On My Beat: Fonseka within time limit to be tried under Army Act
By K T Rajasingham
Colombo, 15 February (Asiantribune.com):
Many have raised doubts whether the Retired General Sarath Fonseka can be charged under the Army Act, who was appointed as the Chief of Defence Staff on 15 July 2009 under a separate Parliamentary legislation.
Even if he has to be charged under the Army Act, many point out that it has to be taken into account the last date he held his position as the Commander of the Sri Lanka Army and that was 14 July 2009. The six months period stipulated in the Army Act 57 (1) expires by 14 January 2010. Therefore the retired General Sarath Fonseka has to be charged only under the civil law - the normal penal code.
This is an argument that is going around not only in Sri Lanka, but also internationally. Based on this argument journalists all over as well as human right organizations and also leaders of many countries have commented and criticized Sri Lanka Government and the President, as taking revenge against Sarath Fonseka, the defeated Presidential candidate.
As far as the facts remain, Sri Lanka Government has the right to discipline a wrong doer, because he was a Presidential candidate that does not mean the government to absolve all the offences said to have been committed by that particular presidential candidate. If the government fails to come forward to take action against a former commander, who was also a presidential candidate, then it amounts to creating a wrong precedent.
Before delving very deep into the legality of Sarath Fonseka’s arrest under Army Act 57 (1) which was first to be brought up by this writer in the Asian Tribune before even Sarath Fonseka was arrested, it is important that we go into the Letter of Retirement submitted by General Sarath Fonseka on 12 November 2009 to the Sri Lanka’s President through the Secretary of Defence.
I wish to draw your attention about what Sarath Fonseka has written, according to para (4). (This was numbered him only.) It reads as follows:
4. Considering the facts mentioned in the Annex and more which I am privy to withhold, I am compelled to believe that Your Excellency and the Government has lost your trust and faith bestowed upon me for reasons only known to Your Excellency. Hence as the senior most serving military officer in the Country with 40 years of service, such a situation does not warrant a continuation of my duties any longer, thereby I have the honour to request that I be permitted to retire from the Regular Force of the Army with effect from 01st December 2009.
Sarath Fonseka has very clearly pointed out, “I be permitted to retire from Regular Force of the Army with effect 01st December 2009. (The emphasis is mine).
Army Act Section 2 (2) states that the Army shall consist of (a) Regular Force, (b) Regular Reserves, (c) Volunteer Force and Volunteer Reserves.
Therefore Sarath Fonseka himself has accepted when he wrote the letter of retirement that he belonged to the Regular Force of the Army. This clearly shows that it was a clear admission that he comes under the Army Act 57 (1).
He has accepted that he wanted to retire from the Regular Force that clearly indicates that there is no special law governing a Commander of the Army or else the Chief of Defence Staff.
All comes under the Army act. Therefore no one is above the law either a commander or a private soldier in the Army.
Furthermore, from the day he was Commissioned as an Army Officer up to the date of his retirement his Army number was 50536 and it never changed when he was appointed either as a Commander or as the Chief of Defence Staff.
He was holding the four star General post as the Army Commander and he continued with it even after his appointment as Chief of Defence Staff.
He only wore the Army uniform even when he was the Chief of Defence Staff.
He was having honor awards as General G S C Fonseka RWP RSP VSV USP rcds psc which was awarded to him as an Army person.
Furthermore even when he was the Chief of Defence staff he was paid by the Army, occupying the Army quarters, having an ADC an Army person, etc. etc.
When he applied for the retirement, on behalf of the President of Sri Lanka the Secretary to the President Lalith Weeratunga replied to General Sarath Fonseka on 15th November 2009, stating his retirement has been accepted as follows:
"I am directed by His Excellency the President to acknowledge receipt of your letter dated 12 November 2009, seeking permission to retire from the Regular Force of the Sri Lanka Army.
“I have also been directed by His Excellency the President to inform you that in keeping with your wish to proceed on retirement without further delay as you have already over stayed your date of retirement by four years, you will be retired from the Sri Lanka Army with immediate effect. Consequently, you will cease to hold office as Chief of Defence Staff, also with immediate effect.
This decision has been arrived at having giving anxious consideration to the fact that you yourself believe that H.E. the President and the Government have lost the trust and faith bestowed upon you, as the senior most serving military officer in the country.
I have been further directed to inform you that you will also be provided with adequate security commensurate with the level of threat.”
Lalith Weeratunga’s reply clearly indicates that since 18 December 2005 Sarath Fonseka was on annual extension of his service. By 2009 November he was given the 4th extension of service.
The Fourth extension was given to him on 18th December 2008, at the time when he was the Commander of the Army. So when he send in his notice for retirement, Sarath Fonseka was fully aware that he enjoys the fourth lease of life in the Regular Army, because due to the extension of service he received as the Commander of the Army.
After clarifying Sarath Fonseka’s position that comes under Army Act, now it is time to look into his position as Chief of Defence Staff and whether he comes under the Army Act.
For this we must look into the Chief of Defence Staff Act 35 of 2009.
Section 5: Sub Section 3 Proviso:
“When such officer relinquish his position as the Commander of the Army, Commander of the Navy, Commander of the Air Force, as the case may be, the officer so appointed shall from the date of such appointment be deemed to continue as a member of the regular force of the respective service which he belongs prior to such appointment not withstanding anything to the contrary in the Army Act, the Navy Act or to the Air Force Act is the case may be. "
So this clause in the Chief of Defence Staff Act 35 of 2009 amply clarifies that Sarah Fonseka even while he was the Chief of Defence Staff, he belongs to the Regular Force of the Army and he comes under Army Act.
- Asian Tribune -
Comments
Due process!!!!!
No one will argue against the due process to take its course and no one should be above the law. This includes the President. However, in Sri Lanka, under the current regime, the law is applied selectively and judgements from the courts are adhered to suit the regimes agenda.
When the Supreme court ordered to reduce the price of Oil ( petrol) after hedging scandal, the regime ignored the ruling. When the Supreme Court decided against the de-merger of North-East on a technicality, the regime accepted the verdict.
Karuna and Pillayn are given Govt. position and party position along with others who were responsible for killing of many tamils while many tamils are languishing in the prisons for years without due process. This regime has no respect for law and order or fairness or compassionate towards its citizens. Only thing it wants is power and will retain the power by any means.
If the regime treat SF, the war hero in the eyes of Sinhalaease is treated like this while Kaurna and Pillayan are entertained by the state, you can imagine how ordinary Tamil Speaking people are petrified about the prospect under MR’s regime.
What I wrote few weeks ago in this blog is slowly coming to reality. Here what I wrote on 13 Nov 2009.
“See how history repeat itself; Elephant pass event, followed by the stroke of Ranil’s pen triggered the start of demise of LTTE and finally the down fall of Parabakaran. During this period, the present day Karuna emerged as one of the catalyst for this domino effect. Similarly, end of war and peace time, has brought the “Sinhala karuna” in general SF form. There will be more drama to follow. Many of the Govt minsters and supporters will be petrified by SF action and want to get out of the Govt camp and join him before it is too late. The domino effect has started. The brothers grip on the crown is getting slowly loosen. Tamils will be watching the drama unfolding from the sidelines. “
Mahanayake and Sarath Fonseka
If Mahanayake is so interested they should have interfered earlier before all this mayhem happened in Sri Lanka. They should have cautioned Sarath Fonseka to be more patriotic and more responsible. Perhaps they could have convened a meeting with the President and SF to iron out their personal differences. Mahanyake’s are behaving as traitors to the country by their childish stand. If they are so close to Sarath Fonseka they should get him to act like a true patriotic without links to LTTE elements.
What SF is doing at this moment is detrimental for the interests of the Tamils too. By giving in to TNA demands to separate Sri Lanka again has given the average Tamils the fear that LTTE elements are still active and well. The Tamils cannot still democratically elect their own representatives for the betterment of themselves and their children. Because of these LTTE elements, in the event SF or similar person to ascend to the office of president someday, all the Tamils who want to enjoy their democratic freedoms are betrayed once again.
Legality of action against the General - Mahanayake interference
Thank you Mr Rajasingham for clarifying the legal position regarding action being taken against Mr Sarath Fonseka. I am sure the Supreme Court will consider this position when they hear the FR application submitted Mr Fonseka. Those agitating for Mr Fonseka's release, including the Mahanayake's, should await the Supreme Court decision, and everyone, including the government, should respect and abide by that decision. It is clear that a due process is being followed in this case and Mr Fonseka is being treated with respect and in keeping with his position as former Army Commander and former CDS, although it is questionable whether he has shown any respect to his former superiors. Those who are agitating for his release, particularly the Mahanayake's, surely must consider their stand in case he is guilty of what he is accused of. They should also get legal advice and not just listen to representation from politicians who are agitating for Mr Fonseka's release, before joining the bandwagon of agitators. As it is clear that the government is following the due process, the Mahanayke's entry into this debate and their specific call for his release, appears as interference in a legal matter and not something they should be doing. It is regrettable that they have done this and given rise to a perception of political partiality as this is the last thing Sri Lankans want from the Mahanayake's.