‘Let’s stand up with One Voice’

Vernon BOTEJUE-Senior Attorney-at-Law

Most certainly no allegations of war crimes or violations of human rights, can arise or be made against the independent sovereign State of Sri Lanka or her Head of State President Mahinda Rajapaksa in the eye of the supreme law of the land ‘The Constitution of the Democratic Socialist Republic of Sri Lanka’, relating to the events that took place in the course of the relentless terrorist war, wage against the government of Sri Lanka for over three decades by the LTTE.

President Mahinda Rajapaksa on assumption of office in 2005 in his swearing in speech vowed to give effect to the provisions of section 27 (3) of our constitution that enacts - “The State shall safeguard the independence, sovereignty, unity and the territorial integrity of Sri Lanka.” By affirmatively declaring, “I will defend by all means the country you entrusted to me.”

The President further publicly asserted, “My political policy from now on will be the “Rule of Law” and “Protection of Human Rights”. I will not discriminate on party, colour, racial or religious grounds. I will not allow anyone to subvert law and order using political power and privileges.”

Eradicate LTTE terrorism

It is heartening to record that the recent public statements of President Mahinda Rajapaksa confirm that in fact he did receive in full measure the unstinted co-operation and support of the people of Sri Lanka that enabled him to eradicate LTTE terrorism, the scourge that afflicted the entire country for over three decades from the shores of Sri Lanka.

It is noteworthy however that at that point of time when President Rajapaksa assumed office in 2005, “a ceasefire agreement” with the LTTE was in force, signed by Ranil Wickremesinghe then in his capacity as Prime Minister, that caused an unenviable situation to be faced by President Mahinda Rajapaksa and his government that was then obliged to honour such agreement with dire consequences. Suffice it to be mentioned that it is only too well-known to the people of Sri Lanka how they suffered bitterly, while the LTTE enjoying the fruits of safe shelter under this agreement, strengthened its military arm to strike not only on land but also sea and air combined with its continuing terrorist suicide bomb attacks causing in its wake untold harm and death of innocent people and destruction of public property.

Despite the treachery and provocative acts of the LTTE, President Mahinda Rajapaksa on his part, demonstrating to the world that he was the Head of a Democratic State exerted every effort to push forward the Ceasefire agreement without success and publicly declared, “I would like to re-iterate my desire to engage in direct talks with the LTTE,” and emphasized, “War is not my method.” Presumably, the President being a professional lawyer clearly understood the meaning of the word ‘War’ in the eye of the Law.

It is noteworthy that President Mahinda Rajapaksa certainly did not exercise the power he had under the constitution to declare war against the LTTE. On the contrary, he endeavoured unsuccessfully to push forward the ‘Ceasefire’ agreement signed by Ranil Wickremesinghe. In the circumstances, it is reductio and absurdum to even suggest the commission of war crimes against the Sovereign State of Sri Lanka and the Head of State who manifestly did not declare war but acted in terms of section 27 (3) of the constitution as he was legally empowered to act upon.

Foreign enemy

However for the benefit of the lay person it is deemed expedient and necessary to refer to the Dictionary meaning of the word war to distinguish it from use of the term in statutes and laws. In the “Oxford Complete English Dictionary and encyclopedic reference (New) ‘War’ - (1a). armed hostilities between esp. nations”. Black’s Dictionary of Law - Fourth Edition. ‘War’ - Hostile contention by means of armed forces carried on between nations, states or rulers or between parties in the same nation or state”. It is noteworthy that the words herein “or between parties in the same nation or state “refers to “two groups of citizens of the same nation or state” who engage in fighting each other as it occurred in USA, then it is called ‘Civil War’. But if a group of American citizens whether black or white take up arms and strike the government of USA then the government does not declare war or fight a war but will use Military force if the Police are unable to deal with the situation.

The standard Book on the Indian Penal Code by Ratnalal & Thakore-Twenty Sixth Edition (1987) Quote Comment- “On Section 121 of the Indian Penal Code” that is identically the same as section 114 of the Ceylon Penal Code. “This section embraces every description of war, whether by insurrection or invasion. It punishes equally the waging of war against the government of India or attempting to wage such war, or abetting the waging of such war. Neither the number of persons nor the manner in which they are assembled or armed is material to constitute the offence under this section. The true criterion is the purpose or intention with which the gathering assembled. The object of the gathering must be to attain by force and violence an object of a general public nature thereby striking directly against the government’s authority.

‘Wages war’ - These words naturally import a person arraying himself in defiance of the government in like manner and by like means as a foreign enemy would do having gained footing within the realm. There must be an insurrection, there must be force accompanying that insurrection and it must be for an object of a general nature. The waging of war is the attempt to accomplish by violence any purpose of a public nature. When a multitude rises and assembles to attain by force and violence any object of a public nature, it amounts to levying war against the government. It is not the number or the force, but the purpose and intention that constitutes the offence and distinguishes it from riot or any other rising for a private purpose.”

War mongers

In the premises it is beyond any reasonable doubt that the LTTE comprised of a group of citizens of Sri Lanka who rose up in rebellion with the common object of creating a separate ‘Tamil Eelam State’ and struck the government with armed force and violence was guilty of waging war against the government of Sri Lanka thereby committing an offence punishable with death under Section 114 of the Penal Code of Sri Lanka.

It is manifestly evident that President Mahinda Rajapaksa having failed in all his peaceful efforts to reach a negotiated settlement with the untrustworthy ruthless LTTE terrorist war mongers was obliged to act lawfully in terms of section 27 (3) of the Sri Lanka constitution that enjoined the Head of State and Commander in Chief of the Armed Forces to protect the integrity and independence of the Sovereign State of the Democratic Socialist Republic of Sri Lanka against the armed uprising of a group of its own citizens waging war against the State that is an offence under Section 114 of the Penal Code of Sri Lanka, an offence punishable with death.

Undoubtedly the President is empowered under the Supreme Law of Sri Lanka to deploy the Armed Forces in the event the Police are unable to deal with the gravity of the situation that four elected Presidents before President Mahinda Rajapaksa were unable to quell even with the deployment of the Armed Forces.

Military operations

It is presumably crystal clear that perfect co-ordination and harmony prevailed among Defence Secretary Gotabhaya Rajapaksa and the Armed Forces including the Army Commander (who after the LTTE rebellion was crushed, it is now history, became a renegade) when President Mahinda Rajapaksa as Head of State and the Commander in Chief of the Armed Forces in fulfilment of his pledge “to defend by all means the country entrusted to him by the people” whose whole hearted co-operation and support he knew he had with him, then decided to commence military operations under his dynamic leadership against the LTTE terrorists and finally achieved success on or about May 19, 2009 to crush the rebellion and rid the country of the LTTE scourge that plagued Sri Lanka for over 30 years, restoring peace and harmony in the entire country, that the people eagerly yearned for.

The fundamental duties of the people of Sri Lanka are enshrined under section 28 of the constitution - The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations and accordingly it is the duty of every person in Sri Lanka:

(a) to uphold and defend the constitution and the law,
(b) to further the national interest and foster national unity,
(c) to respect the rights of others.

It may be noted that the foregoing fundamental duties are not justiciable. That is to say that the non-performance of the aforesaid duties and obligations cannot be the subject matter for adjudication in a court of law. Therefore it behoves a citizen to act inspired by a spirit within his or her own breast. Let’s unite to uphold and defend the constitution and the law as patriotic citizens of our motherland Sri Lanka.