‘But who is to guard the guards themselves?’

A legal response to Sarath N. Silva, LLM. PC:

Thishya WERAGODA

“The basic question therefore arises as posed by Juvenal in the 1st Century A.D. who wrote the famous Latin phrase in a slightly different context which has been frequently cited thereafter, “sed quis custodiet ipsos custodes,” meaning, “But who is to Guard the Guards themselves? ... in my view the law itself is the instrumentality through which custodians are guarded.”

Sarath N. Silva, Chief Justice in H. Senerath v.

Chandrika Bandaranaike Kumaratunga, SC(FR)/503/2005,

SCM 03.05.2007 at p. 18

The feature article titled, ‘Arrest and Detention of Fonseka - a Legal Perspective’ authored by Sarath N. Silva, LL.M. PC, former Chief Justice of the Supreme Court of the Republic of Sri Lanka published in some Sunday newspapers on March 14, 2010 deserves critical review on the broad and sweeping comments and the unnatural interpretations given to substantiate his position in respect of the arrest and detention of Sarath Fonseka.

Like Silva, I wish to bring forth my humble understanding of the law and the interpretation thereof, without any “derogation of the lawful authority of any person or institution empowered to decide on the matter”. I wish to further include a caveat that I do not claim myself to be an expert in Constitutional Law or of Military Law and that my position is based on a simple reading of the provisions of the Law, the basic understanding of scheme of the Acts and furthermore on plain logic.

At the outset it must be stated that even though Silva has referred to the preamble and the provisions of the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights etc., it cannot be forgotten that whilst he was the Chief Justice of the Supreme Court, in Sinharasa’s Case (N. Sinharasa v. The Attorney General, SC/SPL/(LA)/182/99, SCM: 15.09.2006) he held that the Provisions of International Conventions which have been acceded but not adopted by domestic Legislation is of no validity. It is rather ironic that Silva has completely reversed his position to disregard international law and obligations (as in his judgement above) to refer and buttress his position using the same international law and obligations in support of saving Fonseka.

The crux of Silva’s article is found where Silva states that “The conclusion to be drawn that the Commander of the Army is not a person subject to military law and as such cannot be taken into custody, detained or tried by a Court Martial under the Army Act is consistent with the scheme of the Act itself.”

Silva’s position in the article seems to be threefold.

1. The Arrest and the continued detention of Sarath Fonseka is in contravention of Article 13 (1) and (2) of the Constitution of Sri Lanka and the provisions of the Code of Criminal Procedure Act No. 15 of 1979.

2. a. Sarath Fonseka during his tenure as ‘Commander of the Army’ was not a person subject to Military Law as per the Army Act of 1949. (Cap. 625)

b. Sarath Fonseka during his tenure as ‘Chief of Defence Staff’ was not a person subject to Military Law as per the Chief of Defence Staff Act No. 35 of 2009.

3. Sarath Fonseka being a Commander of the Army could not be arrested or detained or tried by subordinate officers.

Arrest and Detention of Sarath Fonseka and the applicability of Article 13(1) and (2) of the Constitution

Silva refers to Article 13 (1), which declares that “No person shall be arrested except according to procedure established by law. Any person arrested shall be informed of the reason for his arrest”, and Article 13(2), which declares that “Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge of the nearest competent court according to procedure established by law, and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of such judge made in accordance with procedure established by law.”

Therefore, Silva claims that Sarath Fonseka was not made by an officer authorized by the Code of Criminal Procedure, and thus a violation of Articles 13(1) and (2) of the Constitution and Article 9(3) of the ICCPR.

However, what Silva fails to do in this part of his analysis is firstly, to consider Article 15 (8) of the Constitution which declares that the “The exercise and operation of the fundamental rights declared and recognized by Articles 12 (1), 13 and 14 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 interests of the proper discharge of their duties and the maintenance of discipline among them.” This would necessarily mean that the rights guaranteed under Article 13(1) and (2) are subject to the Provisions of the Law in its application to members of Armed Forces. The Army Act declares who an Officer (Section 8) of the Army is, and who is subject to Military Law (Section 34) and the position in respect of a military officer who ceases to be a member (Section 57). Therefore, it is my contention that there is a clear case for the arrest, detention and trial by Court Martial coming within the ambit of Article 15(8) of the Constitution.

Silva unfortunately fails to consider that the arrest was made by the Provost Marshal, the highest-ranking officer of the Military Police of the Sri Lanka Army and purportedly for offences committed by Sarath Fonseka whilst he was a military officer.

Assuming (as the matter is sub judice) that in terms of the Army Act, Sarath Fonskea is deemed to be a person subject to Military Law, he may and could be arrested, detained, and tried under military law. If so, in such circumstances, the claim that Article 13(1) and/or (2) is violated, and the provisions of the Code of Criminal Procedure have not been followed, could not stand.

Silva, rightly points out that in these circumstances the “principal issue to be considered before one gets into the realm of offences, charges, and so on, is whether Sarath Fonskea was a ‘person subject to military law’ when he functioned as the Commander of the Army and later as the Chief of Defence Staff.”

Secondly, let us assume that Silva is correct in saying that Sarath Fonseka is a civilian and is not subject to military laws. In such an event, it is still ambiguous whether Sarath Fonseka’s arrest and detention would fall within the ambit of Article 15(7) of the Constitution which declares that “The exercise and operation of all the fundamental rights declared and recognized by Articles 12, 13(1), 13(2) and 14 shall be subject to such restrictions as may be prescribed by law in the interests of national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society. For the purposes of this paragraph ‘law’ includes regulations made under the law for the time being relating to public security.”

Therefore, the arresting authority still may be entitled to set up a defence that Sarath Fonseka’s arrest may be justified on grounds of interest of National Security and Public Order. This aspect should be an issue to be looked at in the Rights Applications filed on behalf of Sarath Fonseka in the Supreme Court.

Thirdly, Silva fails to differentiate, whether the mode of arrest, as distinguished from the arrest itself, was in contravention of the provisions of the law. It may be that a person is arrested for a legal purpose but the manner in which he was arrested was illegal. This aspect, in my opinion is a matter worth being reviewed in a Rights Application in terms of Article 126(2) of the Constitution.

Was Sarath Fonseka a person subject to Military Law during his tenure as Commander of the Army?

Silva, referring to Cap. 625 of the unofficial Legislative Enactments of 1980 states that the Commander of the Army is neither an enlisted soldier nor a commissioned officer since the President of the Republic in terms of Section 8 of the Army Act appoints a ‘fit and proper person to command the Army.’ Silva’s

 contention therefore seems to be that once appointed as the highest-ranking officer of the Army, the Commander of the Army is not a person subject to the Provisions of the Army Act. Silva states, “Hence one needs not even be a commissioned officer to be appointed to command the Army. Even after appointment the Act does not describe as an officer. But specifically states that the person appointed shall be designated Commander of the Army. Hence the Commander of the Army is not a person subject to Military Law.” It is with utmost respect to Silva, I state that this position is unthinkable.

Silva fails to consider that Section 8(2) itself holds the response to this ill-founded position. It states, that the person who is appointed to command the Army is designated as the ‘Commander of the Army.’ It is not a miraculous ‘supernatural’ or ‘supra-natural’ position but the designation of the highest-ranking officer of the Army. Silva should need no reminder that the Army Commander is a creature of the Army Act and it would be a ‘frankenstein’ if ever considered as being above the provisions and not subject to the very provisions of the Act which created such post.

It is cardinal in law that a creature cannot be larger than the creator. Yet in this event, Silva is proposing the very opposite of this principle. To say that a military office created by the Army Act is not subject to the military law is akin to saying that the President of the Republic is not subject to the Provisions of the Constitution. Silva may possibly have forgotten the very doctrine of Public Trust which he, as the then Chief Justice, readily used to control the abuse of power by State Organs.

If for a moment, Silva’s position is to be accepted, then a military officer with over three decades of service upon his elevation to the rank of Commander will no longer be subject to any military law. If so then Sarath Fonseka, Chief of Staff, was a person subject to military law but Lieutenant General Sarath Fonseka, Commander of the Army is not subject to military law.

Upon ascending to the highest office, a commissioned officer ceases to be a person subject to the military law, but has gained more power and transformed into a ‘supernatural’ or a ‘supra-natural’ divine being in the military hierarchy. Surely, this is not the scheme of an Act, as Silva claims, drafted to maintain the highest levels of discipline in the country. Silva’s interpretation therefore leaves much to be desired.

Let us once again assume that Silva’s contention is correct and that the Commander of the Army appointed by the President is only a ‘fit and proper person to command the Army.’ Silva may be correct in stating that any person who is not a military officer may be appointed to command the army if the President of the Republic is of such view. If Silva’s contention is correct, the President of the Republic may even appoint a civilian like Silva to command the Army, if the President is of the view that he is fit and proper to command the Army.

However, the question here would be to which category Sarath Fonseka would fall? The circumstance of Sarath Fonseka’s appointment is not similar to that of the President of the Republic appointing a Civilian (as per the interpretation of Silva) to command the army.

Sarath Fonseka is not a person who was parachuted from the civilian sphere into the military hierarchy as Commander of the Army. He is a person who had risen through the ranks to that post. Whether Sarath Fonseka was the Commander of the Army or the Chief of Staff or only a Division Commander, his underlying rank as a Commissioned Officer continues until such commission is removed by way of the Warrant being discharged. There is no provision in the Act which Silva could use or has used to buttress his position that the Commission is discharged upon being appointed the Commander of the Army. Therefore it is my view that the title Sarath Fonseka received as Commander of the Army is immaterial to the commission he held.

Silva also fails to refer to Section 9 of the Army Act. (Cap. 357, Legislative Enactments 1956) Sarath Fonseka was a Commissioned Officer appointed in terms of Section 9(1) by the President and who took and subscribed to an oath in terms of Section 9(2) and such commission continues to be in force at present. As such, the contention that Sarath Fonseka is not subject to military law upon his promotion to the rank of Commander of the Army is frivolous and defies rationale.

Further if Silva’s contention is correct, Fonseka’s final rank would be Major General and after his demise he may be promoted posthumously to Lieutenant General, for Sarath Fonseka would have ceased to be a commissioned officer at the time of his appointment as the Commander of the Army.

If so Sarath Fonseka should not even be entitled to claim himself to be the first living Four Star General of this country as only commissioned officers of the Army and no others are entitled to hold such rank.

The response to the ‘principle issue to be considered’ as framed by Silva, therefore is that the Army Act is patently clear. Section 34 states that “for the purposes of this Act, “persons subject to military law” means a person who belongs to the following classes of persons :-

(a) all officers and soldiers of the Regular forces;

(b) ...

It is self evident that Sarath Fonseka did not cease to be an officer of the Army upon being promoted to the office of the Commander of the Army. Not only was he promoted in Office, he was promoted in Rank from Major General to Lieutenant General and subsequently to the Rank of General of the Army. No person who is not a commissioned officer of the Army could be promoted in Rank in this manner. Silva, in his hurry to justify himself sadly fails to understand this logical aspect. Silva’s thesis therefore, to use his own words is “inconceivable and inconsistent with the scheme of the Act.” and is ‘preposterous.’

Was Sarath Fonseka a person subject to Military Law during his tenure as Chief of Defence Staff?

Having addressed the proposition that Sarath Fonseka is not subject to military law in terms of the Army Act, the next issue to address is whether Sarath Fonseka did cease to be a military officer during his tenure as Chief of Defence Staff (CDS) under the Chief of Defence Staff Act No. 35 of 2009.

Section 2(1) of the CDS Act declares the manner in which the CDS is to be appointed. He is to hold office for a period of two years subject to the pleasure of the President and may be removed by the President without assigning cause.

Section 2(3) of the Act states that a Commander of the Tri Forces maybe appointed as the CDS and upon appointment shall relinquish his position as a Commander of the Army, Navy or Air Force as the case may be. The Section provides that “notwithstanding anything to the contrary in the Army Act (Cap. 357)... the person so appointed as Chief of Defence Staff, for so long as he holds such position continues to be a member of the Regular Force” of such force he was attached to prior to his appointment as CDS. The Section further provides that despite the person so appointed as CDS relinquishing his post as Commander of one of the Tri Forces, he is deemed to continue to be a member of the Regular Force of such Force.

Therefore, it is submitted that a Commander of one of the Tri Forces once appointed as the CDS shall continue to be and shall be deemed to be despite him relinquishing his post as Commander of one of the Tri Forces, a member of the Regular Force of the Force to which he belonged at the time of appointment as CDS.

It is my position that if a Commander of a Force is subject to military law as argued above, and upon his elevation to the post of CDS, is deemed to be a member of that particular force, then there is no further deeming necessary to state that the CDS is also subject to the military law of that particular force. The CDS being subject to military law is a necessary corollary to him being deemed a member of the Regular Force of that particular Force.

Silva’s position however seem to be that Sarath Fonseka as CDS was only deemed to be a member of the Regular Force but not deemed as a person subject to military law. My response would be that, he need not look further than Section 3(1) of the Army Act which states that the Regular force shall consist of Officers and Soldiers appointed or enlisted for the purposes of rendering continuous service. If so, then Sarath Fonseka was an Officer of the Army during his tenure as CDS. If he is deemed as a member of the Regular Force which comprises Commissioned Officers, then he is subject to military law in terms of Section 34 of the Army Act.

Could Sarath Fonseka being a Commander of the Army be arrested or detained or tried by subordinate officers?

Silva states in his article that,

a. “the Commander is the highest ranking officer and as such there would be no officer senior to him who could order that the commander be taken into custody.”

b. “only the commanding officer of that person is empowered to investigate the charges against him and to take steps for a trial by Court Martial.”

Silva goes on to state that “it is inconceivable and inconsistent with the scheme of the Act to assume that the Commander of the Army is a person subject to military law as defined in the Act who may be taken into military custody, detained, charged, tried and sentenced at a Court Martial.”

Silva seems to be taking the concept of the ‘Supernatural’ or ‘Supra-natural’ Commander of the Army concept one step further and suggesting that the Commander of the Army is immune from being arrested, detained and tried, simply because he is the Commander of the Army.

The pertinent question in my mind at this point is, if Silva’s contention is right, what law would apply to the Commander of the Army? Or would no law apply to the Commander of the Army? Is the Commander of the Army an authority beyond the Army itself? Is the Commander of the Army a supreme being not amenable to the laws that his subordinates are subject to, and he was subject to until the time of his promotion in office? Does the Commander of the Army cease to hold his Commission upon elevation to that post? If so how does he hold the Rank of Lieutenant General or General? Silva has not foreseen the anomaly that would be created if his position is in fact deemed correct.

Another aspect that begs attention is the legal concept of the Creature not being greater than the creator. Silva should be well aware and cannot be unaware of this cardinal principle of law. On numerous occasions where Silva himself has been part of the deciding bench of the Supreme Court, has held the concept of accountability and responsibility of State Organs and officials. On several occasions Silva CJ (as he then was) held that not even the President of the Republic can seek refuge in the immunity provided in Article 35 of the Constitution, if the President is acting in contravention of the Constitution. Silva CJ (as he then was) critical of abuse of power, was a strong advocate of the public trust doctrine and delivered and/or was associated with several landmark judgments in this aspect. (See: H. Senerath v. Chandrika Bandaranaike Kumaratunga [SC(FR)/503/2005, SCM 03.05.2007]) It is rather unfortunate that the same Chief Justice upon retirement is promoting the proposition that an officer appointed to serve the public, is in fact, above the law that appoints him.

Silva CJ in Senerath v. Kumaratunga states “Therefore, in my view, the law itself is the instrumentality through which custodians are guarded. This is the basic postulate of the Rule of Law.” If this is the legal position in respect of the Rulers of the Land, surely it must be the same to lesser officials like the Commander of the Army. How is such a paradox possible? If possible, is it a safe? Therefore what is ‘inconceivable and inconsistent’ with the scheme of the Act’ is the preposterous proposition made by Silva.

Silva also fails to refer to Section 6(2) of the Subsidiary Legislation under the Army Act (Court Martial - General and District Regulations) which states that “The members of a Court Martial for the trial of an officer shall be of an equal, if not superior rank to that office unless in the opinion of the convening officer to be stated in the order convening the Court, officers of that rank, having regard to the exigencies of the service, are not available.” (source: Sunday Times March 14, 2010, at p. 10)

Could it ever be argued by a person that “I may have committed a crime, but you cannot try me because I am superior to you in Rank”? It would be contrary to all norms of law and justice to propose such an argument.

Silva should be reminded of the nursery rhyme “Stop says the Red Light, Go Says the Green, all must obey them, even the Queen”. Silva whilst the Chief Justice was very vocal in implementing the Rule of Law and has been instrumental in entrenching the phrase ‘no one is above the law’ in many judgments he has delivered. It may be a good time to remind him and refer him to some of his own Judgments.

Could Sarath Fonseka be tried at a Court Martial after his retirement from the Military?

Silva states that “It would be preposterous to suggest that the Commander who is thus not liable whilst in service becomes a person subject to military law and thereby becomes liable to be taken into military custody, detained, tried and sentenced by a Court Martial after he relinquished office.”

Silva continues to approbate and reprobate on the issue of whether Sarath Fonseka is a commissioned officer or not. Surely Silva is aware of the legal position in respect of approbation and reprobation and that it is not permitted practice.

On the one hand Silva seem to be suggesting that Sarath Fonseka is not subject to the military law, but on the other Silva talks of the 4 star General who is supreme in the Army hierarchy.

Section 57(1) of the Army Act states that “a person subject to military law commits any offence and thereafter ceases to be a person subject to military law, he may be taken into and kept in military custody and be tried and punished for that offence by a court martial.”

It is therefore evident from the provision that irrespective of whether a person is in active service or has relinquished or ceased to be an officer, he may be arrested, remanded and tried at a Court Martial. This provision would therefore, also answer Silva’s first issue in respect of violation of Fundamental Rights guaranteed under Article 13(1) and (2).

However, the proviso to Section 57(1) states that a person who has ceased to be subject to military law shall not be tried after the lapse of six months from the date of offence unless such offence is an offence of mutiny, desertion or fraudulent enlistment.

If Silva’s argument was that the purported offences were committed over six months ago and therefore are prescribed in terms of Section 57(1) of the Army Act, then that may hold water. However, Silva’s argument does not appear to be that of prescription. It appears that Silva’s position is that Sarath Fonseka was never subject to military law upon assuming the office of the Commander of the Army and thereafter the office of CDS and thus, is not subject to military law upon his retirement. As noted above, Silva’s argument in this aspect is flawed.

In conclusion I wish to state that it is rather disappointing that a legal luminary of Sarath N. Silva’s stature has decided to give such an interpretation of the law he once swore to protect. Like Silva, my only intention in writing this response is to ‘kindle the compassionate reflections of right thinking people on an issue’ of legal concern.

The writer is an Attorney-at-Law