Legality of Fonseka’s arrest

Vernon Botejue - Attorney-at-Law

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 anger

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 India.

In disarray

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 truth.

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 Election.

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.

Averting coup

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, 1962.

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.

Legal aspect

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 Force.

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 office.

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.