Fonseka’s arrest wrongful - Counsel


by Chitra Weerarathne

A junior officer of the army cannot arrest the Army Commander, according to the Military Act. Hence, the arrest of General (retired) Sarath Fonseka was wrong in law, said Romesh de Silva PC, in the Court of Appeal yesterday, when he appeared for Fonseka, who had challenged, in the Court of Appeal, the Jurisdiction of the Court Martial to hold an inquiry against him.

Romesh de Silva, PC, appeared with Viraj de Silva for Fonseka.

Romesh de Silva said that section 8 of the Army Act permitted the President to appoint







a suitable person to command the army.


It did not say that the person needed to be an officer of the Army to be the Commander.

He said the Officers of the army took oaths under Section 9 of the Army Act. Section 10 said that officers held office at the pleasure of the President. Soldiers were dealt with in part 3 of the Army Act. Officers were referred to in part 2 or 3. The Commission was important to the officers.

Justice Hettige: Do you mean to say that the Commander it not under the Military Law.

Romesh de Silva: That is so.

Romesh de Silva said that according to the Military Law, arresting and charging should be done by the superiors. Nobody is superior to the Commander.

Justice Hettiage: What law is he subject to?

Romesh de Silva: The normal Law.

Counsel said that the army law did not permit a junior to arrest a senior. Accordingly the Army Commander who had no superior in the Army could not be subjected to Military Law.

Justice Hettiage: It does not mean that he is above the law.

Romesh de Silva: He is subjected to the normal law. I do not say he is above the law. He is under the normal civil law.

The President has immunity.

Justice Marasinghe: That is defined in the Constitution, what you say about the Army Commander is not so defined in the Constitution. The Constitution does not say that the Army Commander is immune to the Army Act.

Justice Hettige: The President as the Head of State can convene a Court Martial to try the Commander or any officer of the army.

Romesh de Silva: The question here is that there is no superior military officer to arrest the Commander.

Counsel said that the Chairman of the Court Martial, Major General Pieris, had been demoted from the mainstream to the common stream of the army, by the applicant Fonseka, when he was the Commander. The demotion had been on disciplinary grounds.

He said that General Sarath Fonseka had held that Major General Hathurusinghe, a member of the present tribunal, has been associated with an LTTE terrorist. This objection was over-ruled by the Judge Advocate. Gen. Fonseka’s allegation had not been contradicted.

A man’s liberty is at stake. You should not hang a man because he contested against someone, the counsel said.

Counsel de Silva said that the third member of the tribunal, Major General Dawlugala, had personal animosity towards Fonseka and could be easily influenced by the Secretary Defence.

The objections of bias against the tribunal members had been overruled, without any contradictions, he said.

Deputy Solicitor General, Sanjay Rajaratnam, appeared with Senior State Counsel Nerin Pulle and State Counsel Shamindra Wickrama for the Commander of the Army, Lt. General Jagath Jayasuriya, the Judge Advocate, Deputy Solicitor General, Shamindra Fernando and the Attorney General who had been made first, fifth and sixth respondents in the petition.

The Bench comprised Justice Sathya Hettige (President), Justice Rohini Marasinghe and Justice Sarath de Abrew.

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