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All courses of action taken against General are against the law Former Chief Justice
Monday, 15 March 2010 - 8:52 PM SL Time
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All moves taken by the present government regarding Gen. Sarath Fonseka after the presidential election were illegal and undemocratic says former Chief Justice Sarath N. de Silva
Speaking at a press conference held at Galadari Hotel in Colombo today (15th) 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 GSP+ facility is being suspended by the EU. 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 and
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.
Leader of the group of Parliamentarians of the JVP Anura Dissanayake, General Secretary of Democratic National Alliance Vijithe Herath and DNA candidate for Colombo District Sunil Watagala were present.
http://www.lankatruth.com/index.php?option=com_content&view=article&id=4960:all-courses-of-action-taken-against-general-are-against-the-law--former-chief-justice&catid=34:lead-news&Itemid=50
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tigerforce
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 15 Mar 2010 15:04:53 GMT Report for Abuse
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China is in negotiations to build a high-speed rail network to India and Europe with trains that capable of running at over 200mph within the next ten years. A trip from London to Beijing could take just two days.
The network would eventually carry passengers from London to Beijing and then to Singapore.
It would also run to India and Pakistan, Wang Mengshu, a member of the Chinese Academy of Engineering and a senior consultant on China's domestic high-speed rail project, was quoted as saying.
A second project would see trains heading north through Russia to Germany and into the European railway system, and a third line will extend south to connect Vietnam, Thailand, Burma and Malaysia.
Passengers could board a train in London and step off in Beijing, 5,070 miles away as the crow flies, in just two days. They could go on to Singapore, 6,750 miles away, within three days!.
'We are aiming for the trains to run almost as fast as aeroplanes,' said Wang. 'The best case scenario is that the three networks will be completed in a decade,' he added.
Wang said that China was already in negotiations with 17 countries over the rail lines, which will draw together and open up the whole of Central, East and South East Asia. Wang said the network would also allow China to transport valuable cargoes of raw materials more efficiently.
'It was not China that pushed the idea to start with,' said Wang. 'It was the other countries that came to us, especially India. These countries cannot fully implement the construction of a high-speed rail network and they hoped to draw on our experience and technology,' he said.
China is in the middle of a 480 billion domestic railway expansion project that aims to build nearly 19,000 miles of new railways in the next five years, connecting up all of its major cities with high-speed lines.
The world's fastest train, the Harmony Express which has a top speed of nearly 250mph, was unveiled at the end of last year, between the cities of Wuhan and Guangzhou. Wholly Chinese-built, but using technology from Siemens and Kawasaki, the Harmony Express can cover 660 miles, the equivalent of a journey from London to Edinburgh and back, in just three hours.
The route of the three lines had yet to be decided. 'We have also already carried out the
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tigerforce
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15 Mar 2010 15:10:40 GMT Report for Abuse
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COLOMBO (Reuters) - Sri Lanka will seek a waiver from the International Monetary Fund (IMF) after failing to meet the 2009 budget deficit target agreed under a $2.6 billion loan deal, the central bank said on Monday.
The IMF said late last month that it was delaying the third tranche of the loan, approved last July to help Colombo avert a balance of payments crisis. The third tranche is worth around $318 million of the remaining loan of around $2 billion.
Delays in IMF disbursements could undermine foreign investment as Sri Lanka seeks to recover from a 25-year civil war, and could also raise the costs of borrowing via a 10-year, $500 million sovereign bond sovereign bond it expects to sell later this year.
'When they (the IMF's mission to Sri Lanka) go to their board, we will request a waiver (to allow the frozen payments to resume),' K.D. Ranasinghe, the chief economist at the central bank, told Reuters in an
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MaKaSo
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 15 Mar 2010 15:10:50 GMT Report for Abuse
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| Would like to hear comments from LNP Law Professor RASAK who is temporarily posted to UK to advice Queen of England on legal matters :):) |
sansare
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 15 Mar 2010 15:18:53 GMT Report for Abuse
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Sounds the case is more suitable for civil court.
Waiting to see how gov responses for this.
Dalas already said, this fact - no higher officer to SF- will not affect to the case. But, how gov legally defence its position is worth to observe.
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rswkv
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15 Mar 2010 15:20:10 GMT Report for Abuse
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All courses of action taken against General are against the law Former Chief Justice
True if we are living in a democracy. Law of the land is not a valid entity in the Jungle Law practiced by Mugabi Idi Amin Jarapakshe.. |
chennaiguuy
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 15 Mar 2010 15:22:25 GMT Report for Abuse
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When FORMER ARMY commander who was in the midst of war says that War Crimes are done,
When FORMER CHIEF justice, who was in midst of framing law says that Law of Jungle prevails in Srilanka,
Only Modalankans like rasak says it is not TRUE...
Banana failed republic Silly Lanka going the way of Burma !
:-)) |
yarlan
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 15 Mar 2010 16:23:10 GMT Report for Abuse
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Rizwana,
I left you a response last Friday. I didn't come to LNP since then. I hope you can read them.
http://www.lankanewspapers.com/news/2010/3/54720_33.html?CH11268482561967EN1 |
yarlan
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15 Mar 2010 16:33:06 GMT Report for Abuse
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Rizwana,
Others know it (who have read most of my comments) here. I am really excited about the changes that are taking place in Sri Lanka. Especially in the former war-torn areas in the North & East. You asked me about how I feel about the 'Sinhala invasion' of Jaffna. This is not an 'invasion'. The people of Sri Lanka are now seeing part of their country they could not see for more than 2 decades.
The Tamils and Sinhalese should take the opportunity to see for themselves, parts of the country they did not have the chance to visit before. I called for a unified Sri Lankan identity even before the President spoke about it in his war-victory speech last May.
I can speak for only myself. I am really sorry about what LTTE did to your family and thousands of others. The Tamil people who complained about becoming victims of Sinhala-orchestrated violence, allowed the same the thing to happen to so many of you. Except, what LTTE did was much worse. Little did they realize, that the Jaffna Tamils will be undergoing through the same ordeals later, at the hands of the LTTE. Now, we should find it in our hearts to forgive and forget. I am confident, that a new hopeful future for all Sri Lankans is in the making. We should do all we can to make it a reality for generations to come.
Edited By - yarlan - 15 Mar 2010 16:36:26 GMT |
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15 Mar 2010 15:50:48 GMT