The arrest of opposition presidential candidate Sarath Fonseka : Military Tribunal vs the Due Process?

By Dr. Siri Gamage
University of New England, Australia

(February 10, Melbourne, Sri Lanka Guardian) Post -Presidential election developments in Sri Lanka keep generating international news, not for the good name of the country-but for the wrong reasons. The arrest of General (retired) Fonseka who contested the Presidential elections a couple of weeks ago securing millions of votes have added to this atmosphere. Not only the manner of his arrest but also the purported grounds have been widely criticised in the media in a short space of time. Fonseka's grieving family has come out with appeals for his safety. Even the Mahanayake of Malwatte chapter has deemed it necessary to speak out against the arrest. Political commentators have started to comment on the event and with each passing day more and more international attention is being focused on this latest development.

When a government and its law enforcement agencies are making a charge against any civilian -irrespective of his/her status- there is a due process to be followed in civilised countries -whether they are democratic, semi-democratic or even pseudo monarchical. A person is normally not guilty of any charge until proven guilty. Thus during the period when a person who is supposed to have done something wrong is held in custody, that person ought to be treated with dignity. The fact that someone is arrested doesn't mean the person relinquishes his/her human rights as an individual, citizen,man or woman. The due process involves fairness of the process of arrest, detention, prosecution, availability of legal services to the prosecuted, and the application of relevant rules and regulations fairly in assessing the offence and determining the punishment. In the case of Fonseka case, many questions arise not only about the 'process' but also the 'fairness' in applying the law in order to be able to judge whether an offence has been committed or not.

To begin with, the charges against him as reported in the media (e.g. The Asian Tribune) relate to the period when he served in the army as its commander and later as the Chief of Defence Forces. Before the Presidential elections he resigned from the last substantial post he held in defence establishment and became a civilian and contested the elections as the common candidate of the opposition parties. Thus a lot of water has passed under the bridge since his last defence post. The question arising here is why he is to be charged only now for offences that he supposedly have committed during the time of his active service in the defence establishment? Did the government know about these offences then or has such knowledge come to light just before the general elections? Even if the government came to know about these offences recently, is it fair to charge a person of Fonseka's stature after the event in a military tribunal? The issue of his being charged in a military tribunal when he is no more a serving military officer is a fundamental one that will attract national and international attention in coming weeks -most likely in a critical manner. Undoubtedly, legal opinion will come out against such a decision. If the government continues with this line of argument to try the retired general in a military tribunal when he is no more active in the service will, in my opinion, be an untenable proposition -not only in the context of the national legal system but also in the international interpretations of the military law and civilian law. The case will be highlighted in the national and international fora as a case of unfair treatment of a person of Fonseka's stature and the government will attract unnecessary negative criticism. This is something that the newly re-elected President or his government does not need in the aftermath of the conclusion of the war and re-emerging Tamil reactions from the Diaspora. While this may be convenient politics, especially in light of the looming general elections, such acts can reverberate in the minds of fair-minded people all around the world as an example of very bad governance. Fonseka will receive more and more media coverage, sympathy and his name will be known widely as a wrongly persecuted politician cum civilian. Even if we adopt a Buddhist perspective on this episode, we need to remind the Buddha's saying that 'a wrong action cannot be corrected by adopting another wrong action'.

On the other hand, there may very well be sufficient legal grounds in the hands of the law enforcement agencies to bring charges against Fonseka if he has engaged in any unlawful acts. If we look at a charge like plotting to kill the family of the President, it is a serious matter that needs to be not only investigated thoroughly but also prosecuted in a relevant court of law following Sri Lanka's legal procedures. It is here that the government in fact can prove his innocence or otherwise as the public seems to understand the due process through civilian courts rather than military tribunals, which are, supposed to be closed-door events(also not commonly known in the country). Since Fonseka became a public and political personality any charges against him have to be brought before an appropriate civilian court while providing him with the necessary legal and other support for his own defence. His fundamental rights as a civilian have to be respected at all cost.

On the contrary, if he is tried before a military tribunal and sentenced, it is creating a dangerous precedent in a country where since independence civilian rule dominated. I say this because in future other governments also can stipulate similar mechanisms to prosecute those who may work against the interests of the state or ruling party. This can then lead to a vicious cycle. Such mechanisms were at play when former President Sulficar Ali Bhutto was hanged some decades ago in Pakistan. As a young undergraduate, I used to grieve his death -irrespective of the rights or wrongs he may have done because during my growing up years he was considered as a hero in South Asian politics. To many non-Tamil Sri Lankans, Fonseka is a hero.

Fonseka's arrest cannot be understood or interpreted without looking at other contextual factors involved in the politics of war and the electoral cycle. The international charges about the war crimes and his willingness to give evidence if required seemed to be a critical factor for the timing of his arrest. If the government thought that the opposition could be silenced or paralysed by this arrest, it seems to be a miscalculation to say the least because th sympathy for Fonseka that may be generated as a result of his arrest could overshadow any lethargy in the opposition camp post-election. Furthermore, there is the possibility of many members of civil society organisations who supported the President 'feel vulnerable' and 'insecure' in a country where military rule is applied to a civilian post-facto. These kinds of actions remind people of the days of Marshall law rather than normal times. One may even argue that Sri Lanka is still run by emergency laws where the rights of civilians are superseded by the requirements of the state -hence the civilian vulnerabilities imposed for a war period are continuing to haunt the populace. When the powers of an all powerful President is added to this equation, one can understand why many writers are saying that there are no citizens in Sri Lanka -only rulers!

If Fonseka has done anything wrong he should be charged in a civilian court and due process applied to make him face such charges. That is the right thing to do by a responsible government. The process has to be transparent, fair, and just. If he is charged in a Kangaroo court and prosecuted, the healing process that Sri Lanka desperately needs will be stifled and further conflict may dawn on the country-quite unnecessarily. The rule of law has to return to the country if it is to progress as a united nation -not the other way around!