When the law is an ass why is ex-CJ following it?
Posted on March 16th, 2010

H. L. D. Mahindapala

Among other things the former Chief Justice Sarath N. Silva told the media on Monday at the Galadari Hotel that Sri Lanka is not a democracy. Coming from the ex-CJ, this should be stunning news to those who are concerned about Sri Lanka. But this also raises some relevant questions: When did he discover this? Was it when he was on the bench? Or was it after he joined the losers in the JVP-Fonseka gang hoping to be the next Prime Minster if Fonseka won, undercutting Ranil Wickremesinghe? Considering the fact that there is hardly any difference in the political realities of the nation since he left the bench there couldn’t have been much of a difference in the quality and the quantum of democracy in the nation. If, however, there was no democracy when he was on the bench why was he presiding over a judiciary that was not a democracy? But since he is now a great champion of democracy we have to assume that he wouldn’t be a part of a non-democracy. If so he has to prove how democracy lost its status after he left. Well, his main argument is that the arrest and detention of the defeated presidential candidate General (Retd.) Sarath Fonseka, who has plans of making him the prime minister is no longer there to fulfill his ambitions.

Of course, he also brings up the argument that the arrest and detention of his Godfather had violated the Sri Lankan Constitution, Code of Criminal Procedure Act, Army Act, Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). The intriguing aspect of this is that, rightly or wrongly, Fonseka is not the only person seeking remedies from the law on these issues. For instance, the Tamil lobby states that so many suspected LTTErs too have been held without a trial. So why is Sarath Silva making a song and dance about Fonseka only? How come he did not invoke all these acts in statute books, international covenants and declarations in defence of others like Fonseka when he was on the bench? Was it because he was too busy closeted inside cars parked in lonely places and chasing away policemen who were probing into his awkwardly horizontal activities?

His current public performances are so transparent that one can see that he is not doing it out of commitment to democracy or a determination to uphold the law. Underlying all his public performances there is a clear political objective: it is an overbearing tactical move on his part to virtually intimidate the judiciary to follow his line, imagining that he is still the CJ who can lay down the law. Unfortunately for him he is sitting on the wrong bench. What power is there in the benches of the JVP? He might as well go and fly a kite at Galle Face Green instead of wasting his breath in nearby Galadari?

In any case, his utterances is not the law speaking objectively, holding the scales evenly. This is Sarath Silva speaking for Sarath Silva. After leaving the bench he pinned his hopes and future on Fonseka. He got on his platform and campaigned for him on the understanding that Fonseka would make him the prime minister, leaving Wickremesinghe to whistle in the winds. This alone was sufficient to reveal his character, integrity and his hidden political agenda. He was backed by the JVP who was plotting with Fonseka to undercut Wickremesinghe. For him to jump from bench at Hulftsdorp into the lap of Soma-hansa is not the kind of leap that would win the admiration and respect of the general public. Besides, he is now openly playing a partisan role to save his would-be Godfather. But hanging around with the Soma-hansas is not the way to convince the public that he has the law on his side.

It must be stated that his judicial activism in some instances, though controversial, had its good side. If he was to retain his respect from the people he should have retired gracefully and become a social activist in Buddhist circles, as he pledged once. Instead, he made the same mistake of his Godfather, Fonseka, who never knew when to call it a day. Rather late in the day Fonseka has learnt that old soldiers never die. They just go to face a court martial! And old judges like Sarath Silva too hope never to die. They just continue to dig holes for them go down unceremoniously into oblivion. Right now he seems to very busy cutting the last sod of his own grave. In between he is left with only the last remaining tactic of throwing whatever books he can pick up from the Law Library in Hulfstdorp at his political opponents.

An overview of his legal arguments confirms that the law is a silly ass. Consider this from the news report: “The former CJ said that only commanding officers could make charges against their officers according to section 40 of the Army Act. There were no commanding officers in the army above Gen. Fonseka.”

Going by this asinine law Fonseka could get away with blue murder because there are no commanding officers in the army above Gen. Fonseka who could make charges against their superior officers. (Article 40, Army Act).

Here’s another gem: “If Fonseka committed an offense,” says Sarath Silva, “there are no provisions to arrest him under the military law because he is the senior-most army commander with four-star general status. However, according to section 36 of the Army Act, only a senior officer can arrest a junior officer, but Gen. Fonseka was arrested by junior officers.” The operative words are “If Fonseka committed an offense”¦” So let’s assume that Fonseka has committed a crime. According to Silva, no matter what crime Fonseka commits the law can’t touch him because there is no provision in the law for juniors to arrest seniors. Silva considers this law of seniority as an inviolable principle and until the Army produces another five or six generals no one should touch Fonseka.

In other words, Silva is saying that an Army with only one General can get away with any crime because there are no other officers of equal rank. As they say in the vernacular, this must be the law of King Kekilay. This is not law but a loophole which he is trying to exploit to save his Godfather. It is big for elephants and criminals to go through with the least inconvenience. But with his legal experience he should know that judicial activism has invariably stepped into the fill the gap whenever such glaring unjust loopholes come up. After all, isn’t a crime a crime irrespective of the seniority of the criminal? What kind of justice will exonerate a criminal purely on seniority?

The news report also said: “The former CJ said that only commanding officers could make charges against their officers according to section 40 of the Army Act. There were no commanding officers in the army above Gen. Fonseka.” So if there is no commanding officer above Fonseka does it mean that he is above the law?

Clearly, the law is an ass in this case. It is an ass because the Army Act was not amended to be with the changing times and the evolving needs of the Army. It is still frozen in the colonial times in which it was drafted, according to reports. As I understand it, the acts governing the navy and air forces are changed to suit the new circumstances. There is, therefore, an urgent need to change the Army Act. That’s for sure. In any case, what is the worth of an Army Act (1) if the crimes of a General are not brought within the ambit of the law and (1) if there is no defined law to meet the consequences of his acts of commission and omission?

Amending the law may take time. But, in the meantime, the lacuna in the law should not be made an excuse to let anyone in the army to get away Scot free. The law interpreted in narrow technical terms does not deliver justice. The law also must be applied equally to all ranks, irrespective of seniority. The army cannot march on crooked interpretations of laws.

Sarath Silva should know that the law in this case is an absolute ass. But what is puzzling is why the ex-CJ is blindly following this ass? Could it be that he has become an honorary member of that breed?

4 Responses to “When the law is an ass why is ex-CJ following it?”

  1. A. Sooriarachi Says:

    The recently held presidential elections divulged the shallowness of many well known individuals and groups engaged in politics today.
    Prior to this election, I’ve heard that the JVP was hellbent on getting rid of the Norwegian embassy; Tiger Diaspora and TNA hell bent on eliminating General Fonseka; UNP rediculing General Fonseka as a person not fit to lead even the salvation army and also the former CJ Sarath Silva advising Gotabaya Rajapakse not to trust General Fonseka as he is an ambitious man who shouldn’t be trusted. However during the election campaign all these views and relationships turned upside down and in their quest for power, General Fonseka became the darling of all of them and queued up behind him.
    In the end it seems all these people who have tasted power in some form or another, find it very difficult to revert to being ordinary citizens. Both General Fonseka and Sarth Silva fall into this category and they seem to still crave for power and it prepared to even sacrifice the good name of the country just to get the support of powerful external forces wanting a regime change.

    As for Sarath Fonseka, another question is, how strong is his bond with the JVP, as I hear he had been a contemporary of Wijeweera at Dharmasoka Ambalangoda. What is Sarath Silva’s position on this connection.

  2. Sita Perera Says:

    Mahindapala, the prollific writer has come up with another masterpiece. This is sharp and witty, so as his previuous articles. I believe, the best writer to come up in our generation, after the late Great Mervin Silva, and now Dayan Jayathillake. It’s time Mahinda Rajapakse to send Mahindapala back to “Beire Gedera” (he had been there before manning the Sunday Observer) in charge of the ‘House’ there, and put things in order. Mahindapala deserves such a distinguished appointment given the enromityof service he is doing for the UPF Government.

  3. dingiri bandara Says:

    It is so sad that an ex CJ a party like the JVP. It appears that that these people have forgotten that by any chance if JVP succeeded in 1971, we would have had another Pol Pot regime in Sri Lanka.
    Who arrested general Richard Uugama in the 60’s when he was the highest ranking officer?

  4. Priyantha Abeywickrama Says:

    Refer comment by suckerboy (sheriffboy), I wonder whether you have some idea of the ethnic labelling that you made in your comments. You say “ JVP are not aliens, they are singhala educated rural youths 95% are Buddhist..”. It is a great lie. Those believing in communism, a product of paranoid thinking of a Jewish migrant associated with German Ghettos, can never be Sinhala. If you analyse the ethnic profile of communists in Lanka, they are essentially children of poor and destitute local women fathered by Europeans during the European occupation who have dominant European features than local ones. Considering the inherited characters based on dominant partner, the European father who used the misery of the local women employed for low-paid work to father illegitimate children, I would suggest to consider them as Europeans in local costume who try to impose European will over local values than any form of locals. Obviously, communism that rejects ethnicity or religion though the creator himself is driven by the original Jewish mentality of turning anything and everything up side down to make a few bucks, offers the right cover to disguise themselves. Essentially they stand for European values and sound more like poor Europeans living in European countries than anyone living in Lanka if someone does a comparison with the local values. It is ridiculous to suggest that there exists people called “Educated” as the local education system borrowed from the west is dedicated to produce repeaters mainly from the background of such people and has little in common with local identity. It is a tragedy to call 95% of them as Buddhists, because you have no idea of what Buddhism is compared to Communism by your own admission. There is only a small minority of local origin who were being deceived by heavenly promises, the real bait for anyone to get caught, a very negligible number of local poor who see nothing but misery looking for a change using any means at whatever cost in their last stages of humanity. Vast majority of those supporting this blood thirsty suicidal and unworkable ideology are those who do not have a future as such. If the pattern of events that had occurred over time is considered, world is better off without those who got even a soft corner for such a tragic belief. When you use the ethnic identity Sinhala to describe them, it is a great insult to Sinhala people as Sinhala value system is the only value system that offers the sanctity of life and the notion of letting other live as well. In every aspect, those adopting Jewish ideologies, whether communism, capitalism or socialism, should be consider as pseudo-Jews as their actions speak louder than heavenly claims to prove their closeness. Those seeking Employment as the sole means of living will end up becoming Jews, the tragic means that created the original Jews.

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