General Fonseka and the Election

Last week, in the first three paragraphs of this column, I made the point that despite rumours of General Sarath Fonseka’s impending entry into politics, there was a legal impediment to him doing so, because serving military officers are not allowed to resign as and when they want. What I said last week was that According to article 3(3) of the Chief of Defence Staff Act No 35 of 2009, the CDS may at any time resign from his position by letter addressed to the president. However, according to article 3(4) of the CDS act, the resignation will not take effect until the president accepts the resignation in writing. The question I raised was, what if the president does not accept the resignation, or sends the letter accepting the resignation only after nomination day? The point I made last week was that all this speculation is uncalled for, and that we have to wait for Nov. 15 until the announcement of an election is made at the SLFP convention, and then we have to wait and see who will be legally in a position to hand in nominations before the end of the deadline.

A bombshell

This simple point seems to have had an explosive effect, as many people seem to have been discussing things without taking the legal aspect into consideration at all. After my column appeared in print last Sunday, I have been fending off questions all week about what I said. This has also become the headline story of a Sinhala weekly. The most common reaction from both sides of the political divide to the point I raised was incredulity. Most responses that I got was, "How can that be so?" "It can’t be!" For the pro-UPFA types, this was too good to be true. For the pro-UNP types, this was too devastating to believe. Many argued that I could not possibly have got it right and that there should be ‘some law’ or a fundamental right that would enable General Fonseka to resign and contest. So this week, I thought of doing a more detailed exposition of the situation. Nobody seems to have even being thinking of this aspect in the general euphoria or anxiety as the case may be, surrounding the emergence of a possible challenger to President Rajapaksa.

According to the articles of the CDS Act quoted earlier, the president has the sole discretion to accept the resignation of the CDS or not and the president does not have to give any reasons for his actions. Some of those who spoke to me after reading last Sunday’s column pointed out that General Fonseka has already written to the secretary to the president saying that he will not be seeking an extension of his term which is set to expire in December this year and that thereafter he will be free to contest. There were in fact some media reports to the effect that the general had informed the president’s secretary that he will not be seeking an extension of his term of office. However, with regard to this, the following points have to be taken into account.

* As Army commander, General Fonseka, was on an extension of his period of service which was set to expire in December this year. But before his extension expired, he was promoted to the position of Chief of Defence Staff.

* Once he is appointed as Chief of Defence Staff, he comes under the Chief of Defence Staff Act No: 35 of 2009.

* According to article 3(1) of the CDS act, the Chief of Defense Staff in the first instance is appointed for a period of two years. There is no provision in the act where a CDS can be appointed for a period lesser than two years in the first instance.

* When the CDS is appointed for a fixed term of two years, the nature of the appointment is so fixed that if the serving CDS dies, resigns or is incapacitated, according to articles 3(5) and 3(6) of the CDS Act, another officer will be appointed to only to serve the remainder of the interrupted term – that’s how fixed this appointment is.

* It should be noted that when General Fonseka was appointed CDS, this is a new appointment valid for two years and not an appointment made for him to stay out the remaining period of his extension as Army commander. Even if he has written to the president’s secretary, as media reports said, to the effect that he will not be seeking an extension of his previous extension, that does not have any validity because he is no longer on any extension. That ceased when he accepted the newly created post of CDS.

* At present, while General Fonseka serves as the CDS, he also remains the senior-most officer in the Sri Lanka Army according to article 2(3) of the CDS Act. The point to note is that he is not the CDS because he is still in the Army, but the other way about. He is the senior-most officer in the army ranking above the army commander because he is the CDS. His position as the senior-most army officer is now an ex-officio position that comes automatically with the position of Chief of Defence Staff.

* There is therefore, no need to ‘extend’ his service in the army for him to remain as CDS. Conversely, the expiry of the extension he received as army commander has no bearing on his position as CDS.

* There are some, especially in the UNP, who say that even though Fonseka was appointed CDS the position has not been gazetted and therefore when his term of extension as Army Commander ends in December, he will be free to contest. The fact however is that section 1 of the CDS Act became operational on the day the Speaker certified the act as having been passed. The very next day, on July 10, the president issued Gazette notification 1609/21 declaring the remaining provisions of the CDS Act operational. So the CDS Act is fully operational as at present and General Fonseka is serving as the first CDS appointed for a period of two years.

The position

It might be germane at this point, to say something about the position of Chief of Defence Staff. The position of CDS in Sri Lanka is modelled on the position of Chairman of the Joint Chiefs of Staff of the US military. In the USA, the Chairman of the Joint Chiefs of Staff is the senior-most military officer in America. The newly created post of Chief of Defence Staff in Sri Lanka is not an ad hoc arrangement as was the previous position of Joint Operations Commander. In the old system, any officer, even a retired officer, can be appointed Joint Operations Commander. When that position was first created by the J.R.Jayewardene government, they brought General Cyril Ranatunga from retirement to hold that position.

Not so the present position of Chief of Defence Staff. The present CDS position is open only to a tiny elite – the three service commanders of the army, navy and air force. No one other than a serving service commander (at the time of appointment) can be appointed CDS. Not even a retired service commander can be appointed to this post. Besides, the powers of the Sri Lankan CDS is equivalent in all respects to the American Chairman of the Joint Chiefs of Staff. In the USA, as in Sri Lanka, the CDS cannot directly command the three services under him and he works through the respective service commanders.

In the US, the Chairman of the Joint Chiefs of Staff, works under the supervision of the Defence Secretary and the CDS does the same in Sri Lanka. The functions assigned are almost identical. Even protocol wise, the American Joint Chiefs of Staff can be described as the ‘first soldier’ of the USA just as the CDS is the ‘first soldier’ of Sri Lanka. So the position of CDS is a very respectable, prestigious position. When the position of CDS was created in Sri Lanka, the three service commanders of the time (including General Sarath Fonseka) were involved in the process of drafting the CDS law.

Despite all this, what we have is an obviously unhappy CDS. The first issue raised was being appointed CDS too early. The expected date was December 2009 - when his term of extension as army commander was due to expire. For that perhaps, he is entitled to have a grouse. The second point of contention was that his chosen successor was overlooked in favour of the present army commander. On this, there is no reason to have a grouse because once you leave an institution, you don’t try to have your friends succeeding you. No government will countenance a patronage system where outgoing service commanders will recommend their own successors. It is precisely to prevent this ‘buddy system’ that American law stipulates that the person appointed to the position of Defence Secretary in that country should not have served in any armed service during the past ten years – so that he’ll not have any old friends left in the military by the time he becomes Defence Secretary.

The row

Apart from this, there appear to have been a series of minor irritants such as the placing of photographs at the Army 60th anniversary exhibition. The latest such fracas is over whether it’s the Sinha Regiment (General Fonseka’s regiment) or the Armoured Corps (the present army commander’s regiment) that should be manning the gate at army headquarters! So problems certainly do exist. Intra-service and inter-service rivalry has always been a problem in armed services the world over. In the USA, the very reason the position of Chairman of the Joint Chiefs of Staff was created was to minimize rivalry between the various branches of the armed services and to facilitate joint action. The supreme irony is that the Sri Lankan version of the same position, has served not to eliminate rivalries but to exacerbate them!

Regardless what problems there may be, there is what is possible and not possible according to the law. Ultimately, it’s the law that will prevail. The constitution of Sri Lanka, (Articles 91 and 92) stipulates who may or may not contest parliamentary and presidential elections. Article 91d(xi) is very clear that no member of the regular force of the army, navy or air force can be elected to parliament or the presidency. For that matter neither can police officers or public officers exercising police functions. This would make officers of the Central Environmental Authority who are vested with police powers to arrest illegal sand miners also ineligible to contest elections! Government servants and even public corporation employees above a certain salary scale are ineligible for election. Lower level government servants and corporation employees may contest elections, but according to article 102 of the constitution, even they have to be on leave and not discharge any of the functions of their office from nomination day until the end of the election.

Article 11 of the Presidential Elections Act No: 15 of 1981 says that nomination for presidential elections can be accepted only from those eligible to be elected. So a serving member of the armed services cannot hand in nominations. According to the Army Act No: 17 of 1949, once a recruit signs the necessary papers and is enlisted, he has to serve the period of original enlistment. This period at present is for five years. Some men and officers opt to retire after five years with a pension proportional to the period served as the case may be, or they may opt to continue for another term. Once you agree to serve, you cannot change your mind midstream. The military is one job where one cannot simply join and leave as and when you want.

Every army officer is appointed by commission under the hand of the president. According to article 11(2) of the Army Act, if a member of the regular or volunteer force wishes to resign his commission, he has to tender his resignation to the president but he will not be relieved of his duties until acceptance of his resignation is published in the Gazette. If an officer or soldier leaves after the period of original enlistment, that would be considered retirement. But it is extremely difficult to leave before the period of enlistment is over. Any soldier can contest an election after he leaves the army having completed his period of enlistment and retired, prematurely or otherwise. But if a serving officer wishes to contest an election and seeks to leave the army in the middle of his period of enlistment, that will be possible only if the president agrees to it.

Two year term

This is the same rule to be found in the CDS Act. Article 3(1) of this Act says that the CDS will be appointed initially for a period of two years. Article 3(3) says that if the CDS wants to resign before the end of his expiry of his term, he has to address a letter to the president. Article 3(4) says that a CDS who tenders his resignation shall not be relieved of the duties of his appointment until acceptance of such resignation is notified to him in writing. When I published these sections of the CDS Act last week, many were surprised and did not believe that the CDS simply could not resign as and when he wanted. They should not be surprised. The CDS is a military position and military law applies to this position as much as it does to any other military officer. Perhaps more so in this case because the CDS is the ‘first soldier’ in Sri Lanka. There were those who asked me whether there was no other law which would oblige the president to release a military officer who wishes to contest an election.

The point here is that article 14 of the Chief of Defence Staff act No: 35 of 2009, very clearly states that "The provisions of this act shall have effect notwithstanding anything contained in any other written law, and accordingly, in the event of any conflict or inconsistency between the provisions of this act and such other written law, the provisions of this act shall prevail". So even if there was a law that obliged the president to release a military officer who wished to contest an election, such law would become null and void in relation to the position of the Chief of Defence Staff. In any case, the fact is that there is no law that obliges the president to release a military officer to contest elections. If such were the case, over the past two decades there would have been literally hundreds of independent lists being fielded at all elections from the local government level upwards as a means of legally getting out of the armed forces before the period of enlistment came to an end.

So in effect it’s not General Sarath Fonseka or the UNP or the JVP that will decide whether a war hero will contest the next presidential election, but the president himself. It appears that the only available challenger for the presidency is completely under the control of the incumbent president – a unique situation. There are some interesting scenarios that can be considered.

The first point to consider is what if Mahinda Rajapakse does a ‘Ranil Wickremesinghe’ to Sarath Fonseka? Everybody knows that Wickremsinghe is hanging on to the UNP leadership by making use of a loophole in the party constitution. Likewise what if MR makes use of Article 3(4) of the Chief of Defence Staff Act and does not send the letter accepting the resignation of the CDS? Then General Fonseka will not be in a position to hand in nominations. Some say that if Fonseka tenders his resignation, the president will accept it because not accepting the resignation may give people the impression that he was scared of Fonseka and that would make the president look bad.

When deciding on political strategy, one must be prepared for the worst possible scenario. The first thing to realize is that Mahinda Rajapakse is not a Bodhisatva. Even J.R.Jayewardene who openly claimed to be a Sotapanna, deprived his main opponent, Mrs Sirima Bandaranaike, of her civic rights and then held a presidential election which he won; and he was not in the least bashful about what he had done. When Janaka Perera wanted to contest a provincial election, the Rajapsksa government refused to give him any more security than what an ordinary PC candidate was entitled to. This whole drama was played out in public with everybody commenting on it; but the government was not in the least ashamed about what they were doing.

The ‘what if’ factor

In this case there is nothing as half as messy as that involved. Mahinda won’t be depriving anybody of his civic rights nor will he be denying security to anybody. On the contrary MR will in fact be keeping someone in a very prestigious and exclusive job with all the perks and privileges including official cars, residences, personal staff, a security contingent and social standing as the first soldier of the nation, not to mention diplomatic immunity when overseas. All he will have to do if he receives a letter of resignation from Fonseka is to not write a reply. He can simply keep quiet without saying a word; or he can come up with various reasons as to why the CDS cannot be released from his duties at this particular moment. One of the reasons he can, and might well cite, will be the narrow shave that the CDS had while in the USA.

The president can always claim that as the commander in chief it is his duty to protect top secret information and all those who have such information and therefore in his considered opinion the CDS has to remain where he is until the international storm dies down. Or he can say that politics is for politicians and not for serving military officers and flatly refuse to release any serving military officer to contest any elections on the grounds that if he creates a precedent where the period of enlistment rule for military officers can be circumvented by contesting elections, future presidents may not have any officers or soldiers left to fight wars because standing for election will be used as a loophole to get out.

This latter point is particularly important. The serving officer seeking to leave service to contest an election is none other than Sri Lanka’s first soldier himself. The example that will be set will not be to the benefit of this country. In any event the bottom line is this. The president has the power to refuse to allow Fonseka to resign. If he keeps out his main opponent by refusing to accept his resignation, it will look bad among the public but Rajapakse will win the election easily and he will be sitting in the president’s chair for the next seven years. What counts in this game of realpolitik, is getting elected.

The fact is that JRJ was no less a president despite Sirima Bandaranaike having been kept away from the fray in 1982. If someone is trying to get into politics on the basis of goodwill attaching to the conclusion of the war, that goodwill will have to be harvested soon. In another seven years, credit from the war alone will not be enough to launch a political career. So the desire of certain forces to bring Fonseka into politics now rather than later, is in this context, understandable. However, the mistake made was in accepting the position of CDS, instead of opting to retire the moment the president wanted to promote him to that position.

There are some ‘what if’ questions that need to be answered. Some in the UNP say that once a war hero has come into politics and the people have surrounded him, all these ‘law points’ will come to naught. They seem to believe that ‘people power’ would be able to overturn the legal obstacles. But the fact is even if the whole country erupts in demonstrations, the commissioner of elections cannot accept nominations from a serving military officer. Another question is whether a case filed in court will be able to obtain Fonseka’s relase. That seems unlikely because Articles 91 & 92 clearly show that serving military officers do not have a fundamental right to contest elections. The courts have no way of giving military officers leave to contest elections when the constitution says the contrary.

Another question that was raised in UNP circles is what if Fonseka himself openly comes out and gets onto the opposition political platform while still a serving military officer? He can always claim that he sent in his resignation but that was not accepted, say these UNPers. They actually expect Fonseka to emulate Nishantha Muthuhettigama! Who is the military officer or war hero who is going to make an unseemly spectacle of himself in public in that manner? And such public scenes will not serve any purpose anyway because tantrums cannot change the law.

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