Culpability of public servants acting under orders
As a retired public servant, I empathise with some of my former
colleagues in the Public Service against whom action is being taken for
acts committed under superior orders.
But I do not take up cudgels for those being dealt with for illegal
acts of commission or omission taken on their own for personal interest.
Indictments made on action taken under superior orders fall under a
separate category and places their cases under the Nuremberg Principle:
“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.”
The
legal defence to this charge is that the defendant was ‘only following
orders’ and is therefore not responsible for his or her crimes. This
defence was put up in the matter of Lieutenant Karl Neumann, a captain
responsible for the sinking of a hospital ship. Even though Neumann
admitted to having sunk the ship, he said he had done so on the orders
given to him by the Admiralty and for that reason, he could not be held
liable for his actions. Germany’s Supreme Court acquitted him, accepting
the defence of superior orders as a grounds to escape criminal
liability. Declaring, “... that all civilized nations recognise the
principle that a subordinate is covered by the orders of his superiors.”
More recently, Article 33, titled ‘Superior orders and prescription
of law’ of the Rome Statute agreed upon in 1998, as the foundational
document of the International Criminal Court states:
“ The fact that a crime within the jurisdiction of the Court has been
committed by a person pursuant to an order of a Government or of a
superior, whether military or civilian, shall not relieve that person of
criminal responsibility unless:
* The person was under a legal obligation to obey orders of the
Government or the superior in question;
* The person did not know that the order was unlawful; and
* The order was not manifestly unlawful.
Both the Nuremburg Principle and the Rome Statute impliedly accept
that a person acting under superior orders was covered by such orders,
provided that
1. A moral choice was in fact possible to him.
2. The person did not know that the order was unlawful
3. The order was not manifestly unlawful
The question is whether a ‘moral choice’ was possible for a person
acting under the circumstances in which the above public servants
acted.What remedy did they have even if the order was ‘unlawful’ or
‘manifestly unlawful’ if they were acting underorders of the President?
Article 35. (1)Of the Constitution states, “While any person holds
office as President, no proceedings shall he instituted or continued
against him in any court or tribunal in respect of anything done or
omitted to be done by him either in his official or private capacity”.
This immunity shuts out the officers concerned from all tribunals to
which they could normally appeal for redress.
That leaves a Hobson’s choice in their hands unless they were
prepared to sacrifice their jobs in midstream. As a public servant who
had to lose his employment thrice in his carreer, I can vouch for the
shocking privations, humiliations and deprivations that such a premature
termination of a man’s source of livelihood could bring upon him and his
family.
Can any civilised legal system, obliged to recognise the fundamental
right to employment and job security, impugn a decision to comply with
erratic superior orders, regardless of ‘moral choice’ to quit and the
question whether the act was ‘unlawful’ or ‘manifestly unlawful’, in
view of the background in which the said public servants have acted?
Application of positive law to such real life situations calls for a
deep appreciation of the compulsions of normal human behaviour.
“Even where the orders were manifestly unlawful, the defence of
obedience to superior orders and the peace officer defence will be
available in those circumstances where the accused had no moral choice
as to whether to follow the orders.
There can be no moral choice where there was such an air of
compulsion and threat to the accused that he or she had no alternative
but to obey the order” (R v. Finta [1994] 1 SCR [701], Supreme Court of
Canada)
- Somapala Gunadheera |