SWF’s Writ against CM 11
Act of President cannot be  questioned by Court - DSG

by Chitra Weerarathne

Deputy Solicitor General Buwaneka Aluwihare yesterday told the Court of Appeal that the conviction and the sentence, imposed by the court martial II on General Fonseka, has already been confirmed by the President, who has legal immunity by Article 35 of the Constitution of Sri Lanka. Hence, a Court of Law could not question an act of the President.

He also said that the petitioner has appealed to the Supreme Court pertaining to the membership of court martial II and that appeal is to be called on December 3, 2010.

General Fonseka has filed a Writ Application, in the Court of Appeal, seeking to quash the conviction and 30-month rigorous imprisonment sentence imposed by the Court Martial II. Fonseka was convicted in relation to chairing a tender board, which awarded a tender to a company in which his son-in-law had had an interest.

The President has even the power to vary a conviction and the sentence of a Court Martial, if he so wishes, the DSG said. Ministerial acts of the President, however, are not covered by the immunity, he added.

But, ministerial functions could be performed by someone else, other than the President. But, in the case of the confirmation of a Court Martial conviction and sentence, it could be done only by the President. Hence, it could not be challenged in a Court of Law, Aluwihare explained.

The confirmation of the conviction and the sentence in respect of the Court Martial had been done by the President, in his capacity as the President, Aluwihare said.

Court: When the President appoints a Supreme Court Judge, he does the appointment. He is not confirming the work of somebody else. It could not be challenged.

Aluwihare: A court martial conviction is conveyed to the President. He could confirm or quash it altogether.

Court: You say that the appointment of a Supreme Court Judge and the confirmation of a court martial conviction is the same thing?

Aluwihare: Yes, they both come within Article 35(1) of the Constitution.

Aluwihare said that members of the court martial and the judge advocate are appointed by the President. It is covered by Article 35. This was declared by the Court of Appeal in respect of a ruling Writ No: 350/10.

The DSG, in reply to a question by the Court, said that the decisions of the court martial can be challenged before a confirmation is made by the President.

Court: What if we quash the conviction?

Deputy Solicitor General: The confirmation by the President will still remain. The confirmation by the President cannot be touched.

It is matter for the Supreme Court to interpret Article 35 of the Constitution, Aluwihare said.

Court said that if there is a serious question to be decided on the issue of notice, the petitioner will file written submissions by December 8. The Attorney General will file the reply to that. The Writ Application by Fonseka, against court martial II will be mentioned next on December 15.

Buwaneka Aluwihare, the Deputy Solicitor General, appeared with Senior State Counsel Nawaz and Senior State Counsel N. G. Pulle, for the Attorney General.

Romesh de Silva PC appeared with Sugath Caldera and Viraj de Silva for the petitioner General Sarath Fonseka.

The Bench comprised, Justice Eric Basnayake and Justice Upali Abeyratne.

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