Legality of Fonseka’s arrest
The UNP, JVP and other combined Opposition parties that contested the
2010 Presidential Election under the swan symbol of the common candidate
General Sarath Fonseka whose theme was “Change” ‘Save democracy’ were
soundly defeated by the incumbent President Mahinda Rajapaksa by a
majority of 1.8 million votes.
However, soon after the election result was confirmed by the
Elections Commissioner the Opposition leaders who were not prepared to
act democratically and concede defeat acting in flagrant breach of their
own erstwhile slogan to save democracy commenced a campaign to incite
their supporters to take to the street making false allegations against
the final official results thereby creating mayhem in the country to
attract the attention and sympathy of the international community.
Provoking the people to achieve political objectives
Consequent to the arrest of the defeated candidate Fonseka by the
Military Police, the Opposition parties capitalized on this issue to
rouse their supporters to take to the streets in protest demanding the
release of the General and even attempted to commit a breach of peace by
invading the sanctity of the Superior Courts complex.
In a news item telecast by a TV channel on the boisterous and violent
demonstration of the Opposition euphemistically described as a
‘Satyagraha’ one demonstrator was shouting the slogan “We shall continue
this satyagraha till Sarath Fonseka is released”.
This aggressive utterance is not only offending the rule of law but
also provocative and likely to lead to a serious breach of peace and
create a dangerous precedent in the administration of justice.
It is contrary to the policy of the founder of the Satyagraha
movement. Mahathma Gandhi’s Satyagraha was a policy of passive
resistance to British rule advocated by him that won the freedom of
It has become evident that the Opposition party leaders smarting
under their bitter defeat, without following the correct legal process
to seek relief, accused the Government of not observing the rule of law.
They tried to take the law into their hands by misleading the public
by disputing the confirmed Presidential Election result while focusing
attention on the arrest of Fonseka alleging the arrest as an act of
revenge for contesting the incumbent President which is far from the
It is also evident that the Opposition political camp now in disarray
in the face of the Parliamentary elections in April in respect of the
nominations and symbol, has launched another massive campaign of false
propaganda through the media to canvass support against the UPFA on the
issue of the arrest of Sarath Fonseka.
It is clear that articles by certain academics, lawyers, politicians
and others published under various captions daily on the issue of the
arrest of General Fonseka by the Military Police try to paint the wrong
picture to gain undue political advantage for the upcoming Parliamentary
Misleading the public
For instance “To arrest a General and plot a coup” published on
February 16 by Harim Peiris (Advisor to former President Kumaratunga -
2001 to 2005) writes inter alia; Quote “and most importantly since the
legality of the arrest and continuing detention are a matter that is now
sub judice pending before the Supreme Court of Sri Lanka with leave
granted to proceed and listed for hearing late next week, this column
out of uttermost deference and respect to the Court, does not intend to
comment upon the matter”.
But having said this, the words in the caption “And plot a coup”
manifestly contradicts this declaration of no comment. That undoubtedly
lets the cat out of the bag disclosing the primary objective of the
writer to mislead the public as the rest of the article contains
comments on the matter that he admits as sub judice.
Harim Peiris has drawn inspiration by quoting reference to an article
published by a former Ambassador Dayan Jayatileke in the same journal
the previous day; Quote “an excellent piece on contrasting the current
handling of the alleged coup with a previous SLFP regime’s handling of
the only other coup attempt in independent Sri Lanka way back in 1962.
There the strict legal due processes followed including the submission
to the Privy Council in the pre republican days eventually saw the
acquittal of the accused by the Privy Council on technical grounds. But
justice was served and democracy preserved.
Sri Lanka’s estimation in the eyes of the world was sky high. The
world particularly the West perceives the current incidents in Sri Lanka
in increasingly negative light and our reputation as a democratic and
free society no favours by any perceived short circuiting of due process
in a very sensitive situation.” The personal opinion of the writer being
conveyed to the western world.
Issue of sub judice
In the writers anxiety, in the instant matter that is sub judice, to
get across his message to the western world he has suppressed the truth
regarding the technical defect he refers to on which the Privy Council
of the day acquitted all the accused in the 1962 coup attempt.
It was not a technical defect it was a vital ground on which the
accused were acquitted. That was entirely due to the bungling and
mishandling by the Minister concerned fearing that the prevalent law was
not sufficient to obtain the conviction of the accused brought in
legislation creating new penal law on which the accused were convicted
by the Supreme Court.
The Privy Council held that the new law brought in after the date of
offence for the purpose of convicting the accused was ultra vires and
bad in law. In this context the writer’s opinion that at that point of
time “Sri Lanka’s estimation in the eyes of the western world was sky
high “is equally untenable as the opinions he has expressed in the
article under consideration and deserve to be rejected.
The only redeeming feature in the 1962 coup attempt was the prompt
and courageous action taken by Prime Minister Sirimao Bandaranaike who
had a difficult task before her that day to select the officers loyal to
the Government to be delegated the responsibility to arrest the coup
suspects in the Police, Army and Navy before the midnight on January 26,
That averted the overthrow of her Government and the arrest of
certain persons in Colombo District who were to be arrested by special
officers delegated for such purpose by the coup leaders, at 1 a.m. on
January 27, 1962 at their residences. But due to a lapse of timing MP
Neil de Alwis of Baddegama had been arrested on the orders of the
conspirators. The reason for the arrest was that he had warned the SWRD
Bandaranayake Government of 1956 and named a principal suspect in the
coup plot years before the event.
On February 19, 2010 an article titled “Transparency issues and
General Fonseka’s recent arrest” by Dilini Algama a discussion takes
place despite the matter in issue is sub judice.
In the premises for the benefit of the ordinary persons the sections
of the law, relevant to the question in issue, of the Chief of Defence
Staff Act No. 35 of 2009 are re-produced verbatim. “Section 3. Where an
officer serving as the Commander of the Army, the Commander of the Navy
or the Commander of the Air Force as the case may be, is appointed as
Chief of Defence Staff, he shall upon being so appointed, relinquish his
position as the Commander of the Army, the Commander of the Navy, or the
Commander of the Air Force, as the case may be:
Provided that notwithstanding anything to the contrary to the Army
Act (Chapter 357), the Navy Act (Chapter 358) and the Air Force Act
(359), the person so appointed as Chief of Defence Staff shall, for so
long as he holds such position continue to be a member of the regular
Force of the Service to which he belonged at the time of his appointment
under section (1).
Provided further when such officer relinquishes his position as the
Commander of the Army, the Commander of the Navy, or the Commander of
the Air Force, as the case may be, the officer so appointed shall from
the date of such appointment, be deemed to continue as a member of the
regular Force of the respective force to which he belonged prior to such
appointment, notwithstanding anything to the contrary in the Army Act
(Chapter 357) the Navy Act (Chapter 358) or the Airforce Act (Chapter
359) as the case may be.
Section 2 (4) The Chief of Defence Staff shall, while so serving in
the office of the Chief of Defence Staff, hold the rank of General in
the case of an officer of the Army, Admiral in the case of an officer of
the Navy and Air Chief Marshal in the case of an officer of the Air
Section 3 (1) The Chief of Defence Staff shall, subject to the
pleasure of the President hold office for a term of two years.
Section 3 (3) The Chief of Defence Staff may by letter addressed to
the President in that behalf tender his resignation from the office of
Chief of Defence Staff, at any time before the expiry of his term of
Section 3 (4) Notwithstanding the provisions of sub-section (3), a
Chief of Defence Staff who tenders his resignation, shall not be
relieved of the duties of his appointment, until the acceptance of such
resignation by the President is notified to him in writing.
Regretfully this writer has not been able to obtain the date of the
acceptance by the President of the resignation of the General Fonseka
from office as Chief of Defence Staff. The Centre for Policy
Alternatives Director referring to the above has mentioned in the
article the date of his retirement as July 15, 2009 which is not the
date of resignation from office of Chief of Defence Staff. I do not
intend to add anything more as this matter is sub judice.
An officer of the Armed Forces under the provisions of the Army Act
and regulations enjoy greater privileges than an ordinary citizen under
the civil laws.