A peep into relevant part of Army Act, as recording of evidences planned
By K.T.Rajasingham
12 February, (Asiantribune.com):
It is now learnt that Chief of Staff of the Army will be recording summary of evidence from Sarath Fonseka according to procedure adopted in a court martial. The Summary of Evidence has to be recorded under oath.
A peep into the relevant portion in this connection found under in the Subsidiary Legislation under the Army Act becomes essential, and they are given below:
48.(1) It shall be lawful for a commanding officer investigation a charge against a person subject to military law, adjourn such investigation for the purpose of taking a written summary of the evidence on oath or affirmation in the presence of the accused .
(2) At any hearing held for the purpose of taking a written summary of evidence referred to in paragraph (1), the following provisions shall apply:-
(a) The evidence of the witnesses who were present and gave evidence before the commanding officer, whether against or for the accused and of any other person whose evidence appears to be relevant shall be taken down in writing in the presence of the accused before the commanding officer or such officer as he directs.
(b) The accused may put questions in cross-examination to any witness, and the questions with the answers shall be added, in writing, to the evidence already taken down.
(c) The evidence of each witness when taken down, shall be read over to him, and shall be signed by him or, if he cannot write his name, shall be attested by his mark and witnessed.
After all the evidence against the accused has been given, the accused shall be cautioned thus:- “Do you wish to make any statement or to give evidence upon oath? You are not obliged to say anything or give evidence unless you wish to do so, but whatever you say or any evidence you give will be taken down in writing, and may be given in evidence.” Any statement or evidence of the accused will be taken down, but he will not be cross-examined upon it.*
(* If the accused is remanded for trial by court martial, no evidence shall be admitted at his trial of any statement which he may have made, or evidence which he may have given, at the taking of the summary of evidence before such caution was addressed to him.)
(d) If the commanding officer so directs, or if the accused so demands, the evidence of every witness, whether for or against the accused, shall be taken on oath or affirmation and the oath or affirmation shall be administered by the officer taking the summary in the same form and manner as such oaths and affirmations are taken by witnesses before a court martial.
(e) If a person cannot be compelled to attend as a witness, or if, owing to the exigencies of the service or on other grounds (including the expense and loss of time involved), the attendance of any witness cannot in the opinion of the officer taking the summary be readily procured, a written statement of his evidence purporting to be signed by him may be read to the accused and included in the summary of evidence:
Provided, however, that, if such person can be compelled to attend, the accused may demand that he shall attend for cross-examination.
(f) Any witness, who is not subject to military law, may be summoned to attend by order under the hand of the commanding officer of the accused. The summons shall substantially be in the form A set out in the Schedule hereto.
49. After the summary of evidence referred to in regulation 48 has been taken and considered by the commanding officer of the accused, he shall thereupon-
(a) remand the accused for trial by court martial ; or
(b) refer the case to the Commander of the Army for advice ; or
(c) if he thinks it desirable, and the accused is a soldier and has not himself elected to be tried by a district court martial, hear the case and dispose of it summarily.
50. When proposing to deal with a case summarily, a commanding officer shall satisfy himself that the evidence produced before him is sufficient to disclose the exact nature of the charge. If he is not so satisfied, he shall remand the case for further inquiries, so that the chair as entered in the guard report shall be substantially the charge on which the accused will be charged in the event of his electing to be tried by a district court martial under section 40 (3) of the Army Act.
- Asian Tribune -
Comments
An issue here is whether it
An issue here is whether it was politically wise to attempt trying the General for any crimes under Military law. Questions will be asked why this process was not carried out earlier. Of course an answer could be given that he was a Presidential candidate and therefore it would have been even more damaging politically to have tried him then. A Military law cannot be above the normal law of the land, so if he is tried and convicted under that law, he should have recourse to appeal to the Supreme Court, the highest Court in the country. Then, one can ask, why isnt he being tried before the Supreme Court in the first instance? That would have been better justice and potentially less damaging politically. The perception that is being created by the government action is that they are out to silence the General. This action might have the opposite reaction to what the government may have intended. The General might become even a greater hero thanks to the government unless there is credible evidence that will stand up not just before a Military Court but also the Supreme Court of Sri Lanka. It is not too late for the government to re think their strategy.
I agree with Raj G on this
I agree with Raj G on this matter. As Dayan Jayatilleke, former Sri Lankan envoy to the UN put it succintly, the GoSL handled this matter in a "ham-handed" manner and, in the process, has played into the hands of Sri Lanka's critics. But all these details seem beyond the comprehension of at least some people who surround Prez Rajapakse. But as President, Rajapakse has to take the blame for all these blunders.
Also, the conduct of Major General Manawaduge at the scene of the arrest, IF REPORTED CORRECTLY BY THE MEDIA, was deplorable, and that is putting it mildly. If correctly reported, this type of attitude by a Major-General shows the depths to which professionalism has sunk in Sri Lanka. And this deplorable slide in professionalism began with the third-rate politics that began to emerge in the 1950s.
More troubling, our lawyer President seems, probably, to have blundered again. A blunder that someone else with a passing knowledge of the law would have adroitly avoided.
To the best of my knowledge, and our lawyer-President may know something more on this matter, if the General is put on trial, he may be able to use very sensitive confidential info to which he is privy in order to bolster his defense. And this confidential and top-secret information may cause greater problems than simply embarrassment to the GoSL. This is the very reason that in the U.S. certain people have escaped prosecution: Because the harm caused by the revelation of certain information was greater than what could be gained by prosecuting someone.
In any case, I will not be surprised that if this blunder turns out to be worse than the one when the GoSL began rounding up people in Colombo hostels based merely on ethnicity. That episode, too, revealed Prez Rajapakse's woeful knowledge of the law.
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