Illusions of mass legal delusions

SN Silva LLM PC as so described who was as quiet as a mouse while the white flag, Channel 4 and other controversies like the 300,000 IDPs were raging, has now sallied forth, relentlessly pouring chapter and verse of the Army Act (AA) and miscellaneous civil covenants including Human Rights in repeated swoops in the print media and on TV and at the Hotel Galadari.

Is it because he comes “from a society of men….bred from their youth in the art of proving, by words multiplied for that purpose that black is white and white is black, according as they are paid. To this society all the rest of the peoples are slaves”? (Swift’s Gulliver’s Travels).

WMD-Rank less Army Commander

‘..of piercing wit and pregnant thought, Endued by learning and by nature taught To move assemblies (Dryden’s Absalom and Achitophel)

Silva’s mighty WMD or illusions of mass legal delusions are that once an officer is ‘appointed’ Army Commander he ceases to be an officer and is therefore no longer under the Army Act as he has only to be ‘a fit and proper person’ to be so appointed. This leaves many exciting possibilities open for those who aspire to command the SL Army on non military conditions or so one would think.

The mountain appearing before us is only a mass of rock; but, in all the vastness of its size, grass and vegetation grow upon it, birds and beasts dwell upon it, and, treasures of precious minerals are found in it. (The Wisdom of Confucius (500 BC)

However does it mean that the Army Commander loses his military rank on being appointed, something that can normally happen only if he is cashiered (dismissed with dishonor)? Will he therefore not wear uniform? What would his pay scale which is normally given by rank, be? Will he not be paid or will a new ‘Army Commander’ pay scale have to be introduced? Will he be addressed as plain ‘Mister’ and not General?

Did Silva truly not know that the ‘appointment ‘also carries an army rank which is incidentally one higher than the rank held previously by the incumbent? Why is it so if just the ‘appointment’ is sufficient to command the army i.e. without rank (in addition to placing the incumbent beyond the Army Act)?

What was his compulsion to attempt to create doubts where none existed, even to the extent of rubbishing the legality of high profile courts martial (CMs), days before they started? Did he think that the rank held by an Army Commander was not that of an officer of the Army? Could there then also be another officer in the army who is of higher rank who is not the army commander? Could that man then be under the Army Act if not the Army Commander?

Is Silva aware that when an Army officer of the rank of Captain and above be it a CDS, Army Commander or not retires, he retires from the service and not from his appointment and carries his rank if he so desires to his grave?

If Silva has any idea of military ranks even if he thinks that a ‘enlisted’ (Americanism) soldier (private, corporal, sergeant or woman) and not necessarily an officer can command the army, he must know that all SL’s army commanders always held an officer’s rank. Does he know that a rank less Army Commander does not exist anywhere in the world? One could exist however in a fevered imagination.

Other Appointments Approved by the President

Is Silva aware of the contents of the Army Officers’ Service Regulations (AOSR) (Regular Force (1988)? If so he will know that all appointments in the army of the rank of Lieutenant Colonel and above also require the approval of the President and shall be published in the Gazette. None of those promoted then lose their ranks or cease to come under the Army Act.

If they did the Army’s senior officers would all be beyond the very law that applies to the rest of the officers and soldiers and little could be done to prevent the army from becoming a rabble as there would be a total breakdown of discipline.

The military knows very well that the Army Commander like other lesser ‘commanders ‘who hold ‘appointments’ be they Corps, Division, Brigade, battalion, regiment or even section commands (corporals) remain under the AA which is a disciplinary code, despite their ‘appointments’? They all serve in the army and wear the same uniform whatever their ‘appointments’ or even their ‘designations’ are, except for differences in rank insignia, what ever the now rampant Silva opines. No wonder with such advisors one Mangala without remorse and shamelessly even thought it was the Salvation Army one particular military man commanded.

Delegation of legal powers by the Army Commander

Does Silva know that the Army Commander delegates his legal powers under the Army Act including powers of punishment to officers above Colonel? How can he do so if he is beyond the same legal powers himself?

Civil and military offences are included under the Army Act

“Mr Bumble thought the law was an ass, but it is a stubborn ass that is bound to win in the long race”

Those familiar with the AA know that it contains all offences under the civil laws of the land including robbery, theft, fraud, assault, rape and murder and also those that are specifically military offences. These are not confined to desertion and absence as may be thought by reading what appears to a calculated attempt by Silva at Pavlovian respondent /fear conditioning just before the CMs began.

Army Act specifies military offences

The AA specifies a comprehensive list of purely military offences from mutiny to those in relation to the enemy from cowardice, treachery, assisting,(by giving arms and ammunition, surrendering a position, post or garrison, giving out passwords) and insubordination and disobedience etc. In addition flouting various army, formation, unit, standing, operation, movement, administrative, regimental and garrison and other orders are also offences specific to the army. To make further sure that nothing detrimental to the proper functioning of the army can escape due correction, there is section 129 which is a catch all provision which makes it an offence to commit ‘any act prejudicial to good order and military discipline’. In this way only can the army function as an effective fighting entity, as law makers having drafted such laws, and not law breakers, must know.

No exemption in military law for the Army Commander

Can the Army Commander then be above even good order and military discipline? Can the man who commands the army be above the very Act that provides for his appointment and gives him the legal power to command? Can the Act apply only to his subordinates but not to him? Would that then be the law of the jungle and not of the army?

Is it Silva’s position that the Army Commander in harness is only answerable to civil law and civil courts and can commit acts which are purely military offences and get away with them because he is the Commander? Or is it a case of him tilting at windmills in his retirement? Has it occurred to him what a national and military calamity such interpretations would lead to, especially in relation to offences with regard to the enemy, leave aside other serious military offences? Conversely how can a man not subject to military law command others who are, unless of course he is a military dictator?

Silva’s arguments vapourised

Silva’s other voyages of discovery about the application of military law are ill navigated although fuelled by what he has thought was his WMD that the Army Commander was above such law. That argument is not just demolished but is vapourised not only by what is stated above but also by the very letter of resignation submitted in November 2009 by the Commander in question in keeping with the provisions of the AOSR (Part VI section 36) under the very Army Act Silva denies the Commander was subject to and also his attendance at the Courts Martial . Silva’s other long winded declamations are untenable and not relevant, including provisions in article 9 of the ICCPR and section 37 of the CPC (1979) and pious references to Human Rights.

Provost and citizens powers of arrest

Silva’s exposition of the rules pertaining to arrest is curiously confined to section 150 (AA) which relates only to deserters and AWOL (absentee) cases with the help of the civil police. While he is silent on the rights and obligations of any citizen by law, (CPC) and thus all military personnel, to arrest a person found committing or alleged to have committed a crime, he appears to be totally unaware that arrests can also be made by the Military Police (Provost) or by persons exercising the authority of a Provost Officer in similar circumstances anywhere in SL or elsewhere wherever the SL forces are based (e.g. Haiti).

Silva quotes section 31 (AA) on arrest and trots out the ‘quarrel, affray or disorder’ provision as limiting the circumstances when a junior officer can arrest a senior officer. It is as though all military personnel do not have the rights of citizens to make arrests too as given above and not only of military persons even when they are not on duty. They being ordinary men who can rise above ordinary behaviour will surely not idle if anyone even a senior officer is about to commit a crime or has committed one especially relating to the enemy or a serious crime such as murder, rape etc. They will also not hesitate to use legitimate force to effect arrest as provided by the laws of SL that every one, without being gratuitously lectured, is aware are sacrosanct. They will not wait until their ‘commanding officer’ orders them to as believed by Silva.

Noble sentiments

Silva expands on ‘stretches of imagination’, ‘preposterous suggestions’ and ‘arbitrary’ actions, and finally to “kindling compassionate reflection of right thinking people on an issue of humanitarian concern”. Noble sentiments especially as he is also a retired Chief Justice.

‘An Unfinished Struggle’ (Victor Ivan)

To further understand Silva’s peregrinations one should go back to Victor Ivan’s unchallenged riveting book ‘An Unfinished Struggle’. It is full of Silva’s own exploits, that ‘stretch the imagination’, include ‘preposterous’ and ‘arbitrary’ if not other assorted actions and unfortunately contains nary a word about his concerns for ‘compassionate reflection’ or ‘humanitarian concerns’. Instead it makes awkward, uneasy and frightening reading for any ‘right thinking citizen”. It includes the first and final drafts of the Impeachment motion on the Chief Justice and the report of the International Bar Association titled ’Sri Lanka Failing to Protect the Rule of Law and the Independence of the Judiciary’ (Nov 2001) when Silva was Chief Justice.

‘For the CJ it was his avocation’

Jolly Somasunderam’s 2nd super article ‘Turn Around challenge to NE Tamils’ Island (15/03/10) sums it all up. After drawing attention to Rupavahini’s exposition on Silva on a second consecutive night by popular request on TV , he states ”The General was tasked to do in the opponent’s military capability, the Chief Justice’s self appointed task was to do in the judicial institutional structure. For the General it was his vocation, for the CJ it was his avocation”.

“Justice is the constant and perpetual wish to render to every man his due”.

- Asian Tribune -