A. WIJESURIYA and another, Appellants, and THE STATE, Respondent

005-NLR-NLR-V-77-A.-WIJESURIYA-and-another-Appellants-and-THE-STATE-Respondent.pdf


Wijeauriya v. The Stale
25
[Court of Criminal Appeal]
Present: Alles, J. (President), Thamotheram, J., andWimalaratne, J.
WIJESURIYA and another, Appellants, and THE STATE,
Respondent
C. C. A. Appeals Nos. 34-35 of 1973, with Applications 38-39
S. C. 623/71—M. C. Hambantota, 65988
Criminal law—Insurrection to overthrow the Government—Declarationof state of emergency and promulgation of Emergency Regula-tions—A suspected insurgent held in custody—Whether theprisoner can be killed by a military officer when there is a lullin the fighting—Prosecution instituted against the officer—Defences open to the accused—Burden of proof—Duty of a soldierto obey an order given by his superior officer—Limitationsthereon—Penal Code, ss. 2, 4, 69, 72, 89, 96—Public Security Act(Cap. 40), as amended by Act No. 8 of 1959, ss. 5, 8, 9, 12, 20, 23—Emergency Regulations published on 15th April 1971, Regulations19(1), 19(8) (a), 19(8) (b),20(2), 22, 23, 63—Army Act (Cap. 357),ss. 70, 100—Evidence Ordinance, s. 114—Court of Criminal AppealOrdinance (Cap. 7), s. 2(6).
Summing-up—Disputed questions of law—Duty of the Judge not toallow the jury to decide upon them.
The 1st accused-appellant, who was a Lieutenant and a Volunteermember of the Ceylon Army, and the 2nd accused-appellant, whowas a member of the Voluntary Force, were found guilty, at a trialbefore the Supreme Court, of the attempted1 murder of a youngwoman Premawathie (22 years of age) by shooting her withmachine guns on 17th April, 1971. Premawathie was shot dead byan unidentified soldier soon after she had been shot at by theappellants. At the time when the offences were committed atKataragama there was an armed insurrection amounting to civilwar in the country, which commenced on 5th April 1971. A stateof emergency had been declared on 16th March 1971 under theprovisions of the Public Security Ordinance, and EmergencyRegulations were promulgated for the preservation of public ordeTand for the suppression of riots and civil commotions. Members ofthe armed forces had been called out by the Prime Minister on7th March 1971 under section 12 (1) of the Public SecurityOrdinance.
There were sporadic attacks by the insurgents on the armedforces, but the shooting of the deceased Premawathie, who was asuspected insurgent held in custody after she had been arrested bythe Police, occurred when there was a lull in the fighting. Nor wasthere evidence that there was a state of actual war prevailing atKataragama on that day.
The main submission for the 1st accused was that the factualsituation which existed at Kataragama on 17th April 1971 justifiedthe shooting of Premawathie during a period of combat. It wassubmitted, upon certain evidence led in the case, that in shootingthe deceased, the 1st accused was only carrying out the order ofhis superior officer (a Colonel who was the Co-ordinating Officerof the District) to destroy (“bump off”) certain prisoners andthat the 2nd accused shot the deceased on the order of the 1staccused, his superior officer.
LXXV1I—2 & 3t* A 00040—2,SOS (04/74)
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Wijesuriya v. The Slate
Held, that, whether there was a period of combat on 17th April1971 or a state of actual war, in either case there was no justificationfor the shooting of a prisoner who was held in custody. In asituation such as that which existed on that date, a soldier subjectto Military Law “ continues to remain the custodian of the civillaw and it will be his duty to shoulder the responsibility of policeduties, in the discharge of which he is as much subject to the civillaw as the ordinary policeman The accused-appellants were notentitled to plead section 69 of the Penal Code in defence or to relyon any of the provisions of the Public Security Act and theEmergency Regulations made thereunder or on the Army Act.
Section 69 of the Penal Code which states that “ Nothing is anoffence which is done by a person who is, or who by reason of amistake of fact and not by reason of a mistake of law in good faithbelieves himself to be, bound by law to do it ” can have noapplication when a person obeys an order which is manifestly andobviously illegal. Except in the case of any special law in con-sequence of which the provisions of section 69 are suspended, asoldier stands on the same footing as an ordinary citizen as far ashis legal liability is concerned and if he wishes to seek the nrotectionof section 69 either under the Military Law or the EmergencyRegulations passed under the Public Security Act, the burden ison him to prove that he is entitled to protection under that Section.Illustration (d) of section 114 of the Evidence Ordinance relates tothe due performance and regularity of matters of procedure onlyand could not be relied upon by the 1st appellant to presume thelawfulness of the order given by the Co-ordinating Officer.
The Public Security Act and the Regulations made thereundergive no authority to shoot a prisoner held in custody. Sections 8 and9 of the Public Security Ordinance have, therefore, no applicationto the present case.
Section 100 of the Army Act requires a person subject to militarylaw to obey only the lawful commands given by his superior officers.It is not applicable to a command which is obviously unlawful.
Held further, that it would be an irregularity if the Judge, in hissumming-up, places before the jury for their consideration anddecision conflicting views of the law from the cases and commen-taries cited by Counsel on either side. It is not a function of thejury to make decisions on disputed questions of law. However, itcould not be said that, in the present case, the jury were confusedor misled in regard to the questions of law involved, although theJudge referred to the authorities cited by Counsel on either side.
Appeals against two convictions at a trial before theSupreme Court-
E. Chitty, with Eardley Perera, Kumar Chitty, G. L. M. deSilva, K. C. Kamalasabason, N. M. Gunawardena and AsokaGunaratne, for the 1st accused-appellant.
R. S. R. Coomaraswamy, with Eardley Perera, T. Joganathan,Palitha Wijetunga and Denzil Gunaratna, for the 2nd accused-appellant
Kenneth Seneviratne, Senior State Counsel, with D. S. Wije-singhe and Shibly Aziz, State Counsel, for the State.
Cur. adv. vult.AliL.ES, J.—Wijesuriya v. The State
21
November 5, 1973. Alles, J.—
The first appellant Lieutenant Wijesuriya, a Volunteer memberof the Ceylon Army, attached to the «frd Gemunu Watch, andAmaradasa Ratnayake a member of the Volunteer Force werecharged on two separate counts on an indictment with havingcommitted the offences of attempted murder of PremawathieManamperi by shooting her with Sterling sub-machine guns andcausing serious injuries to her. The offences are alleged to havebeen committed at Kataragama on the morning of 17th April 1971.■Soon afterwards Premawathie Manamperi was shot dead throughthe head with a rifle by an unidentified soldier, and she wasburied in a pit in a vacant plot of land. Both appellants wereunanimously convicted by the verdict of the jury, and sentencedto 16 years rigorous imprisonment each. Premawathie Manamperiwas the eldest daughter of Hendrick Appuhamy, a watcherattached to the Wild Life Department at Kataragama, and livedwith her parents, ten other brothers and sisters in a house bythe side of the road which ran from Tissamaharama toKataragama. She was a young woman, 22 years of age at thetime of her death, and had been chosen the Festival Queen ofKataragama the previous year.
It is now an established fact that on and after the 5th of April,1971, serious disturbances amounting to civil war occurredthroughout the greater part of the country in which severalyoung people lost their lives. The Courts have to take judicialnotice of the fact that there was an armed insurrection in thecountry, which commenced on 5th April, 1971, resulting inconsiderable loss of life and destruction of property, which madeit necessary for the Government to take stern measures to restorelaw and order. Since one of the main submissions of Counsel forthe 1st appellant centred on the factual situation which existedat Kataragama on 17th April which in his view justified theshooting of Premawathie Manamperi during a period of combat,it becomes necessary to examine the evidence, and arrive ata conclusion as to whether such a situation did exist as a fact.
In Ceylon the Public Security Act, No. 25 of 1947, provides forthe enactment of Emergency Regulations and the adoption ofother measures in cases of public emergency. Under Part II ofthat Act the President is empowered to make emergency regula-tions as “ appears to him to be necessary or expedient in theinterest of public security, and the preservation of public orderand the suppression of mutiny, riot or civil commotion, or for themaintenance of supplies and services essential to the life of thecommunity.” These are very wide powers and in the plenitude ofthese powers it was appropriate that a state of emergency shouldhave been declared when there was actual warfare, and theArmed Forces of the country were compelled to meet with force
28
ALICES, J.— Wijesuriya, ». The State
of arms an effective challenge by a group of insurgents, whosemain object was to overthrow the established Government ofthe country. Although the commencement of hostilities betweenwarring parties may be a question that can be determined withsome degree of certainty, the question when such a state ofaffairs ceases to exist can always be a matter of controversy.There may be a lull in the fighting which is only preparatory tothe enemy forces re-grouping themselves and attacking the otherparty with renewed vigour. On the other hand the cessation ofactual hostilities may be due to the fact that the State Forces hadeffectively quelled the rebellion.
When two countries are at war, a date and time when hostilitiesactually cease can be determined, because very often there is ajoint declaration by the combatants to that effect, which is givenwide publicity. But what is the position in the case of civilcommotion, when sporadic attacks continue for an indefiniteperiod ? For instance is a lull in the fighting indicative of the factthat the state of combat has ceased, or is it not possible for thereto be a fresh outburst of combat taking place even though theauthorities may think that hostilities have ceased ? These aredifficult and complex questions of fact which have been raised byMr. Chitty in the course of his argument and in respect of whichthe Court has to give a decision. During a time of actual war,the killing of enemy forces would be justified on the principlethat the public security of the State requires this drastic action.In my view this would be an extension of the right of privatedefence available to the armed forces of the country against theenemy. In the light of Mr. Chitty’s submission I shall now proceedto examine the factual position that existed on the 17th of April,1971 in the town of Kataragama.
The town of Kataragama, which has recently been declared asacred city, is a well known place of religious worship in SouthCeylon and is situated 11 miles from Tissamaharama. The roadfrom Tissamaharama to Kataragama runs through a belt ofjungle, and ends at Kataragama. Kataragama is a prosperoustown having a Post Office, a C. T. B. bus stand, several hotels,eating houses and a Pilgrims’ rest, which caters to the needs ofthe pilgrims who flock to this jungle shrine. Needless to mention,it is only during the pilgrim season that the town would becrowded, otherwise it would be one that is generally isolated and,having regard to the geography of the area, a place which wasvery vulnerable to insurgent attack.
Two witnesses have testified to the factual situation whichexisted at Kataragama on 17th April, Colonel Nugawela theCo-ordinating Officer of the Hambantota District, and defence
AL.LES, J.—Wijesuriya v. The Slate
29
witness Lieutenant Wijeratne. After his appointment as Co-ordinating Officer on 10th April, Colonel Nugawela left forHambantota on the 11th and reached Hambantota the same after-noon at 4 p.m. His force consisted of a Major, 2 Lieutenants, andapproximately 35 men. There were already troops stationed atTangalle—one officer, and 25 men, and at Tissamaharama, 2officers and about 50 men. One of the two officers stationed atTissamaharama was the first appellant Wijesuriya. Nugawela hasstated that about 11th April, the situation at Tangalle, Hamban-tota, and Tissamaharama was very serious. Food was in veryshort supply, there was a shortage of oil and petrol, and thetroops and Police were confined to limited areas and were havinga very tough time. At Kataragama the whole area was overrunby insurgents, the civil administration had broken down, therewas no supply of food except for whatever was distributed by theGovernment Agent, Monaragala, and Nugawela gathered that theinsurgents were very active in the area.
Kataragama Police Station consisting of 1 Inspector, a Sergeantand 7 Constables had been attacked on 5th and 6th April. On5th April, the officer-in-charge, Inspector Udawatte had left forMatara leaving the station in charge of Sergeant Munidasa.Munidasa states that on the 5th of April there were two attackson the station by the insurgents using bombs and firearms. Theinsurgents were repulsed by the Police and in the morning twoinsurgents were found dead as a result of the police firing. On the6th there was a second attack on the station and Sub-InspectorUdawatte, who had returned to the station by that time, gavethe order that the station should be abandoned and that thepolice should retreat to Hambantota. There was damage to thepolice station as a result of the bombs being thrown and firearmsbeing used by the insurgents. Nugawela had his first briefingsession with his officers on the 12th and he decided to leaveKataragama, to be overrun by the insurgents for a few daysbecause he was short of troops and ammunition and in his opinionit would have been a hazardous venture to try and captureKataragama at that stage, particularly in view of its vulnerableposition. Nugawela also realised that Kataragama was a problemfor several reasons. Firstly, even if he took over the administra-tion at Kataragama he was going to be vulnerable to any subse-quent attack because of the terrain and his information was thatinsurgents in this area were very active. There was also thethreat that if he sent out any troops they might have beensurrounded and wiped out. He also had information that the road-blocks between Tissamaharama and Kataragama had beencleared and that the insurgents were running a skeleton busservice.
so
ALL.ES, J.— Wijesuriya v. The State
The situation at Tissamaharama also had been bad but Wije-suriya and his men had been able to establish a base at Tissa-maharama between the 10th and 12th April, and the police stationhad been re-established. Nugawela decided to attack Katara-gama on the 16th and ordered Wijesuriya and his platoon of25 men to proceed to Kataragama. At 5.30 p.m. on the 16th aftera short briefing session at Tissamaharama at which Nugawelagave a talk to boost the morale of the men, Wijesuriya and hisplatoon set out for Kataragama in a jeep and two Tippers, andwas able to reach Kataragama without any incident and set uphis quarters at the Pilgrims’ Rest. Lieutenant Wijeratne with4 jeeps and 16 men kept the lines of communication from Katara-gama to Tissamaharama clear. The success of Wijesuriya’smission was reported to Nugawela at Hambantota, and after11 days the Army were able to establish a base at Kataragama.The police officers who had been attached to the KataragamaPolice Station were directed to take up residence at the Armycamp since the Police Station was damaged. Wijesuriya’s plan ofaction after setting up his base at Kataragama was firstly torepulse any possible attacks on his temporary headquarters andonce his base was firmly established to sally forth and flush outthe insurgents from the neighbouring areas. This was undoub-tedly a dangerous operation particularly as it was reported thatthere were about 500 insurgents in the jungles surroundingKataragama. Nugaw~ela has paid a handsome tribute to thecombat qualities of the 1st appellant. He has referred to him as aperfectly reliable combat officer in regard to whose bravery hehad no doubt. He had brought Tissamaharama to normal and theadvance on Kataragama on the 16th was carried out at conside-rable risk to himself and his men. It is singularly unfortunatethat with this record the 1st appellant should find himself beingcharged with the serious offence of Attempted Murder.
Wijeratne has also given evidence in regard to the criticalsituation that existed in Hambantota District up to 16th April.He stated that up to the 14th April the movement of troops wasrestricted to Tissamaharama and that Kataragama wascompletely in the hands of the insurgents. Nugawela wantedKataragama captured at the earliest possible opportunity usingthe maximum force necessary. Although there were no clashesbetween the Army and the insurgents on the 16th and Wijesuriyaappears to have been consolidating his position at Kataragamaduring the whole of the 16th, this does not necessarily mean thatthe danger of insurgent attack was not present even thereafter.
About 9 a.m. on the 16th Inspector Udawatte and threeconstables came in a jeep to the house of Leelawathie Ubesinghe,the mother of the deceased girl and forcibly removed the girl
ALI-.ES, J.—"Wijesuriya v. The State
3)
from the house and took her to the Army camp. When the motherinquired from the Police why her daughter was being taken,Udawatte gave the cryptic reply that she was being taken to findout the reason. Four other girls had been brought to the ArmyCamp the same day and detained and when Nugawela visitedKataragama on the evening of the 16th he saw four or five girlsat the Camp and was informed that they were women insurgentswho had been ferreted out by Wijesuriya. It has been suggestedto Leelawathie Ubesinghe that her daughter was arrestedbecause she was a suspected woman insurgent leader. There isno evidence to positively establish this, but it is quite possiblethat this was so in fact, otherwise there was no reason why sheshould have been arrested on the morning of the 16th and whyshe was singled out the following morning for the brutal andhumiliating treatment to which reference will presently be made.A witness Oliver Silva saw her being questioned at length byWijesuriya on the morning of the 17th and when she was madeto walk nude along the main road soon afterwards, she wasasked by Wijesuriya to recite the words “I attended all fiveclasses ”, which was a part of the indoctrination programme ofthe insurgent movement. I do not think it therefore unreasonableto infer that the girl was being questioned by Wijesuriya inregard to her suspected insurgent activities.
On the whole of the 16th Wijeratne with four jeeps patrolledthe road between Tissamaharama and Kataragama and at Katara-gama itself there were no attacks on the Army Camp althoughthere was information that there was insurgent activity around.Kataragama appeared to be returning to normal on the eveningof the 16th. On the 17th morning Oliver Silva, a member ofNugawela’s volunteer force was on Internal Security Service andabout 9 a.m. escorted the mails that had to be brought fromHambantota to Kataragama. The road was clear and he reachedKataragama about 10 or 10.15 a.m. and saw about 50 soldiers inthe Army Camp. The soldiers would have comprised the membersof Wijesuriya’s platoon and members of Wijeratne’s patrollingparty. According to Oliver Silva there were people outside thebuildings, buses were plying along the main road and everythingappeared normal. Another witness Perera, an employee ofBrown’s Hotel, Yala, his father and Mr. White of the Wild LifeDepartment had been invited for lunch by Wijesuriya two daysearlier when Wijesuriya had come to Brown’s Hotel andcommandeered two jeeps. Yala is approached from Tissamaha-rama in a different direction and Perera met with no obstructionup to Kataragama. According to Perera a sumptuous lunchconsisting of beef, roast pork and peacock flesh had beenprepared. He however, was not able to partake of the meal since
32
AXLES, J.—Wijesuriya v. The State
he had been a witness to the shooting of the girl a little whileearlier. In spite of the prevailing tension conditions could nothave been that bad on the morning of the 17th if such a lunchcould have been prepared at the Army Camp.
Wijeratne gives more positive evidence about the conditions atKataragama. According to him on the 16th life was graduallycoming back to normal. The 1st appellant was directing thebuses at the C. T. B. Depot and getting people to open theirboutiques, the Milk Bar was being opened and Wijesuriya wasdistributing free milk to the people.
There is no evidence of any clashes between the Army andthe insurgents on and after the 16th, but there is evidence thatwhile the Army troops were moving into Kataragama one personwas shot. There was also the body of a priest with injuries foundclose to the Post Office. Having regard to these facts, was theuneasy situation that existed, a lull before a possible storm andcould the 1st appellant and the members of his small platoonhave been confident that they had successfully staved off anyfuture attacks on Kataragama by establishing a base at thePilgrims’ Rest ? Or should one re-echo the words of Nugawelathat “ one afternoon you won’t hear of anything and the nextmorning it will come up again ” and assume that the danger ofattack was still imminent ? Wijesuriya was stationed at Katara-gama until the end of April and in the Hambantota District for afurther period of a month to ensure that law and order wasrestored.
I have dealt in some detail with the situation that existed inthe Hambantota District and Kataragama in particular, not onlyin view of Mr. Chitty’s submission that a period of combatexisted, but also because, in my view, the background of the casehas a bearing on the sentences that have been imposed on theappellants.
In view of the live possibility of an attack on Kataragama onthe 17th, I am prepared to agree with Mr. Chitty’s submissionthat a period of combat existed at Kataragama on the 17th butthis cannot lay the foundation for the further submission, in theabsence of evidence, that there was a state of actual warprevailing at Kataragama on that day. In either case there wasno justification for the shooting of a suspected insurgent takeninto custody. What then is the position of a soldier subject toMilitary Law in such situation ? He continues to remain thecustodian of the civil law and it will be his duty to shoulder theresponsibility of police duties, in the discharge of which he is asmuch subject to the civil law as the ordinary policeman. If he
ALLES, J.—Wijesuriya v. The State
33
claims that he acted on the orders of his superior officer as justi-fication, such a defence must be related to the provisions of thecivil law. A soldier may sometimes find himself in an embarras-sing situation having to obey the orders of his superior officers,but under Military Law he is only required to obey such ordersif they are lawful commands.
Before dealing with the defence raised by Mr. Chitty underthe Civil Law and his criticisms of the charge of the trial Judge,I might recount the facts that led to the shooting of the deceased.These facts have been deposed to by three eye witnesses—OliverSilva, D. D. Perera and Aladin—and briefly their evidence is tothe following effect :—The deceased was being questioned byWijesuriya at the Army Camp and Oliver Silva got the impres-sion that she was being asked about her complicity in theinsurgent activities. Wijesuriya then asked her to remove herclothes'and in spite of her protests and pleadings she was com-pelled to take off all her clothes. Wijesuriya then asked her towalk along the main road with her hands held over her headexposing her nakedness reciting the words “ I have followed allfive lectures ”. The two appellants armed with Sterling sub-machine guns and another soldier walked on either side. Whenshe had proceeded about 200 yards along the road she turnedtowards the post office. The 1st appellant then kicked her on thehip and opened a short burst of fire on her. The girl fell down.She crawled some distance and again got up and walked and fellagain. The appellants then returned to the camp. Then one ofWijesuriya’s men mentioned that the girl was still alive where-upon the 1st appellant ordered the 2nd appellant to go and shoother. The 2nd appellant then went up to the place where the girllay fallen and opened another short burst of fire on her. Aladinwho had been asked by the Army personnel to dig a pit and burythe girl reported twice that she was still alive and it was onlythereafter that an unidentified soldier went up and shot herthrough the head with his rifle. She died immediately and wasburied with her clothes in a pit.
Since the appellants have not given any explanation andstated the reasons which prompted them to act in this brutalmanner after humiliating her one can only speculate as to whyshe received this sordid treatment at their hands. The sugges-tion that she was an insurgent may well be true and it is possiblethat she was not prepared to disclose anything to Wijesuriyain spite of his persistent questioning. It may be that the 1stappellant, in the state of tension that must have prevailed atthe time, intended that the public humiliation and killing ofthe girl should serve as a deterrent to the other insurgents whowere surrounding the jungles of Kataragama at the time.
A 08049 (04/74)
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AXLES, J.— Wijcsuri.ya v. The Slate
I shall now proceed to examine Mr. Chitty’s submission thatin shooting the deceased, Wijesuriya was only carrying out theorders of his superior officer Nugawela to “ bump off ” theprisoners. Counsel for the 2nd appellant also made the samesubmission. There was, of course, in the case of the 2nd appellant,positive evidence of the prosecution itself that he shot the girlon the orders of the 1st appellant.
Nugawela has denied that he ever gave any instructions to hisofficers to the effect that since they could not be bothered withprisoners they should be “ bumped off ”. His position is thathe directed that all prisoners should be handed over to the civilauthorities. Wijeratne stated that on the 14th he took chargeof five prisoners—3 men and 2 women—and that he receivedorders from Nugawela that the prisoners should be handed toWijesuriya with instructions that the women should be releasedand male prisoners disposed of. This position was however, notsuggested to Nugawela when he was giving evidence. The otherdefence witness Shiromani stated that when Nugawela cameto Kataragama on the 16th evening he heard him tell the 1stappellant to “ bump off ” the prisoners. Judging from certainquestions put by the foreman of the jury to Shiromani at theconclusion of his evidence it would appear that the jury weredoubtful whether Shiromani’s evidence on this point was true.Although the evidence discloses a dispute on this question offact as to whether Nugawela gave such an order or not, it isnot possible to state what view the jury took in regard to thisissue and one must proceed on the basis, however unlikely itmay seem, that they believed that such an order was given. Thetrial Judge dealt fully with the evidence in regard to the factualposition whether an order was given or not and directed thejury that if they came to the conclusion that there was no orderthe protection afforded to the 1st appellant under the law didnot arise and thereafter proceeded to deal with the position inlaw if such an order was in fact given. In either case it was opento the jury to arrive at a verdict adverse to the appellants. Thisbeing a direction on a question of law it became necessary for theJudge to explain the law under Section 69 of the Penal Code.
Section 69 is the first of the General Exceptions specified inthe Penal Code and the Judge had necessarily to deal at theoutset with the burden of proof which lay on the defence toprove that they were entitled to the protection afforded underthe Section. It was Mr. Chitty’s submission that this burdenhad been discharged because under Section 114 of the EvidenceAct a presumption arises in regard to the lawfulness of officialacts. The presumption however, that arises under Section 114 isconfined to presumptions on questions of fact and not of law.
AI.LKR, J. Wijesuriya v. TheSlalc
35
The presumption arises in regard to the regularity of the ordergiven but cannot affect its lawfulness which must be provedindependently.
Mr. Chitty criticised the directions of the learned trial Judgeon the law and has claimed that as a result of the misdirectionsand non-directions on the law his client is entitled to claima retrial. It was his submission that there was an inadequatedirection on the law in regard to Section 69 ; that the views onquestions of law by lay witnesses Nugawela and Wijeratne wereadopted by the Judge as a statement of the law ; that there wasa misdirection in regard to the applicability of the PublicSecurity Act and the Emergency Regulations made thereunderand that the jury have been confused by an elaborate discussionon the law where passages from judgments and the conflictinglegal views of commentators have been read in extenso to thejury which effectively prevented the learned trial Judge fromperforming his duties of laying down the law as required underthe Criminal Procedure Code.
Section 69 of the Penal Code states that—
“ Nothing is an offence which is done by a person who•is, or who by reason of a mistake of fact and not by reasonof a mistake of law in good faith believes himself to be,bound by law to do it. ”
The first illustration to the section has relevance to the facts ofthe present case.
“ A, a soldier, fires on a mob by the order of his superiorofficer, in conformity with the commands of the law. A hascommitted no offence.”
To entitle a person to plead Section 69 as a defence it is essen-tial that the order given by the superior, even if it be notstrictly lawful, prompted the person obeying the order toconsider himself bound by law, in good faith to act on the basisthat it was a lawful order. The Section can have no applicationwhere in terms of the enabling statute the order is one that islawful, because in such a case the question of bona fides andsufficient grounds is immaterial. In the case of a lawful orderthere was a duty to do and it was done whatever may be thedoer’s motive. For instance, if a superior officer orders his subor-dinate to shoot a member of the enemy forces in the act ofblowing up a bridge the order would be clearly a lawful order.An examination of the illustration to the Section referred toclarifies the position. The Section does not state whether theorder is lawful or not but the illustration implies that it is
<0
ALLES, J.—Wijtauriya v. The State
wrong. If it had been right, then the act would have been legalapart from good faith and his belief in its legality. It is onlywhen the order is illegal that the questions of good faith andbelief in its legality arise. If the order is manifestly and obviouslyillegal, and this may be apparent to any lay person from thenature of the order itself, as for instance when a supejrior ordershis subordinate to commit rape or shoot a prisoner1, iti negativesthe issue of good faith and the person obeying the order is notprotected under Section 69.
The learned trial Judge in dealing with Section 69 firstexplained the presumption that everyone is presumed to knowthe law. He stated in the passage which I shall mark as* A’: —
“ There is a presumption that everyone knows the law,otherwise the law becomes unworkable. There is thatpresumption to start with, and I must tell you, though thereis a state of emergency, it does not mean that the ordinarylaw of the country is suspended. The ordinary law remainsand that law may have been added to by various EmergencyRegulations but the civil law remains. I must also tell youthat the normal law applies as much to every citizen,whether he be a private citizen or whether he bea mobilised soldier. Everyone is bound by the ordinarylaw. It may be that soldiers are armed they can use force,but they must use force according to the ordinary law.They cannot use indiscriminate force but the ordinary lawgives a certain kind of protection to persons who obeysuperior orders, and that protection is given by virtue ofSection 69 of the Penal Code.”
Mr. Chitty submits that this is an incomplete statement of thelegal issues since soldiers subject to Military Law are notgoverned by the civil law. He also submitted that in respect ofmembers of the armed services reference should have beenmade to the provisions of the Public Security Act which extendedthe scope of the ordinary law. I do not agree this was aninadequate statement of the law. Except in the case of actualcombat, where the provisions of Section 69 are suspended, asoldier stands on the same footing as an ordinary citizen as far ashis legal liability is concerned and if he wishes to seek the protec-tion of Section 69 either under the Military haw or theEmergency Regulations passed under the Public Security Actthe burden is on him to prove that he is entitled to protectionunder the Section.
In directing the jury on the law as laid down in Section 69 thelearned trial Judge indicated that the Section had no applicationif the superior’s order was a lawful order, as for instance when
AXLES, J.—Wijeauriya v. The State
37
he orders a soldier to fire at a mob which is violent and comesforward to attack, because in such a case there is an immediatefear that they would cause serious damage to person andproperty. In such a case the order is one that is lawful and thesection has no application. He then dealt with the position of anorder which was not strictly lawful in the following terms(Passage marked ‘ B ’) : -—
“ If there is a mob which is not violent, which probably hasno weapons and which is not restive, and a superior officertells a soldier to fire, and the soldier fires at the mob, theorder itself was not a strictly lawful order, because an ordercannot be given to fire at a mob, which is quiet, and in thosecircumstances the soldier, of course, acts on the order of hissuperior, and he fires. In such a case, the soldier is protected.The position there is, the soldier must carry out the lawfulcommand of his superior officer. Because there are circum-stances when a soldier cannot have the time to think, whetherit is a lawful or unlawful order; he cannot do these things,but he has to decide on the spur of the moment and if hehonestly believes that under the prevailing circumstances theorder given by his superior officer was lawful, and he isbound to carry it out, he is protected. That is the protectionthat is given to him under the section.”
In the passages “A” and “B ” the learned trial Judge has dealtwith the essential matters that must be taken into considerationby the jury in dealing with Section 69—the presumption thatevery person, be he a soldier or an ordinary citizen, is presumedto know the law, the effect of a lawful order given by a superiorofficer, the legal consequences that arise when the order is notstrictly lawful and the issue of good faith. He then directed thejury that the “ mere fact that there was such an order does notabsolve the 1st appellant ” and proceeded to examine the legalposition on the footing that Nugawela had given the order thatthe prisoners should be destroyed. Fifteen pages of his chargethen proceeded to deal with the cases cited by Counsel on eitherside and to deal with passages from the Commentaries. Thesewere quoted at length to the jury and one does not know whatimpression the citation of conflicting passages on the law had onthe minds of the lay jury. Mr. Chitty submitted that thisamounted to a non-direction and misdirection on the most crucialand vital issues of law and this procedure effectively preventedthe judge from laying down the law with certainty and authorityin accordance with the imperative requirements of procedure. Ithink Counsel’s criticisms on this issue are partly justified andthat it would have been better if the trial Judge refrained fromadopting this method of explaining the law to the jury which is
38
AI.LES, J.— Wijesuriya v. The State
likely to create confusion in their minds. Counsel for the State,who was the same Counsel who prosecuted at the trial informedus that when Counsel for the defence was addressing the jury hecited the South African case of R. v. Smith and read passagesfrom the report in support of the legal position that the 1stappellant was protected under Section 69. This prompted himto reply by citing authorities to the contrary from the well knownCommentaries on the Indian Penal Code and passages from theManual of Military Law. If Counsel for the defence chose to citeauthorities it was surely for the benefit of the Judge and I thinkit might have been more desirable that the citations on either sideshould have been made to the judge in the absence of the jury andthe learned trial Judge having had the benefit of the citations oneither side could then have proceeded to lay down the law to thejury in simple and concise language which could be understoodby laymen. The reason for discouraging citations from cases andcommentaries to the jury is obvious since a lay jury cannot beexpected to know the law and still less make decisions on dis-puted questions of law. The Calcutta High Court in Jabanullah v.Emperor1 (1929) 32 Cr. L. J. Ill at 113 made the followingobservations in regard to this matter : —
“It is often useful to illustrate the meaning of a legaldoctrine by relevant examples culled from the books orstated by the learned judge in his own words but the practiceof reading out head-notes or other portions of the report of acase not before them to the members of the jury is adangerous practice which is to be discouraged as more likelyto mystify than enlighten the jury.”
There is of course, no objection to a judge citing well knowndicta or referring to the pronouncements of eminent judges whensuch references are expressed in easy and understandablelanguage but the position is quite different when conflictingviews of the law are placed before the jury for their considerationand decision. In regard to the citing of cases by Counsel in thecourse of the trial, Lord Abinger C:. B. in Regina v. Parish’8 C. & P. 95 had the following remarks to make : —
“ Mr. W, I cannot allow you to read cases to the jury. It isthe duty of the jury to take the law from the Judge. It nodoubt often happens that, in an address to the jury, Counselcite cases ; but then it is considered that that part of thespeech of the Counsel is addressed to the Judge. That cannotbe so here, as you very properly in the first instance referredme to the case, and you have my opinion on it ; you can there-fore make no further legitimate use of the case, and the only
(1929) 32 Or. L. J. Ill at 113.
‘SO.iP. 95.
ALL.ES, J.— Wijeauriya v. The State
39
effect of reading it would be to discuss propositions of lawwith the jury with which they have nothing to do, and whichthey ought to take from me.”
The Calcutta High Court again made the following observationsin Meher Sardar v. Emperor (1912) 13 Cr. L. J. 26 : —
“ We notice that he (Counsel) has cited and commented ona number of rulings of this Court and told the jury that it wasfor them to say whether any of these rulings of this Courtare exactly on all fours with the circumstances of the present
caseNo ruling or authorities are ever to be cited to
the jury nor are they to be asked to differentiate or form anyopinion whatever on any authorities. It is for the Judge andthe Judge only to tell the jury what the law is, and before hetells them what it is he may consult as many authorities ashe pleases and these authorities are, no doubt binding uponhim. The minds of the jury should never be confused byhaving a number of conflicting authorities or indeed anyauthorities laid before them.”
Finally there are these wise words of Sir Francis Maclean, ChiefJustice of the Calcutta High Court, in Chakraverti v. Emperor *(1905) 2 Cr. L. J. 157 at 158 and 159 : —
“ The duty of a Judge in charging a jury in a criminal caseis to make up his mind as to what the law is, and to tellthe jury what it is, as succinctly and clearly as he can. If heturns out to be wrong, a higher tribunal can set him right.But to cite to the jury a large number of cases which thejury cannot possibly understand is calculated to confusethem and to lead to a miscarriage of justice.”
Apart from the case of Smith cited by Counsel for the defence,Counsel for the State cited two cases from the Commentary onthe Indian Penal Code by Ratanlal and Thakore, passages fromGour’s Commentary and passages from the Manual of MilitaryLaw.
I might have been inclined to accede to Mr. Chitty’s applicationthat this was a case of a mistrial and remit the case for a freshtrial had I not been satisfied that in spite of this irregularity thejury have not been confused in regard to the real issue whichwas sought to be placed before them for their consideration. Allthe citations dealt with the issue whether the order of thesuperior officer was so manifestly and obviously illegal that it didnot provide a defence under Section 69. In dealing with theSouth African case the Judge directed the jury “ that if the
1 [1912) 12 Cr. L. J. 26.
[1905) 2 Cr. L. J. 157 at 158 and 159.
40
AliLES, J.—Wijesunya t>. The State
order is obviously and manifestly illegal according to theordinary law of the land, it is the duty of the soldier to refuse tocarry out such an order.” Again in respect of a case cited byCounsel for the State he told the jury that although it wasan order carried out in obedience to the direction of a superiorofficer the accused was not protected as it was obviously andmanifestly an illegal order since there was no violent moboutside. In respect of a passage cited from the Manual of MilitaryLaw the learned Judge unfortunately used the followinglanguage which has been the subject of Counsel’s criticism : —
“ I would not recommend that construction because it isa recent construction. If we were to adopt that constructionthen the purpose of Section 69 would be lost. Section 69protects unlawful orders being carried out on a superior’sorders, but only certain types of unlawful orders, namely, anunlawful order which is not obviously and manifestlyillegal. ”
But even here the learned Judge stated that if the order wasobviously and manifestly illegal it did not serve as a defence.When one takes the directions of the Judge as a whole, afterconsidering the facts of the cases cited, it seems to me that theJudge prominently placed before the jury the issue as to whetherNugawela’s order was a manifestly and obviously illegal orderand in the circumstances of the case it was an issue on whichthe jury could arrive at a decision without difficulty.
After quoting the law from the authorities and citations theJudge summed up the legal position in the following terms whenhe stated : —
“Although the authorities that I cited show you thatwhere under a given set of circumstances, probably undercombat conditions or even otherwise, if an order is given bya superior and a private thinks that this order does notappear to be strictly correct, like firing into an inoffensivemob, but still because he honestly believes that he isbound by the superior’s orders to carry it out and he carriesit out and probably kills some, then certainly Section 69 stillprotects him, although that order was still unlawful andshould not have been given ; but on the other hand if asuperior officer gives a private an order to shoot a volleyinto a crowded street, then the private must exercise hisjudgment and he must see that this is a manifestly andobviously illegal order and therefore refuses to carry it outand if he does carry out such an order then he will be doingit at his own peril and he would be responsible for all thecriminal consequences.
AXLES, J.—Wijeauriya v. The Slate
41
These are the considerations that apply if you come to theconclusion on a balance of probability that Colonel NugaweJadid in fact give an order to the 1st accused to bump off theprisoners. Would any reasonable man under the circum-stances in which the 1st accused was, if such an order wasgiven to him, honestly believe that he was bound to carryit out because it is not or manifestly illegal ? Or on the otherhand would any ordinary person in the circumstances inwhich the 1st accused was, if such an order ivas given atonce have seen that this is an obviously and manifestlyillegal order and should not be carried out ? If it is the firstconclusion that you come to, then of course the 1st accusedis protected ; if however you come to the latter conclusionthen the 1st accused is not protected.”
I do not think that the jury would have had any hesitation inunderstanding the legal position after this clear exposition ofthe law. Mr. Chitty submitted that by repeatedly using thephrase “ manifestly and obviously ” illegal order that thelawfulness of the order has been withdrawn from the jury.The passage from the summing-up quoted above indicates thatthe lawfulness of the order was left to the jury to decide. Whenone considers the charge as a whole including the passagesmarked “ A ” and “ B ” referred to earlier, it seems to me thatthere has been a proper and adequate direction on the law inregard to Section 69 of the Penal Code.
In regard to the case against the 1st appellant there remainsfor consideration two other matters which were raised byMr. Chitty—that the Judge accepted the statement of the lawfrom Nugawela and Wijeratne and that the Judge hadmisdirected the jury in regard to the applicability of thePublic Security Act.
In regard to the first matter Nugawela stated in answer toState Counsel that it would be contrary to law and againstinstructions to kill prisoners who had been taken into custody.Wijeratne gave evidence to the same effect when he stated thatan order to kill a prisoner would not be a lawful command ifgiven by a superior officer. In cross-examination Wijeratne wasquestioned by State Counsel in regard to the terms of the GenevaConventions which prohibited the killing of prisoners, humiliat-ing and degrading them and which sought to lay down codes ofconduct in regard to the treatment of prisoners of war. Counselfor the 1st appellant has criticised the conduct of State Counselin eliciting these matters and also stated that the learned trialJudge was in error when he referred to Wijeratne’s evidence onthis point because in his submission the learned trial Judge was
42
ALLES, J.— TVijeauriya v. The StcUe
inviting the jury to accept the law from Wijeratne. I am unableto agree that on both these matters there was either misreceptionof evidence or a wrong direction on the law by the Judge. Ineliciting the contents of the Geneva Convention learned StateCounsel was only placing before the jury Wijeratne’s knowledgeof the factual situation as a member of the Armed Forces inregard to a relevant matter—the treatment of prisoners takeninto custody by the Army. Learned State Counsel has drawnattention to the fact that according to the Treaty Series No. 9 of1959 the Government of Sri Lanka has been a signatory to theConventions and ratified and accepted its terms which deal,inter alia, with the removal of prisoners, their detention andrelease. The Conventions after signature were presented andratified by Parliament. These are official acts of the State inregard to which judicial notice may be taken under the EvidenceAct. Nor do I think that in recounting Wijeratne’s evidence forthe benefit of the jury, including his views on the GenevaConventions and his opinion that an order to kill prisonerswas obviously unlawful and that he would not carry out suchorders, the trial Judge was inviting the jury to accept the lawfrom Wijeratne.
Finally there was Mr. Chitty’s submission that the trial Judgewas in error in withdrawing from the jury that the PublicSecurity Act had no application to the case of his client. It washis submission that an argument was available to him underSection 9 of the Public Security (Amendment) Act 8 of 1959that no prosecution shall lie against any person for any act ingood faith done in pursuance or supposed pursuance of anyprovision of the Emergency Regulations. Part 4 of the EmergencyRegulation 19 (8) (a) provides for the removal of any personarrested from the place of arrest to any other place anywherein Ceylon and detained in custody, and 19 (8) (b) entitles thepersons making the arrest to use such force, including armedforce as may be necessary. Regulation 20 (2) states that “ anyperson detained in pursuance of Regulation 19…. in a placeauthorised by the Inspector-General of Police may be so detained
for a period not exceeding 15 days and shall be
released at the end of that period by the officer-in-charge of thatplace, unless such person has been produced by such officerbefore the expiry of that period before a Court of competentjurisdiction ”. Regulation 23 enables such persons to be dealtwith as though he has been produced in accordance with theprovisions of Sections 36 and 37 of the Criminal Procedure Code.
Under Part III of the Public Security (Amendment) Act thePrime Minister has the power to call out the Armed Serviceswhen the Prime Minister considers that circumstances-
AX.LES, J.— h ijeaurtya v. The State
43
endangering the public security in any area have arisen, or areimminent and is of opinion that the powers of the Police areinadequate to deal with the situation in that area. The membersof the Armed Forces so called out have the same powers as thePolice to search and arrest persons, but Section 20 of the Amend-ment Act specifically makes provision that “ any person arrestedby any member of the Armed Forces who is called out by Ordermade under section 12 shall without unnecessary delay hedelivered to the custody of a police officer to he dealt withaccording to law
Therefore under the Emergency Regulations although theArmed Forces have the same powers as the Police to arrest andsearch persons taken into their custody they must withoutunnecessary delay deliver them to the custody of the civilauthorities. Section 20 is wide enough to apply to personswho are even arrested in actual combat. I have already indicatedthat there was ample opportunity for the 1st appellant tohave despatched the prisoners in his custody to Tissamaharamaor Hambantota. The Public Security Act and the regulationsmade thereunder give no authority to destroy prisoners. Thelearned trial Judge therefore quite rightly directed the jury thatas a matter of law Sections 8 and 9 of the Public Security Acthad no application to this case.
Mr. Coomaraswamy for the 2nd appellant sought to draw adifference in regard to the culpability of his client as distinctfrom that of the 1st appellant. He submitted that his clientbeing a volunteer and a person who was not present at any ofthe briefing sessions could not have known that the order,admittedly given to him by the 1st appellant, was a manifestlyillegal order. He also submits that unlike the 1st appellant whoreceived his orders from Nugawela on the evening of the 16th,his client received the order to shoot at the time of the trans-action and was compelled to act on the spur of the moment.Under Section 100 of the Army Act (Chapter 357) every personsubject to Military Law is only bound to obey the lawfulcommands given personally by his superior officers. The 1stappellant’s order to shoot the deceased being obviously anunlawful command no defence was available to the 2ndappellant even under Military Law.
I do not think that there could be any real distinction betweenthe cases of the two appellants. The evidence indicates that the2nd appellant was present at the time the girl was questionedand was made to strip ; that he accompanied the 1st appellantarmed with a gun ; that he was present at the time the 1st appel-lant shot and that when he received the orders from the 1st
44
AIiLES, J.—Wijeruriya v. The State
appellant he knew the girl was still alive and carried out theorders without protest. This entire sordid episode was witnessedby all the soldiers who were present at the compound of thePilgrims ' Rest. When the girl in her dying moments called forwater one of the soldiers from the compound shouted that ifanyone dared to give water to her he would be shot. In spiteof this threat however a member of the public gave her threebottles of orange barley. Wijeratne stated in evidence that ifthe order to shoot was given by a superior officer it was mani-festly an illegal order and he would have refused to carry itout. This was knowledge of which the 2nd appellant, as thesecond in command of Wijesuriya’s platoon, would have beenaware of. It seems to me that the shooting and killing of Prema-wathie Manamperi was one for which the appellants must shareresponsibility and in the circumstances it is difficult for thisCourt to draw a distinction between the culpability of the twoappellants.
I have given my anxious consideration to the sentencesimposed in this case particularly as the other members of thisCourt do not agree that the sentences imposed on the appellantsshould be reduced. In normal times the nature of the crime isone that would have deserved the maximum punishment, but Icannot lose sight of the fact that these offences occurred duringa period of great stress and tension in the country, the bruntof which had to be borne by the Police and the Armed Forces.Insurgent activity was at its peak in April 1971 and the livesand liberties of the inhabitants of Kataragama depended on thebravery and the qualities of leadership displayed by Wijesuriyato which ample testimony has been paid by Nugawela and Wije-ratne. The tension that prevailed at Kataragama on the 16th and17th April must have severely affected the morale of Wijesuriyaand his small platoon of 25 men who had to face the danger ofpossible attack from the insurgents who were lurking in largenumbers in the jungles of Kataragama. Having regard to the factthat this unfortunate incident took place during a period ofcombat and the possibility that Wijesuriya did receive an orderfrom Nugawela to destroy the prisoners I am of opinion that thesentence of 16 years rigorous imprisonment imposed on theappellants is too severe. I would reduce the sentence imposed oneach appellant to 7 years rigorous imprisonment. Subject to thisvariation in the sentence the applications are refused and theappeals are dismissed.
In view of the important issues of law that have been arguedin the course of this appeal, the Court decided in terms of Section2 (6) of the Court of Criminal Appeal Ordinance to deliverseparate judgments.
THAMOTHEjRAM, J.—Wijeguriya v. The State45
Thamoxheram, J.—
The jury by their unanimous verdict found the two appellantsguilty of the attempted murder of Premawathie Manamperi, ayoung girl of 22 years of age, by shooting her. The girl was killedby a shot from a rifle fired by an unidentified soldier, after shehad been shot at by the two appellants with sub-machine guns.
The State charged the appellants on two separate counts ofattempted murder on the basis of their individual acts of shoot-ing. The girl was discovered to be still alive when she was aboutto be buried. The final act which completed the killing was thatof a soldier who was not before court and who by his act put anend to her misery.
The case for the prosecution was that she was killed incircumstances of very great aggravation and brutality—apremeditated offence committed with sadistic delight. It was theaccident that death did not swiftly follow the shooting by thetwo appellants which saved them from having to face a chargeof murder. Whether the Attorney-General could still havebrought a murder charge, notwithstanding * the fact that anunidentified soldier had fired the actual shot which killed her,is a matter which need not be discussed here. The two appellantsand another soldier had participated in the killing playing theirrespective parts in achieving their object and putting into effectthe 1st appellant’s intention manifested when he came out intothe compound.
Mr. Chitty for the 1st appellant commenced his argumentsuggesting that the bizarre account by the prosecution witnessesof what happened had clouded the real issues in the case. NeitherMr. Chitty nor Mr. E. R. S. R. Coomaraswamy who appeared forthe 2nd appellant, seriously contested the facts as spoken to bythe prosecution. There can be no doubt that the 1st appellantfired at the helpless girl, rendered more helpless by having towalk nude with her hands upraised and the 2nd appellant firedwhen she lay fallen equally helpless. There can be no doubt thateach had an intention to kill. There was no question of grave andsudden provocation, of a suddent fight, or of the exercise of theright of private defence. The resulting position was that in theevent of the defence not establishing that there were circum-stances which justified or exonerated them in view of someprovision of law, there was for the prosecution evidence ofkilling which in itself was manifestly and obviously illegal andany order to kill equally illegal.
There were two matters about which both counsel complainedand which could be disposed of, before I deal with the main pointsstressed in appeal.
46TI1AMOTHEKAM, J.— \ ijesuriya v. The State
The first was that the question of whether the deceased wasraped before she was killed, was raised by asking the witnessAladin about his seeing blood on her thighs and by questioningthe J.M.O. as to whether the tears on the girl’s hymen could havebeen caused by sexual intercourse. As there was no charge ofrape this wouM have caused prejudice. In our view the learnedjudge had adequately directed the jury asking them to ignorethis evidence.
The other was that two dgfence witnesses were asked abouttheir being charged with rape of another girl who was also takeninto custody on suspicion of being concerned with insurgentactivities in the area. The point was that only convictions can beproved in a court of law and not the mere fact of a pendingcharge.
I do not think that even a conviction on a charge of rape canby itself be relevant to show that a witness is not worthy ofcredit. The relevance of the fact that both witnesses were facinga charge of rape lay in the fact that they too were charged, asthe appellants were, of committing an offence against a girltaken about the same time on suspicion of being concerned withthe insurgency and that therefore liable to be biased. In anyevent we do not think this could have caused sufficient prejudicein the context of the total evidence in the case, so as to resultin a miscarriage of justice.
Much of Mr. Chitty’s legal argument was based on the gravesituation which obtained in the country at the time. He freelyused terms such as “in actual combat ”, “ in the field ”, “ at thetime of combat ”, “ prisoners of war ”, “ subject to military law ”“ military necessity ”, and so on. These terms can mean nothingand have no relevance unless they can be reduced to a legalbasis. In order to see if there is such legal basis, and if so, onwhat provisions of law they are based, it is necessary to examinethe situation in the country and more the actual situations whichconfronted the appellants between the 11th of April and 17thApril 1971.
We need no evidence to hold that on the 5th April 1971 andfor sometime thereafter there was an insurrection wherecertain elements in the country sought to topple the Govern-ment by using force. There was a serious threat facing theGovernment and she had still not overcome the insurgents.
Cblonel Nugawela who had been appointed Co-ordinatingofficer for this area said that when he went on the 11th April thesituation in the whole area was bad. At Tangalle, Tissa andHambantota the morale was very low, the food situation was in
THAMOTHJiKAM, J.— Wijesuriya v. The State
47
very short supply and the troops and the police were confinedto limited areas and were having a very tough time. At Katara-gama the whole area was overrun by the insurgents, and civiladministration was broken down. There was no supply of foodexcept for whatever was being distributed by the GovernmentAgent, Moneragala.
The Kataragama police station was under S. I. Udawatte andthere were seven constables attached to it. On the night of 5thand in the early hours of the 6th there were two attacks on thepolice station. S. I. Udawatte was away from the station. Theseven constables repulsed both attacks. In the morning theyfound two insurgents killed by their firing at them.
As their stock of ammunition was running low they left thestation. They went to Tissa and on the 16th when the army tookover the C.T.B. Pilgrims’ Rest at Kataragama for their quartersthese officers returned and stayed in the same premises.
Colonel Nugawela went to Hambantota on the 11th April, toassume duties as co-ordinating officer. Among the soldiers whowent with him was the prosecution witness Lesley Oliver Silva.They did not encounter any insurgents on the way. There is noevidence of any direct encounter with insurgents during thewhole of the period between 11th to the 17th. The witness OliverSilva who was on internal security duties which necessitatedpatrolling the area assigned to him did not meet any insurgentsin combat or otherwise. On the 16th April the 1st appellant wentto Kataragama and established his headquarters at Kataragama.He did not meet any resistance from the insurgents.
K. B. Attanayake, Inspector of Police in charge of Tissapolice said that the 1st appellant handed to him three men andtwo women who were suspected insurgents. He handed them toInspector Sirisena of the Hambantota police. S. I. Sirisena handedthese suspects to the remand prison at Hambantota. They wereto be detained till the army called for them. The witnesses calledby the defence themselves admitted that there was sufficientroom at the Pilgrims’ Rest itself for the detention of suspectedinsurgents by the police. Further they could have been sent toHambantota and Tissa police stations.
On the 14th April, Lieutenant Wijeyeratne took charge ofthese five prisoners at the Hambantota lock-up and handed themover to the 1st appellant. There is no evidence of what happenedto them. There is no suggestion that any suspected insurgentstaken into custody during this period were shot other than thedeceased.
48
THAMOTHERAM, J.—Wijesvriya v. The State
The deceased was the eldest daughter among eleven children.At the time of the incident she had left school and while resultswere pending she was teaching in a Government School. Exactlyone year before her death on 17.4.70 she was crowned “ AuruduKumari ”.
On the 16th April, at about 9 a m. the deceased was combingher hair in her home at Kataragama. A police officer questionedher mother where her daughter was. Constables Siripala andOpatha of the Kataragama Police walked into the room, heldher by the konde and pulled her out. She shouted out “ AiyoRalahamy, what is this for ? ” Constable Aladin held her by thekonde and pulled her almost up to the gate. Constable Siripalathen prodded her with the butt end of the rifle on her shoulder.They pulled her almost up to the jeep near which was S. 1.Udawatte. When she was asked to get into the jeep she asked“What is the reason ? Why should I get into the jeep ? ” OneOfficer replied “ We are taking you to find the reason ”.
At this time, as already pointed out the Kataragama Policewere housed in the same premises as were the army unit underthe 1st appellant. Rightly or wrongly she was in police custody.The next piece of evidence we have is that on the next day shewas questioned by the 1st appellant, a soldier, and put to deathby three soldiers the chief of whom was the 1st appellant. Howshe could be called a prisoner of war beats me. How her shootingcan be a matter of military necessity is again beyond me.
In fairness to the deceased girl it must be said that therewas no evidence to show that she was an insurgent. If the policehad material for suspicion this was not before court. Her motheremphatically denied she was an insurgent.
It has seldom become necessary to refer to Sections 2 and 4 ofthe Penal Code. In the present case it is relevant to remind usthat under Section 2 of the Penal Code “ every person shall beliable to punishment under the Code and not otherwise for everyact or omission contrary to the provisions thereof of which heshall be guilty within this island ”. Under Section 4 “ Nothing inthe Code is intended to repeal, vary, suspend or affect any of theprovisions of any special or local law A special law is a lawapplicable to a particular subject. The resulting position is thatsoldiers shall be liable as any other person unless there is aspecial law governing them which exempts them from beingsubject to it.
Mr. Chitty in his written submissions stated that the relevantcivil law in the present case consists of the provisions of thePenal Code, the Army Act and Sections 8 and 9 of the Public
THAMOTHERAM, J.—Wijeeuriya v The State
49
Security (Amendment) Act and complained that the Army Acthad not been referred to in name or substance and the applica-tion of Sections 8 and 9 of the Act No. 8 of 1959 has been deniedby the learned judge.
He has not referred us to any special law which places asoldier outside the category of every person who shall be liableunder the Penal Code nor has he referred us to the specificSection or Sections of the Army Act which the learned judgeshould have referred to in his charge.
The fact that a person is subject to military law does notaffect his liability to be tried by the civil courts. Section 77 ofthe Army Act states that nothing in the Army Act shall affectthe jurisdiction of a civil court to try or to punish for any civiloffence any person subject to military law. The only otherSection of the Army Act which has relevance to the present caseis Section 100 which lays down the rule that a soldier has toobey the lawful command of his superior officer. I shall refer tothis Section later.
In the course of the argument reference was made to Sections8 and 9 of the Public Security Act. Section 8 reads “No emergencyregulation and no order, rule or direction made or given there-under shall be called in question in any Court ”.
I do not know why this Section was even cited because theevidence does not disclose the existence of any order, rule ordirection made or given under any emergency regulation. Thereis evidence that Colonel Nugawela gave an order to bump offprisoners of war which was denied by Colonel Nugawela himself.There was no evidence that this order was made or given underany emergency regulation. No occasion arose to question suchan order as there was no evidence that such an order was made.
Section 9 of the Public Security (Amendment) Act reads“No prosecution or other criminal proceeding against any personfor any act purporting to be done under any provision of anyemergency regulation or of any order or direction made or giventhereunder shall be instituted in any court except by or withthe written sanction of the Attorney-General and no suchprosecution or other proceeding civil or criminal shall lie againstany person for any act in good faith done in pursuance orsupposed pursuance of any such provision ”.
It was open to the defence to have taken up the position thatthe case was instituted in the Magistrate’s Court wrongly withoutthe Attorney-General’s sanction. The appellants were facing acharge at the trial presented by the Attorney-General. The pointshould have been argued at the commencement. The defence
50
TH.A. MOTHER AM, J.—Wijeauriyu v. The Stale
could have at the commencement urged that no prosecution layagainst the appellants as their acts of shooting the deceased were“ in good faith done in pursuance or supposed pursuance of anyorder or direction given under Emergency Regulations.”
Mr. Chitty said it was not done at the commencement as someevidence had to be led. Even the leading of the necessaryevidence could have been done at the commencement, but atwhatever stage done, it was a matter for decision by the judge.It is my opinion that the learned judge was right when he toldthe Jury “ I would direct you as a matter of law that Sections 8and 9 of the Public Security Act will have no application to anorder such as the order alleged to have been given byCol. Nugawela ”.
Gour in his Commentary (7th edition page 285) states that asoldier may be ordered to use force in four cases—
When his country is at war with another ;
When an area is proclaimed under martial law ;
When he is called in to aid the civil authorities to
preserve or restore order ;
When the civil authorities withdraw leaving the
military to preserve of restore order.
In the first two cases the civil law is suspended. In the 3rd casethe responsibility to maintain public order remains with the civilauthority. In the last case that responsibility is thrown on themilitary who are called on to perform police duties in the dis-charge of which they are as much subject to the ordinary lawas they would be, if instead of being directly charged with theduty of restoring order they were still under the civil power, theonly difference being that the directionary control is shifted fromthe civil to the military.
Factually the situation at the time in Sri Lanka did not fallunder the first two classes ; we were not at war against anothercountry ; martial law had not been declared ; for our purpose itdoes not matter if civil administration had broken down or notand whether the situation was as set out in (3) or (4) abovementioned. In the one case the military is called in to assist thecivil authority to maintain public order, in the other they takedirect responsibility for it ; in both cases they are subject to theordinary law of the land. The military was certainly not calledto wage a civil war. Their duties could include the duty to killin which event they must be covered by one of the generalexceptions to the Penal Code. They do not have any more powerthan a police officer in the circumstances.
THAMOTHERAM, J.— Wijesuriya v. The State
61
This position is clearly brought out when we consider thepowers of the Prime Minister to call out the armed services.
Section 12 (1) of the Public Security (Amendment) Act.states—
“ (1) Where circumstances endangering the public securityin any area have arisen or are imminent and the PrimeMinister is of the opinion that the police areinadequate to deal with such situation in the area, hemay, by Order published in the Gazette, call out allor any of the armed forces for the maintenance ofpublic order in that area.
(2) The members of any of the armed forces who are calledout by Order made under subsection (1) for thepurpose of maintaining public order in any area shallfor such purpose have the powers, including the powersof search and arrest, conferred on police officers byany provision of this part or of any other writtenlaw, other than the powers specified in Chapter XII ofthe Criminal Procedure Code.”
This provision clearly indicates the purpose of calling out thearmed forces. It is for the maintenance of public order. The powerof the armed services is not more than that of the police for thispurpose and they do not have power of investigation ; which thepolice have under Chapter XII of the Criminal ProcedureCode.
Not only the factual situation but the position in law of thearmed services show how singularly inapposite are the termssuch as “ in combat ”, “ in the field ”, “ prisoners of war ” and“ military necessity ”.
The Penal Code applies to every person including a personsubject to military law and in the absence of any special lawgiving rise to a special defence, it is necessary to come in by wayof the Exceptions in the Penal Code in order to be exonerated, ifthe criminal act alleged has been proved or admitted.
Section 69 of the Penal Code is the only exception under theCode which has relevance to the defence taken, viz., that the girlwas killed in pursuance of an order given by Col. Nugawela.
Section 69 reads : —
“ Nothing is an offence which is done by a person who is,or who by reason of a mistake of fact and not by a mistakeof law in good faith believes himself to be, bound by law todo it. ”
52
THAMOTHERAM, J.—Wijeauriya v. The State
Now Section 100 of the Army Act says that every person sub-ject to military law who disobeys any lawful command given bya superior officer commits an offence. This means that a soldieris bound by law to obey a lawful command of his superior officer.
Section 69 being an Exception it was for the defence toestablish on a balance of probability that there was a lawfulorder given by Col. Nugawela and therefore he was bound bylaw to carry out the order to kill.
It seems to me that it was almost an impossibility to prove thatthe order given was lawful when the person who was alleged tohave given the order denied he gave it and the person whocarried out the alleged order himself kept silent. It is not possibleto prove the lawfulness of the order by calling a person who onlyclaims that he overheard the order being given.
Mr. Chitty relied on illustration (d) of Section 114 of theEvidence Ordinance to prove the lawfulness of the order. Section114 states that “ the court may presume the existence of any factwhich it thinks likely to have happened, regard being had to thecommon course of natural events, human conduct, and publicand private business in their relation to the facts of the particularcase.” The illustration says “ the court may presume that judicialand official acts have been regularly performed ”.
This is a presumption of fact which may or may not be drawnand in my opinion cannot be drawn in the instant case in regardto the order of Col. Nugawela as he himself had denied that hemade such an order. Moreover I do not think that the lawfulnessof the order can be presumed when such an inference does notarise from the common course of natural events, human conduct,public and private business in their relation to the facts of thepresent case.
There are many Indian authorities in support of my view. Theillustration permits a presumption to be drawn in matters ofprocedure. But it does not permit a presumption to be drawnwhere the question does not relate to the manner of doing anofficial act but goes to the root of the validity of that order. SeeSwadeshi Cotton Mills Co. Ltd. v. State Industrial Tribunal.1U. P. 1956 All. 689 ; Emperor v. Bhikua 1950 Bombay 330.
It has been held that the validity of a warrant or detentionorder cannot be presumed. In short when something has to beproved it cannot be done by means of a presumption which mayor may not be drawn. Though official acts may be presumed tohave been regularly performed, such presumption cannot supply
1 U. P. 1956 All. 689.
(1950) Bombay 330.
THAMOTHERAM, J.— Wijesuriya v. The State
68
deficiency in the proof. See Mookram Ali v. Cultack Municipa-lity/ 14 Cr. L. J. 91. The words “regularly performed” in theillustration mean done with due regard to form and procedure.The presumption applies to procedure only…. There can be nopresumption that the court will always be correct in its decisionon points of law—P. Chowdhury v. Juffar Mahammad 2 1914 Cal.849.
Counsel on both sides at the trial had been drawn into anargument as to what extent a soldier was bound to obey theorders of his superior.
The first time the matter was raised at the trial as far as I cansee, is when the defence counsel asked the prosecution witnessLesley Silva :
“ Q 291. Whatever orders given by Col. Nugawela would haveto be complied by Lieut. Wijeyaratne or Lieut- Waniga-sekera ?
A.Yes or by one of the sergeants ”.
Then again the defence counsel asked his own witnessLieut. Wijeyaratne.
“ Q 2204. Were you under any obligation as the local headto follow any orders given by Col. Nugawela ?
A.I am under obligation to carry out the legal orders of
Col. Nugawela.”
The State Counsel then proceeded to underline this answerpursuing this matter.
“ Q 2221. That is to say that a person belonging either to theregular army or the volunteer force of the army has toobey only the lawful and legal commands given by asuperior officer ?
A.Yes.”
“ Q 2222. An order to kill a prisoner would not be lawafulcommand if given by a superior officer ?
A.Yes”
“ Q 2227. Why do you say that an order to kill a prisonerwould be lawful ?
A.Under the Geneva Convention a captured prisoner
cannot be done away with.”
It was this evidence about which Mr. Chitty bitterly complainedas being misreception of evidence and that a mistrial hadresulted by asking witnesses their opinion about the law on thesubject. 1
1 14 Or. l. j. si.
* 1914 Cal. S49.
-84
TH A.MOTHER AM, J.—Wijeaitriya v. The State
After the witnesses from the army were asked what theywould have done if they were faced with a similar order andwhether they would have considered themselves bound by lawto carry out the order, Counsel on both sides had continued thisargument in their addresses citing books and authorities.
The judge is required to charge the jury summing up theevidence and laying down the law by which the jury are to beguided.
The first question we have to ask ourselves is whether counselshould have been allowed to go into the questions of lawinvolved. Mr. Chitty conceded that an answer was difficult.This is because much will depend on the facts and the nature ofthe defence in each case. I cannot see how defence counsel couldhave refrained from discussing the law when he had to prove ona balance of probability—
that the appellants were bound by law to kill the
deceased ; or
that they by reason of a mistake of fact and not by
reason of a mistake of law in good faith believedthemselves bound by law to kill the deceased.
A discussion of the law by counsel under the control of thejudge was necessary in view of the defence taken. Then, thejudge, in summing up, had to refer to the arguments of counselso that the jury might be guided. I do not see how this couldhave misled the jury into arriving at a wrong verdict so longas nothing was presented to the jury erroneously as the lawgoverning the subject when in fact it was not.
The discussion of law really centred on to what extent a personsubject to military law is bound to obey the command of hissuperior officer. Three different positions emerged—
A soldier must obey the command of his superior
whether it was lawful or not.
A soldier must obey the command of his superior only
if it was lawful. This view came into conflict withthe requirement that a soldier must give hisunquestioning obedience to his superior’s order. Veryoften he will not have time to consider its lawfulness.He does not give his mind to it. It is wrong in suchcases to say that he has reason to believe it to belawful. It is just that he does not think it to beunlawful.
T hi A MO TH E RAM, J.—Wijesuriya v. The Stale
55
From this there emerged the third view that a soldier wasbound to obey only orders which were not manifestly andobviously illegal. That is, where the illegality strikes one in theface. In such cases if he obeys such an order the law will presumethat he has obeyed with knowledge of its illegality. This viewis more favourable to the appellants as Section 100 of the ArmyAct says that a soldier is bound to obey the lawful command ofhis superior officer. It is this view the learned judge directed thejury to follow, when he asked the jury at page 452 of his charge“ So gentlemen these are the considerations that apply if youcome to the conclusion on a balance of probability that Col.Nugawela did in fact give an order to the first appellant to bumpoff prisoners.
Would any reasonable man under the circumstances in whichthe 1st accused was, if such an order was given to him, honestlybelieve that he was bound to carry it out because it is notobviously or manifestly illegal ? On the other hand, gentlemen,would any ordinary person in the circumstances in which the1st accused was, if such an order was given at once have seenthat this is an obviously and manifestly illegal order and shouldnot be carried out ? If it is the first conclusion that you come to,then of course the first accused is protected, if however youcome to the latter conclusion then the first accused is notprotected.”
The same questions the learned judge posed in regard to the2nd appellant at page 454 of his charge and said “ if you come tothe conclusion that the 2nd accused honestly believed that hewas bound by law to carry it out because it was not anobviously and manifestly illegal order then the 2nd accusedis protected.”
The learned judge had made it quite clear what, in his view,was the law applicable to the facts of the case. He had told them,in unmistakable terms, they must take the law from him. Hehowever first discussed the authorities cited by counsel. I thinkthat we make a mistake, if we think that the jurors of todaycannot follow a discussion on the law but have to depend onthe “ ipse dixits ” of the judge. Law is common sense and I amsatisfied the judge could not have confused the jury by his deal-ing with the law discussed by counsel. I
I think it must be kept in mind that the second limb of Section69 does not come into play in this case as there was no mistakeof fact, which could have led the appellants in good faith tobelieve themselves to be bound by law to do the act.
86
THAMOTHERAM, J.—Wijesuriya v. The State
The authorities cited merely sought to modify the meaning ofthe word “ lawful ” to mean something which was not manifestlyand obviously illegal and that in such a case >a soldier is boundby law to do what he is ordered to do.
If on the fadts of this case it is sought to come under the secondlimb it can be argued that a mistake of law under the section isno defence however reasonable the belief is as a result of themistake of law. The law is that a soldier is bound by law to obeythe orders of his superior so long as what is ordered is not mani-festly and obviously illegal. In this view of the matter thelearned judge had no need to leave the issue of the lawfulnessof the order to the jury nor was there a burden on the appel-lants to prove on a balance of probability that the order was law-ful. All they had to prove Was that the order was not obviouslyand manifestly illegal and it is this issue which the learned judgeleft in the jury. There was no evidence at all of the lawfulnessof the order. In these circumstances the appellants could havestill succeeded if they could have shown that the order was notmanifestly and obviously illegal. The facts in the case wereagainst the appellants and we need not refer to the GenevaConvention to prove that the killing of this girl in the circum-stances was manifestly and obviously illegal.
An attempt was made to distinguish the case of the 2ndappellant. The prosecution evidence disclosed that he fired atthe fallen girl when ordered to do so by the 1st appellant. Itwas an act of mercy—He had not caused serious injuries. Thesewere all arguments Mr. Coomaraswamy urged in an effort toplace the 2nd appellant in a different and more favourableposition. He urged that as an officer under the 1st appellant hecould not have refused to carry out the order.
When the conduct of the 2nd appellant is considered from thebeginning of this transaction I find it difficult to see any diffe-rence in their respective liability. There had been willing andready co-operation with the first appellant. In these circum-stances he is equally liable.
Mr. Coomaraswamy also suggested that the 2nd appellant’ssentence should be reduced though Mr. Chitty said nothingabout sentence. Even on the question of sentence I find it difficultto draw a distinction. I cannot see any mitigating circumstancesin the whole transaction for us to interfere with the sentencesof either appellant.
Applications are refused, and appeals dismissed.
WIMAX.ARATNB, J.—Wijeeuriya v. The State
C7
WrMAXARATNE, J.
In view of the submission of learned Counsel for the 1staccused-appellant that upon a general survey of this extraordi-nary case and its background of events, in particular the armedinsurrection which began on 5th April, 1971, it becomes apparentthat the application of the provisions of the Penal Code alone isinadequate to meet the exigencies of the situation and to deter-mine the rights and liabilities of the members of the Armedservices in the field in time of combat ; and his further sub-mission that a consideration of the issues involved is of thegreatest public importance, in principle much more far-reachingthan the specific facts of the present case, because, of theconflict of duty that may result from a soldier’s obedience tosuperior’s orders under the Army Act, I consider it pertinent tomake my own observations on some aspects of this case.
Due to the existence of a state of emergency, the Governor-General by Proclamation dated 16th March, 1971, declared that theprovisions of Part II of the Public Security Ordinance (Chapter40) shall come into operation throughout the Island. On thesame day, certain Emergency Regulations were promulgatedunder Section 5 for the preservation of public order and forthe suppression of riots and civil commotions. Under Section12 (1) of the same Ordinance, members of the Armed forces hadon 7th March, 1971 been called out for the maintenance of publicorder. That the country faced a serious situation as a result ofthe activities of the insurgents was not in issue at the trial.
The Kataragama Police station was one of several policestations attacked by the insurgents on the night of 5th April, 1971.There were two attacks each lasting about one hour. Bothattacks were repulsed by the police officers, consisting of asergeant (Munidasa) and seven constables. The insurgentsattacked with hand bombs ; the police officers defendedthemselves by firing with sterling sub-machine guns, rifles andshotguns. On the morning of 6th April, the dead bodies of twoof the insurgents dressed in blue uniforms were found a shortdistance away. There were no casualties on the police side, butthe rear portion of the roof of the police station and the plasterof the walls had been damaged. On the evening of the 6th, theA. S. P. of Tangalle and Lieutenant Musafer in charge of aplatoon stationed at Tangalle came and instructed the police tohold on. By that time, the officer-in-charge, Sub-InspectorUdawatte, who had been absent on duty the previous day, hadalso returned to station. A further attack on the night of the6th lasting about half an hour was also repulsed, but asammunition was running low, the police decided to evacuate anddid evacuate the station and left for Hambantota. According to
68
WIMALABATNE, .T.— Wijesuriya v. The Stale
Munidasa, there was no obstruction to their passage and noinsurgents were encountered on the way to Hambantota thatnight. The only evidence of damage to public property atKataragama was this damage to the police station and to a WildLife Department bungalow close by.
On the 10th April Colonel Derrick Nugawela of the Volunteerforce was appointed Co-ordinating officer for the HambantotaDistrict, comprising the towns of Tangalle, Hambantota, Tissa-maharama and Kataragama. He reached Hambantota on theevening of the 11th and established his headquarters at the RestHouse. He had under his command seven commissioned officers(inducing the 1st accused, Lieutenant Wijesooriya) and about125 men. He described the situation in his area as very bad. AtTangalle, Tissamaharama and Hambantota the morale was verylow. Food and petrol were in short supply and the troops andpolice were confined to limited areas. The situation in Katara-gama was extremely bad. The whole area had, according toreports furnished to him by the 1st accused, been overrun byinsurgents. The civil administration had broken down. There wasno supply of food except for whatever was being supplied by theGovernment Agent, Monaragala. He also learnt that this area wasvery badly infested with insurgents.
Although law and order had to some extent been establishedby the 1st accused and his men at Tissamaharama by the12th, Nugawela did not want to attack and take over Kataragamawithout having sufficient troops and ammunition. As a result ofsubsequent intelligence reports however, he decided to attackKataragama on the 16th. His plan was to send one platoon withone officer and to follow up with a group to keep the road fromTissa to Kataragama open. The platoon of 25 men was in chargeof the 1st accused and included the 2nd accused, Sergeant Rat-nayake. The group to keep the road open was in charge of oneLieutenant Wijeratne. After an initial briefing by Nugawela inthe early hours of the morning of the 16th, the platoon underthe 1st accused left the Tissa Rest House, proceeded withoutencountering any obstacles, and established their camp at theC. T. B. pilgrims rest at Kataragama. There was no trouble fromthe insurgents either on the 16th or the 17th.
All the police officers who had evacuated Kataragama on the6th night returned to Kataragama on the 16th morning andoccupied two rooms in the same pilgrims rest. That same mor-ning, Udawatte and three other police officers had gone in ajeep to the house of the deceased Premawathie Manamperi, abouthalf a mile away from the police station, and had forcibly re-moved her to the police station despite the protests and entrea-ties of her mother. Although she made search for her daughter,
W1MALARATN.E, J.— VYijcsuriya v. The State
59-
the mother was imable to trace the girl. She only saw the deadbody of the deceased on the 24th May, 1971 when it was exhumedfrom a land near the bus stand. She denied that the deceasedwas an insurgent responsible for the attacks on the police stationon the nights of the 5th and 6th, and she also denied that groupsof insurgents were fed in her house.
At the trial, three eye witnesses, Oliver de Silva, D. D. Pereraand Aladin, gave evidence regarding the shooting and burialof Premawathie Manamperi at about 11 a.m. on the 17th ofApril. The girl, it would appear, was questioned by the 1staccused at the army camp compound that morning. The 1staccused thereafter asked her to remove her clothes. The girlrefused and cried and asked the 1st accused to shoot her if hewanted. The 1st accused replied “ shooting is my business. Youcarry out my orders ”. The girl removed her dress. The 1staccused wanted her to remove the balance of her clothes ; where-upon, she removed her brassiere and the underskirt, and shewas completely nude. She attempted to cover her nakedness withher hands, but the 1st accused ordered her to put her hands upand to march towards the high road and the town, saying: “ Iattended all the five classes The girl obeyed this order andwent on the high road towards Tissarnaharama. The two accusedand another followed her, and a few yards before they reachedthe post office, the 1st accused kicked and pushed her, andopened a short burst of fire with a sub-machine gun from behindat close range. After the girl fell down, the two accused wentback to the army camp. Then, a soldier from the camp hadshouted that the girl was still alive ; whereupon the 1staccused ordered the 2nd accused to go and shoot her. The 2ndaccused went up to the place where the girl was lying fallenand opened another short burst of fire also at close range. Atsome stage, witness Aladin had gone up to her and had givenher water or some aerated water to drink. After sometime, onthe orders of the army officers, Aladin had dug a pit and placedthe body of the girl by the side of the pit. Later, an unidentifiedsoldier went up and shot the girl through the head with a rifle.She died immediately and was buried in the pit.
This was the case presented by the prosecution on the twocharges of attempted murder against the accused. The defenceraised by the accused at the trial was a defence under Section69 of the Penal Code, that they acted under the orders of theirsuperior officers. The evidence relating to and relevant to thisdefence was elicited from three witnesses, namely, LieutenantWijeratne, Corporal Shiromani, both called by the defence, andColonel Nugawela. Lieutenant Wijeratne’s evidence related tosome instructions given him by Nugawela on the 14th of April
60
W1 MAX A RATNE, J.—Wijeewriya v. The State
regarding five other prisoners who were then in the Hambantotaremand lock-up. He said he was told by Nugawela to removethose prisoners from the lock-up and hand them over to the 1staccused (who was then stationed at Tissa) with instructions torelease the two female prisoners and to “ bump off ” the maleprisoners. He complied with that order by handing over the fiveprisoners to the 1st accused and he also conveyed the instructionsof Nugawela. The 1st accused told him on that occasion that he(the 1st accused) too had received similar instructions fromNugawela over the telephone. Witness Shiromani was in thegroup that was patrolling the roads under the command ofWijeratne. He said that at about 11 a.m. on the 16th when hewas at the pilgrims rest, Nugawela came there and spoke to the1st accused. Although he did not know the nature of the conver-sation, at a certain stage he heard Nugawela telling the 1staccused “ no use of prisoners, bump them off ”. Those wordswere uttered a bit loud with some action or accent, and that ishow he heard them, and not the rest of the conversation.Nugawela’s evidence, however, was that he went to this campat Kataragama twice on the 16th and during his second visit inthe evening he saw four or five women insurgents inside thebuilding. He did not give the 1st accused any instructions inregard to those girls. When he was questioned as to whatinstructions he gave his officers at earlier briefings, he replied,“I said, if you go into combat, you will use maximum force.Once we get accomplished, we will establish law and orderwherever it has broken down ; as far as the prisoners areconcerned, from a logistic point of view, they are a burden onus, and it is the responsibility of the police to take charge ofthem. Those were my instructions ; and I said all prisoners shouldbe handed over to the police Nugawela was cross-examinedby the defence in order to establish that at the initial briefingsheld on the 11th and 12th, he ordered his officers to “ bump off ”prisoners. When he was questioned as to whether he did notgive instructions such as “ take no prisoners, bump them off ”,he denied that he gave such instructions. He also denied thathe told his officers that wherever possible, prisoners should bebumped off close to their homes, so that the area would not besmelling of corpses.
The questions the jury had to decide therefore were, whetherthe accused shot the deceased, inflicting injuries on her, whetherthey had a murderous intention and whether the defence underSection 69 was available to the accused, under the circumstancesof this case. But in the course of his address to the jury, learnedCounsel who appeared for the accused also took up the positionthat by virtue of Sections 8 and 9 of the Public SecurityOrdinance (Chapter 40) as amended by Act No. 8 of 1959, the
WIMAIjARATNE, J.—Wijesuriya v. The Stale
61
accused could not be tried in the ordinary courts. The learnedtrial Judge dealt with that plea and directed the jury as a matterof law, that Sections 8 and 9 of the Public Security Ordinance hadno application to an order such as the order alleged to have beengiven by Colonel Nugawela. The contention of learned Counselfor the 1st accused-appellant is that Section 9 prohibits a courtfrom inquiring into the lawfulness of orders given by ColonelNugawela at a time when the emergency regulations were inoperation. Section 9 of the Public Security Ordinance reads asfollows : —
“No prosecution or other criminal proceeding against anyperson for any act purporting to be done under any provisionof any emergency regulation or any order or direction madeor given thereunder shall be instituted in any court exceptby, or with the written sanction of the Attorney-General;and no suit, prosecution or other proceeding, civil orcriminal, shall lie against any person for any act in goodfaith done in pursuance or supposed pursuance of any suchprovision. ”
Learned Senior State Counsel has referred us to the relevantprovisions of the Public Security Ordinance and the EmergencyRegulations, which have vested the members of the armed forceswith powers which they would not have otherwise had. Abrief analysis of certain provisions is necessary and are set outbelow.
Under Section 12 (1) of the Ordinance, where circumstancesendangering the public security have arisen or are imminent inany area, and the Prime Minister is of opinion that the policeare inadequate to deal with such situation in that area, she maycall out all or any of the members of the armed forces for themaintenance of public order in that area. Section 12 (2) providesthat the members of the armed forces so called out shall havethe powers, including the powers of search and arrest, conferredon police officers by this Ordinance or any other written law,other than the powers specified in Chapter XII of the CriminalProcedure Code (that is, relating to the investigation of offences).Under Section 20 any person arrested by a member of the armedforces must, without unnecessary delay, be delivered to thecustody of a police officer to be dealt with according to law.Section 23 is similar to Section 9 except that by Section 23immunity is conferred in respect of acts done in pursuance orsupposed pursuance of any provision of Part III of theOrdinance ; whereas under Section 9 immunity is conferred inrespect of acts done in pursuance or supposed pursuance of anyprovision of an emergency regulation.
62
WIMALAKATNE, J.— li ije&uriya v. The fttnte
Emergency Regulations to deal with this situation were madeon 16th March, 1971, and then again on 15th April, 1971. As thealleged offences have been committed on the 17th April, 1971,I shall refer to the Regulations as published on 15th April, 1971.Regulation 19 (1) gives the power to a police officer or a memberof the armed forces to arrest without a warrant any person whois committing or has committed or whom he has a reasonableground of suspecting to be committing or to have committed,an offence under an emergency regulation. Regulation 19 (8)deals with the treatment of persons so arrested. There is thepower to remove a person from the place of arrest to any otherplace to be detained in custody and there is the power to useall such force including armed force as may be necessary forthe purpose of such removal and detention. Regulation 22 createsand defines certain offences akin to arson, looting and trespassand provides for even the death penalty for these found guiltyof such offences. There is also a consequential amendment toSection 96 of the Penal Code whereby the right of private defenceof property is extended to the voluntary causing of death, if theoffence which occasions the exercise of that right is an offenceas defined in regulation 22. Regulation C3 provides that certaincategories of police officers and members of the armed forces mayorder any person found in a public place to remove himself fromsuch a place and on failure to comply with such an order, theofficer may proceed to give effect to such an order by forceincluding armed force.
What does Section 9 of the Ordinance mean ? It means thatno prosecution or other proceedings shall lie against any personfor any act done in good faith in pursuance or supposed pursuanceof any provision of any emergency regulation. Similarly,Section 23 of the Ordinance means that no prosecution or otherproceedings shall lie against any person for any act done in goodfaith in pursuance or supposed pursuance of any provision ofPart III of the Ordinance. In order to seek immunity therefore,it is necessary that the act done must be in relation to anemergency regulation in force or in relation to a provision ofPart III of the Ordinance. The doer must act in good faith inpursuance or supposed pursuance of a regulation or provision.It is only then that immunity is conferred under Sections 9 and23 of the Public Security Ordinance. To take an example, if inpursuance of emergency regulation 19 (8), a member of thearmed forces uses more force than is necessary under the circum-stances in the removal of a person arrested and he does so in goodfaith, he is protected. Again, if in good faith he uses more forcethan is necessary while acting in pursuance of the provisions ofregulation 63, he is protected. But one would have to look in vainto discover an emergency regulation which empowers a person
YVIMALA RATH E, J.— Wijesuriya v. The Slate.
63
to shoot a prisoner held in custody. Premawathie Manamperi wasarrested by the police on the 16th April, 1971, and remained, inmy view, in police custody. If the accused questioned her, and ifthereafter they shot her with sub-machine guns, they certainly-did not do so in pursuance or supposed pursuance of anyemergency regulation or provision of the Public SecurityOrdinance. The learned trial Judge’s direction to the Jury regard-ing the applicability of Sections 8 and 9 of that Ordinance was,therefore, correct.
The next portion of the Judge’s charge which has beencriticized is the following passage : —
“ Although there is a state of emergency, it does not meanthat the ordinary law of the country is suspended. Theordinary law remains and that law may have been added toby various Emergency Regulations, but the civil law remains.I must also tell you that the normal law applies as much toevery citizen whether he be a private citizen or whether hebe a mobilised soldier ; everyone is bound by the ordinarylaw. ,It may be that the soldiers are armed and they can useforce, but that means they must use force according to theordinary law ; they cannot use indiscriminate force, but theordinary law gives a certain kind of protection to certainofficers who obey superiors’ orders, and that protection isgiven by virtue of Section 69 of the Penal Code.”
Mr. Chitty’s contention is that the ordinary civil law of theland was pro tanio suspended in this area where a civil war wasprevailing. The acts of the accused were “ acts done in time ofcombat in a threatened area during a time when what amountedto civil war prevailed.” The accused are therefore, not liable tobe dealt with under the civil law. I understood this argument tobe that there can arise certain situations under which the Civillaw stands suspended, and the armed forces called upon to estab-lish law and order will then not be subject to the civil law. Quiteapart from the facts of this case, which show that on the17th April there was no civil war raging in the area where the1st accused and his platoon were stationed, I wish to make myobservations on the broad proposition that where the publicsecurity is endangered the armed forces called upon to establishlaw and order will not be subject to the civil law.
The assumption of powers by military commanders for therestoration of order in the event of civil war or insurrection have,under certain systems of law, been termed Martial Law. Martiallaw has been described as being neither more nor less than the
04
WIMALARATNE, J.—Wijesuriya v. Tht Stott
will of the General who commands the Army ; and that in factit means no law at all. " Keir & Lawson ” has this observation tomake: —
“ In this sense, Martial Law owes its validity to Inter-national Law. It is unsafe to infer that because InternationalLaw allows such a power to a military commander,Municipal Law will in any circumstances permit the exerciseof corresponding powers by military authorities within therealm. ”■—Cases in Constitutional Law ” (5th Edition) page224.
In those systems of law where a state of Martial Law can comeinto existence, military authorities have a right not to beinterfered with durante hello. Even so, the courts have notrelinquished the right of adjudicating on the point as to whetheror not a state of civil war exists. Although the ratio decidendi inEx parte Marais1 (1902) A. C. 109 is that the ordinary courts,sitting in a martial law area where war was still raging, had nojurisdiction to interfere with the military, O’Conner, M. R. inEgan v. Macready’ (1921) 1 I.R., 265. said, “ The military autho-rity, like any other department of the State, is subject to theSupreme Court of the realm.” Dealing with the argument thatthe assumption of extra powers was necessary if the rebellionwas to be suppressed, he said :
“ The argument based on military necessity was pressedstrongly, and I fully recognise that in cases not touched byspecial legislation, it is not for the civil courts to decidewhether a military act was necessary or not.
That must be left for the military authority. But I thinkthat it should at least appear that there may have been thenecessity ”, at page 277.
Even in those cases where a state of martial law has been heldto exist, the degree to which the military may interfere withcivilians has been said to vary with the circumstances. The testhas always been whether interference was necessary in order toperform the duty of restoring and maintaining order. It has beensaid that the military authorities would be justified, for example,in ordering civilians to quit their homes or to render servicesprovided such orders are necessary for the restoration of order.It would, on occasions be justified even to shoot an offender ; forexample, an officer-in-charge of troops might justifiably order hismen to shoot anyone about to cut a cable with intent to assistthe enemy. In every case, the action taken has been judged bythe test of necessity.
(1902) A. O. 109.
11921) 1 I. R. 266.
WI11AL.ARATNE, J.—Wijeauriya v. The Slate
65
In our country special legislation, namely the Public SecurityOrdinance has been enacted vesting extra powers in the policeand armed forces. Emergency regulations can be made there-under in the interests of public security and for the preservationof public order and the suppression of mutiny, riot or civilcommotion. Besides the immunity conferred by Sections 9 and 23of that Ordinance and referred to earlier in this judgment therewill always be available to the police and armed forces suchdefences as “ obedience to the lawful orders of superiors ” underSection 69 of the Penal Code, “ justification ” under Section 72,and “ acts done in the exercise of the right of private defence ”under Section 89. But a wide and general plea such as “ an actdone in time of combat in the field during civil war ” is unknownto our law. I am therefore of the opinion that the learned trialjudge’s direction reproduced above is a correct direction on thelaw.
The Jury were directed by the trial Judge to decide whether,in fact, Colonel Nugawela did give orders to the 1st accused, asdeposed to by the two defence witnesses ; and if he did givesuch orders, whether Section 69 of the Penal Code affords protec-tion to the 1st accused. The Judge’s direction on this aspect ofthe case has also been criticized by learned Counsel for the1st accused-appellant. The Jury had before them the evidence ofLieutenant Wijeratne regarding the order of Nugawela given-on the 14th about the five prisoners from the Hambantota remandlock-up, and the evidence of Shiromani regarding the ordergiven on the 16th evening by Nugawela in his hearing to the1st accused to “bump off” prisoners. The Jury also had beforethem Nugawela’s denial that he gave orders at the initial brief-ings on the 11th and 12th to bump off prisoners. They wouldalso have been mindful of the fact that Nugawela was notcross-examined about the orders alleged to have been given byhim to Wijeratne on the 14th and to the 1st accused on the 16th.The Jury were correctly directed by the trial judge to applythe lesser burden of proof in deciding the question as to whetherNugawela did, in fact, give an order to the 1st accused to bumpoff prisoners or any order similar to that. If the Jury took theview that Nugawela did not give such an order one cannot saythat it was a wrong decision. But the learned judge directed theJury to consider the case also on the basis that he did give suchan order. If they believed that Nugawela did give such an order,the judge told the Jury that the accused had to prove, on abalance of probability, that he acted in good faith in carryingout what he considered to be a lawful order which he was boundto carry out. Mr. Chitty’s complaint, however, is that the whole
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WIMALARATNE, J.—Wijeauriya v. The Stale
tenor of the judge’s charge to the Jury was that an order toBhoot prisoners was obviously and manifestly illegal and thatthe learned Judge did not leave it open to the Jury to considerwhether such an order was, in fact, obviously and manifestlyillegal under the circumstances of this case. He criticizedparticularly the following passage in the summing up :
“ The main question is, in the circumstances in whichthe 1st accused was at that time, would he have known thatthe order was obviously and manifestly illegal and shouldnot have been carried out. This was an order to kill, tocommit murder. This was an order to kill prisoners and thiswas an order not given in conditions where there was anactual engagement with the enemy. ”
In dealing with this criticism, I may also refer to an incidentalcriticism that the only ground of illegality urged upon theJury was the proposition that an order to shoot prisoners isillegal because of the terms of an unspecified and unidentifiedGeneva Convention elicited during the cross-examination ofWijeratne. Wijeratne’s reply in answer to State Counsel’squestion, “ Why do you say that an order to kill prisoners wouldbe unlawful ? ” was “ Under the Geneva Convention, capturedprisoners cannot be done away with. ” There is, however, nosubstance in the complaint that the learned Judge commendedto the Jury this opinion of Lieutenant Wijeratne about theGeneva Convention. Although he did, in summarising theevidence of Wijeratne, refer to that evidence, he formulatedthe law concisely in these terms :
“ Would any reasonable man under the circumstancesin which the 1st accused was, if such an order was givento him, honestly believe that he is bound to carry it outbecause it is not obviously and manifestly illegal ? Or on theother hand, would an ordinary person in the circumstancesin which the 1st accused was, if such an order was given,at once have seen that this was an obviously andmanifestly illegal order and should not be carried out. Ifit is the first conclusion that you come to, then, of course,the 1st accused is protected. If however, you come to thelatter conclusion, then the 1st accused is not protected. ”
In dealing with the defence set up by the accused underSection 69, the learned Judge also dealt with three types ofsituations with which a soldier may be confronted when he said :“ If you fire lawfully into a crowd and if it is done lawfully, thenyou commit no offence. Supposing the crowd is so violent, armedwith deadly weapons and they come forward for an attack, under
WTMAJLARATNE, J.— Wijeauiiyav. The Slate
67
those circumstances if you fire at the mob, you commit no
offenceIf there is a mob which is not violent, which
probably has no weapons, and which is not restive, and thesuperior officer tells a soldier to fire and the soldier fires at themob, the order itself was not strictly lawful because an ordercannot be given to fire at a mob which is quiet, and in thosecircumstances, the soldier, of course, acts on the order of his
superior. In such a case, the soldier is protectedIf,
however, an order is obviously and manifestly illegal accordingto the ordinary law of the land, it is the duty of the soldierto refuse to carry out such an order. ” This passage againdemonstrates that the Judge left to the Jury the decision of thequestion as to whether the order given by Nugawela, if givenat all, was lawful or not.
In dealing with these three situations, the learned Judgebesides directing the Jury on the law, also read out certainpassages from a Judgment and from two Commentaries on theIndian Penal Code. This procedure is criticized as an extra-ordinary deviation from practice and procedure “ into adisorderly channel ” resulting in confusion in the minds of theJury. What had happened at the trial was this:—LearnedCounsel for the defence had read to the Jury, in the course ofhis address, passages from a judgment in the South Africancase of Smith to illustrate under what circumstances a subordi-nate soldier acting under the command of his superior wasprotected. When it came to his turn to address, learned StateCounsel also read certain passages from two well knownCommentaries on the Indian Penal Code and from the Manualof Military Law. The learned Judge, in his charge to the Jury,himself read out the same passages “ in order to refresh yourmemory ”, as he put it. There could, in my view, be no seriousobjection to this procedure, provided the Judge himself laysdown and explains the law with certainty. That he has donein the present case ; and there is, in my view, no material in thecomplaint that the accused have been deprived of the protectionwhich the law gives them of having the law applicable to thecase laid down with certainty and precision by the Judge himself.
The omission by the trial Judge to refer in name orsubstance to the Army Act has also been commented upon.The argument is that a soldier can be executed under the ArmyAct for refusing to carry out an order of a superior officer. Onthe other hand, it would be extremely difficult to decide whoman armed soldier can shoot in time of combat, without himselfrunning the risk of being charged with murder. Our attentionhas thus been drawn to the awkward and unhappy position inwhich a soldier can sometimes be placed. A reading of Section 100
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Dias v. The Queen
of the Army Act (Cap. 357), however, makes it abundantly clearthat it is not every disobedience to a superior’s orders that ispenalised by the Army Act. It is only disobedience to a lawfulcommand that is punishable. There is therefore no foundationfor Mr. Chi tty’s fears about the “ unhappy lot ” of members ofthe armed forces.
Mr. Coomaraswamy for the 2nd accused-appellant attempted todraw a distinction in the case of the 2nd accused on the groundthat he carried out the orders of his superior, the 1st accused,who was present at the scene. Although in his case there was anadmission that he acted on the orders of his superior, the sameconsiderations regarding the defence under Section 69 appliesto his case as well. The fact that the 1st accused was presentat the scene does not in my view mitigate the seriousness of theoffence committed by him.
I would dismiss the appeals of both accused-appellants, andaffirm the convictions and sentences.
Convictions affirmed by the whole Court.Sentences also affirmed by the majority of the Court, without
any reduction.