The recent questioning of some representatives of several well known human rights organisations in Sri Lanka about a pamphlet which called for the ending of impunity regarding disappearances raises many serious questions. The questioning is based on the assumption that the publication amounted to an act that demoralised the armed forces. Emergency regulations have created an offence of any act causing demoralisation of the armed forces. Therefore, a discussion on the meaning of the demoralisation of the armed forces is necessary. On the other hand, whether calling for the ending of impunity regarding disappearances falls within the category of an offence is also appropriate.
Demoralisation of the armed forces
‘Demoralisation’ means to deprive a person of spirit, courage and discipline; to throw into disorder or confusion or bewilderment; to corrupt or undermine the morale of a person; to discourage, to dispirit, to upset and destroy the normal functioning of a person or institution.
All such effects on a person or an organisation can be measured only the basis of the expected behaviour from a person or an organisation. The expected behaviour is based on shared values. Shared values are usually formulated by the framework of the law within a given society. Thus, what may or may not constitute demoralisation cannot be separated from the shared values of a society and the law of a particular nation.
It is a shared value of any civilised nation to condemn arbitrary deprivation of life or liberty. It is also the law in Sri Lanka that life and liberty cannot be deprived in an arbitrary manner by any person and by any agency of the state. The state itself is grounded on the shared values of a society and its law.
It is also a shared value and an accepted principle of law that those who violate shared values articulated through law be subjected to punishment through a due process of law. Those acts which amount to violations of shared values articulated through the law are normally defined as crimes. Thus, those who commit murder, rape, robbery or any other act by which a crime is committed are considered deserving of punishment through the due process of law.
If a person accused of a crime claims that such accusation is aimed at demoralising him, such a claim would naturally be seen both as misguided and comic. A society must discourage criminal actions and dispirit and upset those who engage in acts which amount to crimes. The punishment of persons for crimes is meant to discourage the commission of acts which are seen as crimes. Therefore, it is one of the most legitimate duties of any society to engage in the discouragement of criminal activity by individuals or by agencies of the state. To claim that any attempt to uphold shared values and the law against criminals who violate them as acts demoralising such persons or agencies would be an absurdity.
The next issue is to the relevance of disappearances in a discussion on shared values and the law. The causing of a disappearance is an act that is abhorrent to the shared values of any civilised society. In many countries there is also legislation that defines disappearances as among the most heinous of crimes. In Sri Lanka no such legislation has been passed as yet. However, arbitrary deprivation of life is recognised in the law and the law also recognises the rights of a person after arrest. An individual who causes a disappearance, which is the arbitrary deprivation of the life of another, would be treated in a court of law as having committed a crime. The fact that such a person may belong to an agency of the state will not be a valid defence for the commission of such a crime. In fact, it would be an aggravating circumstance as a person acting on behalf of the state is expected to work within the framework of law in carrying out his duties. It can never be a duty of an officer of the state to commit a disappearance.
Therefore the initial issue to be considered is the very absurdity of the accusation of an act demoralising the armed forces against any citizen who calls for the ending of impunity regarding disappearances. Such a call only amounts to a demand for the upholding of the shared values of a society and the law.
When citizens’ call for the upholding of shared values and the law they are, in fact, trying to uphold the morale of society and also of all the agencies of the state. Any individual or state agency that does acts which violates the shared values of a society and the law disturbs the morale of society. Such acts done by individuals in their private capacity or while representing a state agency discourages society as a whole and also dispirits, upsets and destroys the normal functioning of that society. They wound the conscience of their society and the shared values are upset by the causing of such acts.
If the citizen that calls for the upholding of shared values and the law is to be punished, that reflects a complete reversal of the norms of a society, it inverts the framework within which any civilised discourse can take place. When alleged criminals can claim that upholding of shared values and the law amounts to reprehensible actions then the very normative framework of society is challenged.
It is worse if the state’s criminal investigation branches are directed against individuals or organisations who attempt to uphold shared values and the law. The criminal investigation branches of the state are obligated to investigate those who are breaking the law. Therefore, the duty of the criminal investigation branches is to investigate those who engage in arbitrary deprivation of life by way of causing disappearances. Whether those who have alleged to have committed disappearances are private individuals or state agencies should not make any difference to such criminal investigation branches. In fact, as the shared values of a society and the law makes higher demands of discipline on the part of agencies that represent the state there would be a greater obligation on the part of the criminal investigation branches of the state to investigate the alleged offenders.
If the criminal investigation branch turns it attention to the citizens who call for legal action against the alleged suspects of disappearances then the very meaning of the criminal investigations within the state undergoes a process of reversal and inversion. When complainants of crimes and those who support the complainants are treated as criminals all the shared values of a society are turned upside down. If this happens regarding all crimes such as murder, rape, robbery, corruption, fraud and the like it would amount to the very reversal of the civilised norms of a society.
Therefore, this ‘investigation’ by the Criminal Investigation Division, allegedly on ‘orders from above’ should be disturbing to anyone who believes in shared values and the law as the basis of Sri Lankan society. This should be so fundamentally disturbing so as to warrant serious reflection and action to review not only this particular case but also what is going on within Sri Lanka in terms of shared values and the law.
For further information please see the following:
[AHRC Open Letter] SRI LANKA: Illegal inquiries conducted by Colombo Criminal Division (CCD) and the National Investigation Bureau (NIB) against four reputed human rights organisations in Sri Lanka at: http://www.ahrchk.net/statements/mainfile.php/2008statements/1619/
SRI LANKA: Outlawing discussion on forced disappearances at: http://www.ahrchk.net/statements/mainfile.php/2008statements/1623/
