Senaka Weeraratna Attorney at Law

On June 4, 1921, the legal doctrine of superior orders was invoked during the German Military Trials that took place after World War I: One of the most famous of these trials was the case of Lieutenant Karl Neumann, who was a U-boat captain accused of the sinking of the hospital ship the Dover Castle. He frankly admitted to having sunk the ship, but he qualified it by saying that he had done so on the basis of orders given to him by the German Admiralty and so therefore he could not be held personally liable for his actions. The Reichsgericht, then Germany’s supreme court, acquitted him, accepting the defense of superior orders as a grounds to avoid criminal liability. That very court had this to say in the matter of superior orders:

… that all civilized nations recognize the principle that a subordinate is covered by the orders of his superiors.

The superior orders defense is still used with the following rationale in the following scenario: An “order” may come from one’s superior at the level of national law. But according to Nuremberg Principle IV, such an order is sometimes “unlawful” according to international law. Such an “unlawful order” presents a legal dilemma from which there is no legal escape: On one hand, a person who refuses such an unlawful order faces the possibility of legal punishment at the national level for refusing orders. On the other hand, a person who accepts such an unlawful order faces the possibility of legal punishment at the international level (e.g. Nuremberg Trials) for committing unlawful acts.

Nuremberg Principle II responds to that dilemma by stating: “The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

The above scenario might present a legal dilemma, but Nuremberg Principle IV speaks of “a moral choice” as being just as important as “legal” decisions: It states: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him”.
In “moral choices” or ethical dilemmas an ethical decision is often made by appealing to a “higher ethic” such as ethics in religion or secular ethics.”

https://en.wikipedia.org/wiki/Superior_orders

In the case involving Lalith Weeratunga and Anusha Palpita, the application of moral choice would be having to choose between serving the interests of the Buddha Sasana under Article 9 of the Constitution which is a mandatory duty imposed on all public servants (irrespective of religion) and not serve the Buddha Sasana and thereby violate the Constitution.

The duty imposed by the Constitution of Sri Lanka under Article 9 is an inviolable duty and supersedes all other obligations or rules set out under ordinary municipal law or international law.

Presidential Pardon

A Presidential Pardon should be given because of the special nature of the case. These two ‘ convicts’ carried out an Order that was issued directly by a sitting President, and which he (Mahinda Rajapakse ) is now admitting he has done in his capacity as President. If the issue is that of committing a wrong while in office, then the party who issued the Order while in Office should also have been enjoined as a co -accused. That was not done. Convicting those who executed the Order while allowing those who issued the ‘ illegal ‘ order to go scot free without any liability attached is tantamount to a travesty of justice. It is a miscarriage of justice; an act of the legal system that is an insult to the system of justice.

The defence of following orders is a valid defense, though it failed at Nuremberg because the orders to kill innocent people, both Jews and non – Jews, were stricto sensu immoral. There is no question of immorality in distributing ‘ Sil Reddi ‘ to the Buddhist public. Article 9 of the Constitution clearly specifies and gives a mandate to the State to give foremost place to Buddhism. Article 9 is not meant to be treated like a white elephant. It is a living provision and embeds a 2300 year tradition of requirement on the part of the State to serve the Buddha Sasana. All our past rulers before the colonial era served the cause of Buddhism as one of their primary obligations. The motive is irrelevant when performing a service to the Buddhist public. Only the incumbent President can undo the damage done to a public servant for carrying out an Order of a President, by releasing him from Prison through a Presidential Pardon.

Public service decision making unsettled

This Court decision unsettles the entire public service. Any direction given by a Cabinet Minister or even the President himself is now open to a protracted and unnecessarily time consuming evaluation by a subordinate public servant (s) ‘ Should I follow the direction or not’ and risk punishment for insubordination even if he delays in trying to work out a skin saving solution. Indiscipline will grow in the public service because now freedom is given ( by virtue of this Court Order) for public servants to reject Orders from above if they in their discretion find a directive unpalatable. The ultimate losers will be the public but can they complain? In any society the people get the leaders they deserve.

Senaka Weeraratna

Attorney at Law