It’s not yet too late to react before the country gets dragged in to a future political and economic disaster, for Sri Lankan and the International Community.By Mano Banduwardena
(March 30, Colombo, Sri Lanka Guardian) After nearly two months of animosity fallowing the presidential election and the arrest of General Fonseka by the Rajapakse government, the political situation in Sri Lanka is getting worse every day.
Sri Lanka’s Minister of Human Rights, Mr. Mahinda Samarasingha, stated that the government categorically denied any international monitoring panel. The election commissioner Mr. Dayanada Dissanayake, for upcoming elections in April, confirmed this.
Harassment and violance have been directed towards individuals suspected of being engaged in Media diffusing authentic information. Supporters of General Sarath Fonseka, who’s now arrested and detained in a Naval Camp in Colombo, have suffered the same treatment. Recently attacked and wounding several people of independent media such as in ‘Sirasa’ Mahraja building is another example of using illegitimate force.
There is still no news of journalist Prageeth Eknaliyagoda of 'LankaEnews', who opposed the government, and disappeared 2 days before the election. Mr. Ruwan Weerakone, a recently arrested defense correspondent by the Terrorist Investigation Division, has allegedly conspired connecting two politicians through the telephone to General Fonseka. He has rejected all accusations against him despite constant harassments while his admittance in a hospital for heart treatments.
President Rajapakse and his brother, secretary of defense Gotabaya Rajapakse, in a serious misuse of executive power have illegally arrested the country’s only four star General Sarath Fonseka and are now enacting a court martial against him under military act. General Fonseka who Participated in the presidential election against incumbent president Rajapakse, is the leader of his party Democratic National Alliance (DNA) and a frontrunner in the parliamentary elections to be held April 8,2010.
The trial under military act against retired General Fonseka is illegal according to the country’s constitution and international law. This fact of human rights has been established, and backed by UN’s Secretary General Mr. Ban Ki-Moon and other important figures from other countries and as well as local intellectuals.
Sri Lanka’s former Chief Justice Mr. Sarath N Silva stated;“He would like to ask the President of this country why no military action was taken regarding Gen. Sarath Fonseka while he was contesting the presidential election says former Chief Justice Sarath N. Silva. He wants to know from the President whether the military act was not relevant to the General during that period. During the presidential election the talk about a military tribunal did not come up and it is evident that the military tribunal has been activated after the presidential election and Gen. Sarath Fonseka is being kept under detention to take revenge from him”.
Speaking at a press conference, former Chief Justice said, “We are meeting here today to explain matters that have come up in our country at present. As you all know all arrangements are being taken to bring Gen. Sarath Fonseka before a military tribunal. We should first clarify matters. Gen. Sarath Fonseka came forward to contest the presidential election.
Later, he publicly challenged the results. Within 12 days of this he was arrested. The arrest was carried out in an illegal manner. There is a process of arresting a person by police officers under civil law. This has not taken place here. Also, he should have been brought before a court of law. Nothing of these has been followed and he is being illegally detained. Now they are taking steps to bring him before a military tribunal. This is against the law. The prime law of this country is the Constitution. Among fundamental rights the right to life, liberty and security of person come first.
These Human Rights which assure liberty and freedom from arbitrary and illegal arrest stem from the Magna Carta (Ch 39) decreed in England in the year 1215; Declaration of the Rights of Man (paragraph VII) made by the National Assembly of France in 1792 in the aftermath of the French Revolution and the Fifth (1791) and the Fourteenth (1868) Amendments to the Constitution of the United States of America. Our Constitution of 1978 has substantially incorporated the content of Article 9 of the Universal Declaration and the ICCPR and guaranteed by Article 13 the freedom from arbitrary arrest and detention. It is pertinent to note here that Sri Lanka having acceded to the ICCPR in 1980 is obliged in terms of Article 40 to report on the measures taken to give effect to the rights recognized in the Covenant. Since there were complaints of non-compliance, the ICCPR Act No 56 of 2007 was enacted by Parliament to give effect to certain Articles of the ICCPR.
Thereafter, an opinion was sought by the President from the Supreme Court as to compliance by Sri Lanka and the positive opinion given by the bench of 5 Judges presided by me was submitted to the European Union to avert a suspension of the GSP+ facility in 2008. It appears that this position has now reversed and the EU is suspending the GSP+ facility. Be that as it may the Fundamental Rights as contained in Article 13(1) and (2) of our Constitution which guarantee freedom from arbitrary arrest and detention read as follows; Article 9 of the ICCPR provides that;
1. Everyone has the right to liberty and security of person and no one shall be subjected to arbitrary arrest or detention and the deprivation of liberty shall be only on grounds and that in accordance with the procedure established by law;
2. Anyone arrested shall be informed at the time of arrest the reasons for his arrest and promptly informed of any charges against him and be brought before a judge or an officer authorized by law to exercise judicial power who will decide on the question of release or continued detention of such person. The procedure established by our law for the arrest and detention of a person reasonably suspected of having committed any offence is contained in the Code of Criminal Procedure Code Act No 15 of 1979.
The very clear sequence of provisions in Section 109 of the Code lay down the procedure for the investigation of an offence leading to the arrest of the suspected offender. Section 32 states the manner of making an arrest and Section 37 provides that any person arrested and held in custody shall be produced before a Magistrate within 24 hours.
The purported arrest and detention of General Sarath Fonseka, the unsuccessful candidate at the Presidential Election, who has challenged in Court the validity of the result of the elections and the manner in which the counting of votes was done, within a period of 12 days of the Election, has been done manifestly contrary to the Fundamental Rights guaranteed by Article 13(1) and 13(2) of the Constitution and the Human Rights recognized and agreed to by the Government of Sri Lanka as contained in Article 9 of the Universal Declaration and the ICCPR. The procedure followed in the purported arrest and continued detention is contrary to the provisions of the Code of Criminal Procedure Act. The person who purported to make the arrest is not an officer authorized to do so under the Code and the General has now been continuously held in custody for a period of over one month without being produced before a Judge or a competent Court as required by Article 13(2) of the Constitution, Article 9(3) of the ICCPR and Section 37 of the Code. The government claims that the arrest of the retired 4 star General was done and he is detained in terms of the Army Act (Ch. 625).
The Army Act was enacted by Parliament in 1949 soon after gaining independence for the purpose of forming and maintaining an Army for Ceylon as the country was then known. The only explicit provision in the Army Act which authorizes an arrest is contained in Section 150 which relates to deserters and absentees without leave. A police officer or in the absence of a police officer, an officer or soldier of the Army is authorized to arrest a deserter or absentee without leave and to forthwith produce such person before a Magistrates Court. Then there is provision for the hearing of evidence by the Magistrates Court and further orders being made. It is clear that the retired 4 star General has not had the benefit of procedural safeguards applicable in relation to a deserter or absentee without leave.
A broad provision as to persons liable to be taken to military custody is contained in Section 35 of the Army Act, which provides that “a person subject to Military Law who commits any military or civil offence may be taken into military custody”. Section 57 extends the application of Section 35 to a period even after the person ceases to be subject to military law but in respect of offences committed whilst he was subject to military law. Hence the principal issue to be considered before one gets into the realm of offences, charges and so on, is whether General Sarath Fonseka was ‘ a person subject to military law’ when he functioned as the Commander of the Army and later as the Chief of Defense Staff. a. There is no complexity in deciding this issue since Part VII of the Act is itself titled “Persons subject to Military Law”. Section 34 of this Part states that for the purposes of the Act, ‘a person subject to military law’ means a person who belongs to any of the following classes of persons:- “All officers and soldiers of the Regular Force”; b. “All such officers and soldiers of the Regular Reserve, Volunteer Force….”
The term ‘officer’ is defined in Section 162 to mean ‘an officer commissioned as an officer of the army” Part II of the Act is titled “Officers” and contains provisions commencing from Section 9 which deals with the commissioning officers to Section 12 as to the promotion and transfer of officers. Part III of the Act is titled “Soldiers” and has provisions regarding their enlistment. It is manifestly clear that the Commander of the Army is neither a commissioned officer nor an enlisted soldier. The appointment of the Commander is provided for in Part I of the Act titled “Organization of the Army”. Section 8 of Part I of the Act provides that the President shall appoint “a fit and proper person to command the army” and when so appointed that person shall be designated Commander of the Army. Hence one need not even be a commissioned officer to be appointed to command the army. Even after appointment the Act does not describe him as an officer. But, specifically states that the person appointed shall be designated Commander of the Army. Hence the Commander of the Army is not a person subject to military law in terms of the Army Act.
There are three types of Courts Martial provided for in the Act viz. a general court martial; a field general court martial and a district court martial. It is specifically stated in Sections 46 (2), 49 (1) and 51 (1) that any of these Courts Martial may try only a ‘person subject to military law’. Hence there would be no question of the Commander of the Army being brought up before any of the Courts Martial for trial of any military offence. Even the two sections referred to above that authorize the taking into custody of any person viz. Section 35 (whist in service) and Section 57 (1) (after ceasing to be in service) specifically state that they apply to situations in which a person subject to military law commits an offence. General Sarath Fonseka relinquished the position of the Commander of the Army in July 2009 and was appointed Chief of Defense Staff in terms of Act No 35 of 2009. Section 2 (3) of the Act provides that when the Commander of any force relinquishes his position to assume the post of CDS during the period he holds such post he shall deemed to continue as a member of the regular force to which he belongs.
This deeming provision does not go so far as to state that during such period this person would be subject to the Army Act or be subject to military law. The Commander of the Army who was not subject to military law when he held office cannot by any stretch of imagination be considered as being so liable after he relinquished such office. The conclusion to be drawn that the Commander of the Army is not a person subject to military and as such cannot be taken into custody, detained or tried by a Court Martial under the Army Act is consistent with the scheme of the Act itself. Sections 35 and 57 referred to above state that a person subject to military law who commits any offence may be taken into military custody.
However, these sections do not provide for the procedure by which such person may be taken into custody. Such procedure is laid down in Section 36 (1) which states that “a senior officer may order into military custody a junior officer”. The only instance where a junior officer may order into custody a senior officer is where such officer is engaged in a quarrel, affray or disorder. The Commander is the highest ranking officer and as such there would be no officer senior to him who could order that the Commander be taken into custody. Similarly after a person subject to military law is taken into custody in terms of Section 40 only the ‘commanding officer of that person’ is empowered to investigate the charge against him and to take steps for a trial by Court Martial. There is no officer who could be “commanding”, the Commander himself. As such it is inconceivable and, inconsistent with scheme of the Act to assume that the Commander of the Army is a person subject to military law as defined in the Act who may be taken into military custody, detained, charged, tried and sentenced at a Court Martial. It would be preposterous to suggest that the Commander who is thus not liable whist in service becomes a person subject to military law and thereby becomes liable to be taken into military custody, detained, tried and sentenced by a Court Martial after he relinquished office. In any event the present Commander has never been a senior officer to the General and as such he cannot in terms of Section 36 (1) “order into military custody” the General considering the latter as a ‘junior officer’.
Furthermore the present Commander has never been the ‘commanding officer’ of the General, as such he is not empowered in terms of Section 40(1) of the Act to cause an investigation against the General or to ‘take steps for the trial of that person (the General) by a Court Martial’ as provided in Section 40 (1) (b) (i) of the Act. The position under the CDS Act No 35 of 2009 is no different. As noted before although the Act deems the General to be a member of the regular force of the Army whilst serving as CDS, he is not deemed to be ‘a person subject to military law’ under the Army Act. In any event the present Commander cannot be considered a ‘senior officer’ or the ‘commanding officer’ of Sarath Fonseka in the period the latter functioned as CDS since in terms of Section 2 (4) of the Act whilst serving as CDS he held the rank of General. Viewed from a different perspective, the Army Act was existing law when the present Constitution was promulgated in 1978. It continued in force in terms of Article 168 (1) of the Constitution. However such continuation in force is subject to any express provision in the Constitution. In brief, it is a basic principle of interpretation that the Constitution being the superior law should prevail over ordinary laws.
Therefore the Fundamental Rights guaranteed by Article 13 (based on the Universal Declaration and the ICCPR as noted above) which relate to arrest, detention trial and punishment, will prevail over the Army Act. These Fundamental Rights may be restricted in their operation to the members of the Armed Force only in the manner provided by Article 15 (8) of the Constitution which reads as follows; 15 (8). “The exercise and operation of the fundamental rights declared and recognized by Article 12 (1), 13 and 14 shall, in their application to the members of the Armed Forces, Police Force and other Forces charged with the maintenance of public order, be subject to such restrictions as may be prescribed by law in the interest of the proper discharge of their duties and the maintenance of discipline among them.” It is clear from this provision that if General Sarath Fonseka’s Fundamental Rights guaranteed by Article 13 of the Constitution assuring him the freedom from arbitrary arrest, detention, punishment, etc. is to be restricted upon any purported exercise of power under the Army Act, at the time of such ‘arrest’ he should have been;
1. A member of the Army
2. He should have been charged with the maintenance of public order
3. The arrest should have been necessary to assure the proper discharge of his duties as a member of the Army
4. Necessary to maintain discipline in the Army.
I do not wish to labour the point but none of the conditions as laid down in Article 15 (8) to warrant a restriction of the Fundamental Rights guaranteed by Article 13 are met in relation to the purported arrest and detention of General Sarath Fonseka. In conclusion I wish to state that from whatever perspective one may look at the matter – the Constitution; the Universal Declaration; the ICCPR; the Code of Criminal Procedure Act; the Army Act or the CDS Act; the purported arrest and continued detention of General Sarath Fonseka who is now a candidate nominated for the Parliamentary Elections is entirely contrary to law and justice.
Sri Lanka’s most respectable, eminent lawyer Elmore M. Perera challenged Election Commissioner Mr. Dissanayaka regarding the past presidential elections; “where and with whom, you were in night of Presidential election day?”
An open letter from Mr.Elmore Perera addressed to Election Commissionaire;
Dear Dayananda,
A Free and Fair Election – An impossible dream?
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We, the People have a Sovereign right to exercise our franchise at free and fair elections. The very last time we could do so was in 1977. Giving vent to our disgust with the governance then prevailing, we gave J.R. Jayawardena, who claimed to be the long-awaited saviour of the Sri Lankan nation, a 5/6th majority. Free and fair elections were soon relegated to history. The election process rapidly degenerated to the level of the notorious Wayamba Provincial Council election in 1999.
In an attempt to stem this ominous trend, the OPA beginning in 1994, attempted to monitor elections. At the end of a discussion some of us had with you re monitoring the 1999 Presidential election, you claimed to have been at the receiving end of my lectures in SLIDA. I immediately assumed (rightly or wrongly?) that you had endorsed the need for exemplary conduct I consistently tried to instil into those who chose to listen to what I said. In an attempt to reduce rigging at the Presidential election of 1999, you had affixed the now infamous “stickers” to Polling Cards. The potential abuse of such stickers was prevented by the accidental detection of this secret move of yours, by a VV.I.P. Consequent attempts made by a triumvirate of the most powerful personalities at that time, with the obvious connivance of a state agency, to sideline you and replicate the Wayamba election, were thwarted by justification of your bona fide and lawful, though admittedly futile and costly, act. However, you had not been vested with any power to control or even contain the violence and blatant violation of election laws that took place.
Disgusted with the mockery that passed off as “free and fair elections”, we the people, through our elected representatives in Parliament, adopted the 17th Amendment to the Constitution, drastically curtailing the extent of the Executive power of the Sovereign People which had been delegated to the President, and creating an Elections Commission of five members, endowed with extensive powers, for the sole purpose of restoring the conduct of free and fair elections.
The 17th Amendment, passed with only one abstention and no one against, became operative on 3rd October 2001, and provided the Elections Commission (EC) with sufficiently extensive powers, inter alia, to appoint other officers to the EC and delegate to them any power, duty or function of the EC, to notify the Inspector- General of Police of the facilities and the number of police officers required and then deploy them to secure the enforcement of all laws relating to the conduct of free and fair elections, to prohibit the misuse of any state property, and to enable the Competent Authority to take over the management of SLBC and SLRC in respect of all broadcasts which impinge on the election. Regrettably, no Elections Commission was constituted and consequently, in terms of Section 27(2) of the said Act, you were vested with all the extensive powers, duties and functions of the Election Commission. Your failure to exercise most of these powers culminated in your validating the 2005 Presidential election where about 500,000 electors in the South and almost all the electors in the North were unlawfully disenfranchised.
Rather than invoking the extensive powers vested in you, so as to promote the conduct of a free and fair 2010 Presidential election, you only requested the IGP to continue to deploy the police officers himself, in the manner indicated by you. Belatedly, you issued directions for the immediate removal of cut-outs (and even provided the funds needed for same) and the cancellation of certain transfers. However, such directions were disregarded with impunity. You had chosen not to take cognisance of the fact that this IGP had been appointed by the President in violation of the Constitution, and had even been vested with the powers of the National Police Commission, also in violation of the Constitution, and certainly had to display greater allegiance to the President who appointed him, and to the Defence Secretary to whom he reports, rather than obey your commendable directives, confident that you would, deliberately or otherwise, not exercise the extensive powers vested in you to ensure compliance with your directives.
The “directives” reportedly issued by you to Ministry Secretaries and others re the abuse of state resources were largely disregarded, in violation of the Constitutional requirement that “every person under whose control such property is, for the time being, is required to comply with and give effect to such directions”. You did nothing further. You appointed a Competent Authority to control the broadcasts of SLBC and SLRC. The issuance of comprehensive Guidelines and even Directives failed to have any significant effect on the SLBC and SLRC. Without invoking any of the powers vested in you to “secure the enforcement of your directives”, you frequently appeared on TV, and attempted to exculpate yourself from your betrayal of the trust placed in you, by repeatedly complaining that your many directives, inter alia, to the IGP, to all Secretaries and the Media and those of your Competent Authority were not being heeded, and that you were helpless. You merely revoked the appointment of the Competent Authority without enabling him to take over the management of SLBC and SLRC, in respect of all political broadcasts or any other broadcast, which impinges on the election, under Arts 104 B(5)(c) and Act No. 3 of 2002.
To cap it all you announced that a “Sticker” would be placed on each ballot box to signify that it had been duly “checked”, “closed” and “sealed”. The necessary implication was that any ballot box which carried this “sticker” must necessarily be presumed to have been duly checked, closed and sealed by the Senior Presiding Officer in the presence of the Candidates and/or their duly nominated agents. You cannot plead that you did not realise that this procedure lent itself to mass-scale non-verifiable corruption. A news report of ballot boxes having been transported in a Navy Vehicle was immediately suppressed.
We the People, looked up to you to honour the trust placed in you by us, through our elected Representatives, and to hold a free and fair election. You signally failed to invoke the extensive powers set out in Articles 104C and 104E, to notify the IGP of the facilities and Police Officers required, appoint competent, non-partisan retired officers (of whom there are many) to direct the deployment of the facilities and Police Officers made available by the IGP, so as to ensure a “free and fair election”.
At about 2.30 p.m. on January 26th 2010, a public announcement was made on several TV Channels that casting a vote for General Sarath Fonseka was of no value because his name was not included in the list of Electors and that, even if elected, he could not lawfully hold the post of President. On this being brought to your notice, you issued a written statement that General Sarath Fonseka was indeed, lawfully entitled to be elected and function as President. Soon after this was broadcast on the TV, two or more VV.I.PP of the UPFA visited you at the Elections Secretariat and after some time you left the Secretariat in their Company. Thereafter you were seen in the Secretariat only minutes before you announced on 27th January, 2010, inter alia, that this was the worst election you have ever conducted, it was only when Indra de Silva was IGP that you were able to conduct a peaceful election, you had been told by powerful persons that your only function was to count the votes in the ballot boxes and announce the result, your election staff could not even ensure the safety of the ballot boxes, you will attend to the incidental functions relating to that election in the next few days in January and not thereafter even set foot in the Secretariat premises, and you wished to particularly thank the IGP Mahinda Balasuriya because he complied with all the requests made to him by you.
To the astonishment of the Public, you returned to the Elections Secretariat on 2nd February 2010, and retracted all the statements you made. You also declared that you were willing and able to conduct the General Election which will determine the future course of this country. Many, including me, have lost all faith in your commitment to conducting any free and fair election. You are, once again making attractive statements which, from your own recent experience, you no doubt know very well, will go unheeded. You have not even bothered to appoint a Competent Authority but have directed Party Secretaries to seek fairplay from the very Chairman who blatantly refused it. You have left it to the IGP to deal with any Police officers who failed to actively support the President. You have turned a blind eye to the flagrant abuse of State Resources. You are just going through the motions.
I challenge you to appear live on TV and truthfully divulge to the country where, and with whom, you and your wife were between 3.30 p.m. on 26th January 2010 and 4.45 p.m. on January 27th 2010, and also invoke all the Constitutional powers vested in you, not for the purpose of boosting your tarnished image, but for the purpose of conducting a free and fair election. If you do so, public confidence in your ability and willingness to conduct a free and fair election may well be restored, and it will not be necessary for me to tender an unqualified apology to you and your wife for having brought you to this state, and also to the Sri Lankan Nation for having prevented your removal from the election process in 1999 and thereby facilitating, what I believe, were fraudulent elections in Sri Lanka.
Please be aware of the maxim “Facts cannot lie, but men can”
With best wishes to you and your wife.
Yours sincerely, Elmore M. Perera
The doctors have persistently recommended a better place with adequate ventilation system for detention for General Fonseka in view of his poor health condition, facing breathing difficulties. The past attacks and the suicide bomber incident during the war have weakened his health. Only his wife Mrs. Fonseka can visit her husband in military custody despite the court order which permits close relatives Gen. Fonseka to visit him. The government appears to have done this to keep Mrs. Fonseka always occupied with attendance to her husband. Then, she cannot participate in campaign meetings.It’s not yet too late to react before the country gets dragged in to a future political and economic disaster, for Sri Lankan and the International Community. The time has come for Sri Lankans to reflect and to choose the people that represent them best in upcoming parliamentary elections on April 2010.
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