A non judicial pronouncement by ex-CJ

Gomin DAYASRI

The former Chief Justice Sarath N Silva appearing on the platform of Sarath Fonseka has made a bizarre statement relating to the arrest of the former Army Commander/ Chief of Defence Staff.

It appears that he has utilized the opportunity to stricture the present Supreme Court judges (Bandaranaike J, Siripavan J and Ekanayake J) for post postponing the case till April. Strangely Sarath N Silva has forgotten to state that the date was fixed with the consent of counsel for both parties. Surely if counsel for either party wanted the case expedited they had the opportunity to make such an application! Applications of such nature are made frequently by counsel and allowed.

Again Sarath N Silva states this Fundamental Rights application should be completed in two months. When Sarath Silva presided over the Supreme Court hardly any Fundamental Rights application that was argued in Court by counsel were completed in two months of filing the petition and dragged on for months and years; of course no fault of any judge including Sarath N Silva. In fact this case was adjourned with the consent of parties after the making the interim order on the arrest which again has been overlooked by Sarath N Silva. As a practice after an interim order is made, a FR case is adjourned in the Supreme Court.

Again Sarath N Silva is silent on the fact that there is a judicial pronouncement by the Supreme Court on the arrest of Sarath Fonseka wherein it stated, "Court is of the view that this Court is not in position to consider the grant of interim relief at this stage. In the circumstances the interim relief sought in terms of (j)(i) is refused."

It is an unfortunate but oft repeated practice in our society for predecessors to fault the successors; an act scorned in the teachings of the Buddha of which Sarath N Silva is supposedly to be well versed.

The considered pronouncement made by a bench of three judges on a Fundamental Rights application made by Sarath Fonseka to the Supreme Court is the preferred view, on the law, to that of his spokesman Sarath N Silva.

He also has stated the arrest was not in terms of the criminal law as he had not been informed of the reasons of the arrest and it was not carried out by a police officer.

This was an arrest made under the military law, which was applicable to General Sarath Fonseka because in terms of the Chief of Defence Staff Act No 35 of 2009 under which he held office, he was deemed to continue as a member of the regular force holding the title of a General, in terms of the aforesaid Act.

In the Army Act it is stated that action can be taken even after a person is retired from service, for an offence committed while in service for a defined period. These provisions enable the military law to be operational to a person who had retired recently from the position of Chief of Defence Staff.

Furthermore Sarath Fonseka was informed of the reasons for his arrest as stated by the officers who arrested him.

Sarath N Silva also states that the arrest is unjustifiable in terms of international law. There are many judicial decisions including those of Justice Sarath N Silva where it stated the law of the land is the supreme law of Sri Lanka over the provisions in treatises or provisions in international law. Undoubtedly in Sri Lanka the laws of Sri Lanka take precedence over foreign laws.

In fairness to Sarath N Silva, a man of integrity, the opinion expressed should be considered more as a political opinion than an unbiased legal opinion. Had he opted to give a strictly legal opinion it would have been of a better quality and therefore at least, he deserves sympathy.