Posted on February 11th, 2010

Sarath Wijesinghe “”…” (Solicitor in England and Wales , Attorney “”…”at “”…”law in Sri Lanka and one time army officer of Sri Lankan Army- )

Retired General Sarath Fonseka was arrested by the Military police for investigations

for commitment of military offences under S/57(1) of the army Act No 17 of 1949 in which any army officer during active service or within the period of six menthes of retirement which states as follows;

Where a person subject to military law commits any offence and thereafter ceases to be a person subject to military law, may be taken into and kept in military custody and be tried and punished for that offence by a court martial, provided that, he shall not be so tried after the lapse of six months from the date of the commission of such offence. During the imprisonment he should be dealt with as if he continued to be a person subject to military law. This clears the minds of Fonseka supporters and interested groups on the legality of the arrest. When he has committed offences and whether he has committed any offence is a matter of facts to be determined by the military police.

Every citizen is entitled to equal rights and equal protection and should be treated equally irrespective of the social states or the position hold or held. General Fonseka is no exception as in Article 14 (1) every citizen has been given equal protection of freedom of all the rights started including equality before the law as guaranteed in the Constitution of the Democratic Socialist Republic of Sri Lanka.

Army act is part of our law which is force since 1949, and there is no dispute that those subject to army law should be subject to the act whether civil criminal or offences committed under the army act. Section 35 of the act states a person subject to military law who commits any military or civil offence may be taken into custody.

Whether he has committed any offence is not the subject of discussion. Our concern is the legality, and not the morality of the process and whether due process and procedure is taken place.

Army law is strict and rigid. A citizen joins the army prepared to go through the tough life and subject to rigorous army law especially during war and civil disturbances. Nation went through a bloody war over 30 years and it was necessary to adherer to law to the last word as it concerns the life of the citizen and the future of the nation and the future generation.

General Fonseka requested from President Rajapaksa to relinquish his duties form the post of Chief Defence Staff, the highest position in the Armed Forces appointed under Chief of Defence Staff Act No 35 of 2009. This is the highest position a member of the security officers could attain and the decision to resign was effected as an urgent matter without proper consideration. Both General Fonseka and Sarath Silva were political animals aspired to be the President and Prime Minister of Sri Lanka and it appears that steps were taken to achieve their goals much before their retirement. Silva is Fonseka’s Adviser on legal and political matters who got on to Fonseaka’s political stage and took part in “Chat Shows” on the television unusual and unethical for a retired Chief Justice and unprofessionally quoting and using his own ongoing judgements in support of his cry for 17th amendment, the Sri Lankans have flatly rejected. According to the International Bar Association and international media Silva have been the most controversial Chief Justice and no Chief Justice since the inception of the Supreme court in 1802 has taken to active politics and controversial on political and personal matters. There is agitation from the masses and members of parliament to review some cases of Silva while endorsing and respecting all the other judgements of the Supreme Court since 1802 to date.

General Fonseks too have been the most controversial Army Commander who decided to take on his Commander in Chief, who extended his term of office few days before the retirement in addition to number of benefits given to him personally and to the family. There is doubt and concerns whether he was politically and legally well advised by his newly found friends who were at one stage arch enemies of both General Fonseka and Silva.

Now the question arises whether the steps taken to arrest of General Fonseka is in accordance to the law and procedure and was the principles of rule of law and due process is applied. The legislation is clear that the Military Police could arrest him and investigate into any allegations most of which are in the public domain and known to the masses. Under the procedure there is provision to use minimum force during the course of the arrest and it is a matter between each others version of events.

General Fonseka’s arrest is taken charge by media, political parties and a fundamental right application is filed challenging the detention on the charges allege to have committed in violation of military law. Position taken by the legal advisors of Fonseka is that the arrest is illegal and fundamental rights are violated. Case was filed promptly and Fonseka supporters were jubilant and protested with satisfaction that it has been given widest publicity locally and internationally as expected. Fonseka’s legal advisers are apparently busy with the preparation of the election petition and to meet the deadline of 21 days. General Fonseka’s family and lawyers are freely allowed to visit him and minute by minute normalcy is being reached according to due process. There is a guarantee by the Army spokesman that General Fonseka will be provided with all facilities and privileges of a general in detention for offences committed under the army act.

There will be a series of interesting and complicated legal political and international issues discussed in the public eye in the next few days with allegations and counter allegations from either side. But time is the best healer and it will bring about a solution or solutions to this complicated maize of events.

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