically President JRJ absolutely frustrated by the progress of the army under his nephew Weeratunge in the 1980s too threatened to declare martial law in the last resort to overcome the LTTE as though that was a war winning strategy! Surely LOO must have referred to ‘martial law’ when he said that there is no such thing as military law. If so he would have been correct. Any one who declares martial law commits an offence under the laws of SL so what was LOO thinking about?

The accused in the 1962 coup were certainly found guilty by the country’s judiciary but they were not ‘jailed’ for long. They appealed to the British Privy Council which we unfortunately and meekly (shades of the MOU 2001) recognized at that time despite being an independent country. They were acquitted on a point of law by that council. The controversy about the Privy Council can be seen to have come after and not before the local courts gave their decision as thought by Dayan. In the first instance Justice TS Fernando dissolved the initial coup d ‘etat court saying it was wrongly (non JSC) constituted, a decision that shocked, and amazed and was disbelievingly hailed abroad. (Wijedasa Rajapakse would have said the ‘whole world’).

This was at a time when coup plotters in former colonies especially in Africa were put before a firing squad within 24 hours of being arrested or ‘abducted’ as Wijedasa prefers. In 1988/9 those arrested for waging war against the state were fortunate just to be shot when captured.

They did not know or care about ‘white ‘or red flags. Their leader after capture was thrown alive into the Borella crematorium as alleged but deliberately forgiven by the JVP. This was not a CM (military) but a political (civil) decision as LOO must know.

Contrary to Dayan’s assertion Courts Martial are not ‘opaque’ but are absolutely transparent. Their procedures are the same as that of civil courts. The laws of evidence are strictly applicable. While there is access to the civil and even the supreme courts on a point of correct procedure and law, the verdict cannot be changed.

Unlike civil judges who live far removed from the protagonists and are even discouraged/ barred from communicating with them, military offices after giving their verdicts have to live and work for the rest of their careers in camps / bases associating with all concerned. They just cannot ever afford to lose the respect of colleagues and comrades in arms by making wrong/biased decisions and expect to lead them in battle/operations or in camp. They will go all out to prevent a miscarriage of justice.

The members of the courts martial are trained in law albeit restricted to military law from the date of joining as officer cadets. A lot of their training and experience concerns the Geneva Conventions, humanitarian and human rights law and the rules of combat. They do military law exams not only in the Military Academy as they start their careers but thereafter to pass their promotion exams from Lieutenant to Captain and Captain to Major. They receive training by being given opportunities to be members under instruction initially at several courts martial before becoming members of the court. They in addition would also have conducted many judicial inquiries under the same law in several Courts of Inquiry and Summaries of Evidence from time to time, possibly abroad too as members of the UN forces in Haiti.

The army legal directorate under a Major General employs 38 ‘fully’ qualified lawyers who are not under the unit chain of command and act independently. They are guided by the Judge Advocate General who is also a Major General. In court they in summing up guide the members of the CM in the aspects of law that have to be met in order to come to a decision. There will be no attempt to ‘massage’ the evidence as Dayan believes. No civil court could do better. Ask Transparency International. Hopefully the many misconceptions that Dayan has of how military law is applied in the army do not exist. Surprisingly he did a good job in Geneva defending the army over violations of HR etc.

Next to operations, military law occupies pride of place in the army as it depends very much on it to maintain discipline to carry out its duties not just in camps but in battle. Officers and soldiers live greatly influenced by military law as it applies to them every minute of their lives. If not the Army would soon become a rabble like those often seen in the streets of the capital and bigger towns.

US President Obama may have ruled that 9/11 prisoners are to be tried under the laws of the USA and not its army as was done before. That has nothing to do with SL. What is shocking is that the US in the first place decided to try them by CM when none of them were subject to American military law. Thus except for habitual American tampering with justice during its wars, there was no way that civilians could be tried under military law. This example is not worth considering especially as it is about a globally despised war monger, surprisingly quoted by Dayan J.

Dayan should have no worries that treason has anything to do with exposing the truth. Making statements even in endless series every time the BBC offers a microphone does not mean ‘truth’ is being exposed, especially when hearsay which is not admissible in both civil and military courts, is the source. Has he been gullible enough to believe what the media spews? ‘War crimes’ exposures will not be the basis for ‘treason’ charges if ever they are made. Ask Gordon Weiss who is hopefully no relation to Gen Weiss of the German army’s 19th Army in France in WW2.

Courts Martial in SL is not ‘closed proceedings’ even in USA, although Dayan heavily influenced by Fidel Castro may think so. Our laws and procedures in any case have little to do with the USA or Cuba. There may be restrictions in security and space available as there are in civil courts, but there is nothing else to restrict access to CMs.

Military Courts following the laws of the land also assume ‘innocence until guilt is established’ so what bothers Dayan? SL courts follow Roman Dutch not French law.

The administration is not seeking a show down with the judiciary. When the judiciary rules on the case that will be final. However it is 300 votes Karunaratne and the motley allies that have already threatened the judiciary. They have publicly stated that they are ready to take on the Courts in case its delivers a verdict that is not favourable to them.

Whatever doubts Dayan J has about the present case let him have no doubt that Army Courts Martial can deliver a righteous judgment not in any way less so than the civil courts, whatever Obama does or Fidel has said.

- Asian Tribune -