Anatomy of an Election VI: The continuing saga of the two Saraths - 21 March 2010

by Rajiva Wijesinha

It was vastly entertaining to read on March 14th an article by former Chief Justice Sarath Silva which claimed to provide ‘A Legal Perspective’ on the Arrest and Detention of General Sarath Fonseka. It concludes with a masterly peroration that is symptomatic of the brilliant but it seems deeply flawed mind which dominated our legal system for so long.

The first sentence of that last paragraph characterizes General Fonseka as ‘a candidate nominated for the Parliamentary Elections’. The implication is that this is somehow relevant to the legal action taken against him, whereas surely a former Chief Justice must be aware that contesting elections should not be a shield against justice.

Unfortunately the former Chief Justice fails to disclose his own interests in the matter, as a political supporter of the General. That is what makes his final sentence so ironic, when he explains his resounding assertion that the arrest and continued detention of the General are ‘entirely contrary to law and justice’: he declares that he does not state this ‘in derogation of the lawful authority of any person or institution empowered to decide on the matter, but only to kindle the compassionate reflection of right thinking people on an issue of humanitarian concern’.

The disclaimer arises perhaps from the fear, based on his own predilections, that some ‘lawful authority’ would find him guilty of contempt of court. But his positive claim, that compassionate reflection will lead to the conclusion that this is a matter of humanitarian concern rather than possible guilt as to criminal and other offences, suggests complete confusion about the many roles in which he seeks and has sought to present himself to an all too knowledgeable public.

I should however first disclose what may seem an interest in the matter. The former Chief Justice made a ruling in a case involving my father which seemed to me grossly unjust and without proper reference to the matters at issue. I have also had occasion to criticize his ruling on the limitation he imposed on the second term of President Kumaratunga, though I noted then that this seemed to have been due to the failure of her counsel to explain an element in the Constitution that might have seemed ambiguous. I have since been assured by one member of her legal team that that ambiguity was explained. I was also told that it is the business of the judge to interpret what might seem ambiguous, and not ignore constitutional provisions on the argument that counsel had failed to clarify a particular ambiguity.

I should also note that I myself have noted in the case of General Fonseka that a civil trial would be preferable. This is not because I believe there is any injustice involved in a military trial, but simply because that allows for claims of injustice by those who have not studied the situation or registered its seriousness. Since the evidence seems, from the newspaper reports we have seen, to suggest that there is strong reason to suspect General Fonseka of common criminality, a civil trial would I felt have made the actual position crystal clear were he to be found guilty.

Nothing illegal in a military trial

Having now studied the army acts, it is clear to me that there is nothing illegal in a military trial, and that Mr Silva’s claims regarding this are so farfetched that one wonders whether he himself believes them. The claim that the Commander of the Army is not an officer of the army is preposterous. Mr Silva argues that the Act allows the President to appoint anyone fit and proper to be Army Commander, and this need not be a commissioned office, therefore the Army Commander ‘is neither a commissioned officer nor an enlisted soldier’.

It is possible that any outsider made Army Commander would not be considered an officer, but the assumption that an officer ceases to be one when he becomes Army Commander is untenable. If that were the case, he could not be promoted as an officer, whereas we know that Sarath Fonseka did indeed climb the officer’s ladder as Army Commander, even if he was limited finally to four stars and not the five he is said to have desired.

Mr Silva’s claim then that the Commander is not subject to Military Law is plainly specious. As though realizing this, he then goes on to argue that the Chief of Defence Staff is not stated in the CDS Act as being subject to the Army Act or military law. However he grants that the Act does make it clear that the CDS shall continue as a member of the regular force of the service to which he belonged.

Typically of a casuist, Mr Silva writes that the CDS is ‘deemed to continue’ and then talks dismissively of this ‘deeming provision’, whereas the Act does not use the word ‘deem’ but says plainly and simply ‘continue to be a member’. Even more disgustingly, Mr Silva ignores completely that, throughout the CDS Act, it is declared that the person the President shall appoint as CDS should be an ‘officer’ (that is specifically stated in Clause 2 (1) and (3) – twice in the latter – and in Clause 3 (2)).

I do not think for a moment that Mr Silva failed to notice this specific provision, so one wonders how he had the brass to claim that ‘It is manifestly clear that the Commander of the Army is neither a commissioned officer nor an enlisted soldier’. In his view then, General Fonseka seems to have ceased to be an officer when he was appointed Army Commander, but then resumed his officerial status to be promoted, and once again just before he was appointed CDS, since otherwise he would not have been eligible for the position.

Interestingly, as though to grant that he has been talking nonsense, in his own article Mr Silva claims that ‘The Commander is the highest ranking officer’. He has obviously forgotten his own previously laboured claim, but now he is chasing after another hare. This is the assertion that General Fonseka, as the seniormost officer in the army, could not be taken into custody or indeed charged because there is no one senior to him.

This again is ridiculous, because clearly there is provision for emergency action to stop violence, inasmuch as junior officers can take into custody senior officers in cases of ‘quarrel, affray or disorder’ (which it could be argued was precisely what General Fonseka was up to). Furthermore, the President, as Commander-in-Chief of the Armed Forces, obviously has commanding status vis-à-vis the Army Commander and the CDS, and may decide and delegate as required for the disciplinary and judicial purposes for which Military Law needs to be applied. Mr Silva’s claim, that ‘There is no officer who could be "commanding" the Commander himself’, suggests he has no idea what is meant by the term Commander-in-Chief. Of course the learned former Chief Justice might argue that the President is not an officer, but that would come incongruously from someone who has so strenuously argued, only to forget it a few paragraphs later, that the Army Commander is not an officer.

Finally Mr Silva attacks the Army Act itself, and says that the Fundamental Rights provision in the Constitution prevails over the Army Act. He cites Article 168 (1) of the Constitution for the continuing validity of the Act but forgets that that Article notes that laws continue in force ‘except as otherwise expressly provided in the Constitution’. Instead he claims that Article 13 of the Fundamental Rights Section of the Constitution should prevail over the Army Act, which may be true if there is any explicit contradiction, but surely not if it is a matter of interpretation.

Having made the untenable general point, Mr Silva goes on to engage in specious interpretation. He claims that Sarath Fonseka could only have been arrested as he was if he had been a member of the Army and charged with the maintenance of public order, and if the arrest was necessary to assure the proper discharge of his duties and to maintain discipline in the army.

He bases this contention on the provision that the relevant fundamental rights provisions 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’.

I don’t think it needs a degree in English to understand that the phrase ‘charged with the maintenance of public order’ refers here to ‘Forces’, not to their individual members. And it is the restrictions that law prescribes which should be in the interest of proper discharge of duty and the maintenance of discipline, not an arrest, which is simply concomitant to such law.

In short, Mr Silva’s long essay presents neither a legal perspective nor a logical one. Of course as a good lawyer he will argue his case as best he can. But if this is what we have to expect from arguably one of the best legal minds of his generation, one begins to understand why some lawyers have argued that there should be a systematic review of his decisions as Chief Justice. I think, with due apologies to my father who will not see justice done, that such a drastic step would be unwise. But if the saga of the two Saraths unfolds further in this mockery of serious argument, I can see the pressures mounting.