The International Covenant on Civil and Political Rights (ICCPR) guarantees to every citizen the right and the opportunity to be elected at periodic elections to ensure the free expression of the will of the electors (Article 25). Sri Lanka
, as a party to this Convention has an obligation under Article 2 of the ICCPR to ensure that all individuals within its territory and subject to its jurisdiction are granted the rights recognized in the Convention.
The Sri Lanka Constitution also affirms these rights under Article 3 (the right to franchise) and Article 14 (freedom of speech, assembly, association, movement etc). It is the Constitution of any country that grants authority to the legislature to enact a statute. According to Black`s Law Dictionary, much quoted during the recent Court Martial of Sarath Fonseka
, a Constitution is a Charter of government deriving its whole authority from the governed. The organic and fundamental law of a nation or state prescribing the extent and manner of the exercise of sovereign powers A Statute (eg. an Act of Parliament) is the written will of the legislature, solemnly expressed according to the form necessary to constitute it the law of the State.
Then it is the Constitution which has granted authority to Parliament to enact a statute. Therefore, any Act of Parliament cannot legally deny any person the fundamental freedoms granted by the Constitution including the freedoms referred to in Article 25 of the ICCPR.
Sarath Fonseka was brought before the Court Martial on the charge that he had taken part in politics while serving in the Army. During the relevant stage of his career he was the Chief of Defence Staff appointed under the Chief of Defence Staff Act No. 35 of 2009. This law is peculiar to the holder of the office.
When Parliament passed this law last year, we did not impose any restrictions on the operation and the exercise of the fundamental rights contained in Chapter 3. Thus the fundamental law of our country ensures that the fundamental rights referred to above are applicable in the case of the Chief of Defence Staff.
In such a situation there cannot be a penalty imposed on him for determining his career after his retirement. Many public officers have contemplated entering politics after retirement in fact, some of them have retired from service prematurely to contest at elections. Nor is a military officer or a public officer precluded from talking of his / her future employment intentions before retirement.
What is the difference between contemplating on starting a business and contemplating on entering politics after retirement? Can we deny him the freedom of thought enshrined in Article 10 of the Constitution? Both the Prosecuting Counsel and the Judge Advocate General at the Court Martial of Sarath Fonseka failed to mention that the CDS Act should be read together with the Constitutional Rights enshrined in the Constitution.
General Sarath Fonseka applied to retire from the Army on November 12 2009. His request was granted by President Rajapaksa with effect from November 14 2009. On November 19, 2009, after his retirement, I informed the Working Committee of the UNP
that since the Government had not made an announcement regarding a Presidential or a Parliamentary Election, the Party should not rush to make a decision about a presidential candidate. After the announcement of the Presidential Election, the UNP Working Committee met on November 26 and endorsed General Sarath Fonseka as the Common Candidate of the Opposition. By this time similar decisions had been taken by some of the other political parties as well. Since he had retired from the Army, the Military Regulation 13/79 made under the Army Act no longer applied to him. But the Prosecuting Counsel and the Judge Advocate kept this information from the Court Martial and instead stated that the decision to nominate Sarath Fonseka was discussed for three week by the UNP when he was in uniform. I refuted this in Parliament stating that the Prosecuting Counsel had stated a falsehood and that he deliberately misled the Court Martial.
During the Court Martial the Prosecuting Counsel alleged that Sarath Fonseka had told one of the witnesses that he had planned to give information to the US government about President Rajapaksa and the conduct of the war. The alleged words were Your Honour hqoaOh i nkaOj weurslka wdKavqjhs wks a cd Hka r m%cdjhs n,df.k
bkafka. ckdOsm s =uhs wdrlaIl f,al jhs ysr lrkak talg wjYH idlaIs uu ,. we sfjkak sfhkjd. Your Honour, When the Accused General said he would be releasing this information, that is relating to the war between the LTTE
and the Government, to the international community, specifically the US Government, with the intention of cornering that is the word that was used in Sinhala or cornering or putting into difficulty the President of the country and the Secretary to the Ministry of Defence.
General Sarath Fonseka was charged under Section 124 of the Army Act for using traitorous or disloyal words regarding the President. The Judge Advocate General referring to traitorous or disloyal words used in Section 12 did not give the meaning of treason . A person cannot be convicted in a Court Martial without defining the offence and the actions which constitute the offence. The Black`s Law Dictionary defines treason both under the US and English law. In Cramer vs. the USA the Supreme Court
stated that treason consists of two elements: Adherence to the enemy, and rendering him aid and comfort . In English law treason is defined as adhering to the king`s enemies in his realm, giving to them aid and comfort in the realm or elsewhere Since it was alleged that the information was to have been given to the US government, is the US Government then deemed to be an enemy of this country? If so, the Sri Lankan Government must state so. The US Government has on a number of occasions helped us against the LTTE.
The words alleged to have been used by Sarath Fonseka cannot be deemed treacherous. The Report Sri Lanka: Recharting U S Strategy after the War by the Committee on Foreign Relations United States
Senate referring to a discussion with Gotabaya Rajapaksa, Secretary ministry of Defence, states he did not deny there have been cases of government abuse but that defeating the LTTE had been the top priority and trumped other considerations . Civil and Military officials in USA, UK and other countries have from time to time divulged that some members of their armed forces have abused human rights in times of war. This does not constitute treason.
On the other hand, none of the reports issued by the US State Departments and Congress refer to any statements made by Sarath Fonseka against the Sri Lankan Government. Moreover, during his stay in Washington DC, General Fonseka was accompanied by Embassy officials. There is no evidence of General Sarath Fonseka having made a statement regarding the war to the US Government. Neither did the Prosecuting Counsel show that the US Government was planning to prosecute the President and the Secretary Ministry of Defence or put them in any other difficulty. But, the Sri Lanka Ambassador to the US was not called as a witness by the Court Martial. There is no evidence to prove that the words spoken, even if they were true, caused any harm or injury to the President nor do they come within the definition of traitorous or disloyal. This is because Sri Lanka is not a party to the Rome Statute of the International Criminal Court. I declined to sign it when I was the Prime Minister. As a result no person can be charged with war crimes.
Another instance of misleading the Court Martial is the introduction by the Prosecuting Counsel of the Emergency Regulation No. 1100/1 made on 21 July 2001 as evidence (Judicial notice) regarding the composition of the National Security Council. It is correct that these regulations made legal provisions for the National Security Council. However, these Emergency Regulations are no longer valid as all Emergency Regulations lapsed in October 2001 when President Chandrika Kumaratunga
did not renew the Emergency. The next time President Kumaratunga proclaimed Emergency was in 2005. The new set of Emergency Regulations which are still in force do not make any reference to the composition of the National Security Council.
Thus the 2001 regulations referred to by the Prosecuting Counsel are no longer law. It seems the Judge Advocate referred to invalid regulations in summing up the case.
Furthermore, the witnesses giving evidence against Sarath Fonseka had never actually met him. According to the evidence he is alleged to have spoken to witnesses by mobile phone. Some of the witnesses stated that a CDMA phone in the possession of a journalist by the name of Ruwan Weerakoon was utilised to speak to General Fonseka. However, Ruwan Weerakoon was not called as a witness. Neither did the Government utilize all the investigative and technical resources at its disposal to lead expert evidence to establish that these telephone calls were made on telephones that could be traced to General Fonseka. The Court Martial found Sarath Fonseka guilty on evidence that would not have sufficed to convict a person in any Court of Law or an institution administering justice.
The principal object of a Court Martial is not so much the administration of justice but the maintenance of discipline in the Army. It is based on the royal prerogative to regulate and discipline the Army exercised by Edward I in 1279.
The British Army Website has this to say regarding Military Law: The principal object of military law is to maintain order and discipline amongst members of the Army and, in certain circumstances, those who accompany them. It achieves this by enforcing a special disciplinary code and procedure that supplants the ordinary criminal law of England.
The CRS Report for the US ...