On My Beat: More on arrest & detention of Fonseka; of trial & punishment

New facts have begun to emerge about the arrest and detention of Retired General Sarath Fonseka.

According to the Letter of Retirement by Sarath Fonseka dated 12 November 2009, which was forwarded through the Secretary of Defence to the President of Sri Lanka, he wrote that he “was enlisted to the Ceylon Army on 05th Feb 1970 and was commissioned on the 01st June 1971. On the 6th Dec 2005 due to the trust and confidence placed on me, Your Excellency was kind enough to promote me to the rank of Lieutenant General and appoint me as the Commander of the Sri Lanka Army… “

According to him he joined the Ceylon Army on 05 February 1970 and was commissioned as an Officer on 01st June 1971. But in the 2nd paragraph of his letter he says he served as the Army Commander for “During my command of 3 years and 7 months …”

Though he was made an army commander, he was to be retired on 18th December 2005 as he has reached the retirement age. Subsequently Sri Lanka’s President was kind enough to extend his services consecutively for four years.

In his retirement letter he has asked the President of Sri Lanka “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.”

According to Army Act - An Act To Provide For The Raising And Maintenance Of An Army And For Matters Concerned Therewith) Army Act No 17 of !949.

Part 1. Organisation of The Army

2 (1) There shall be raised and maintained in accordance with the provisions of this Act and of the regulations thereunder, an army not exceeding such strength as may from time to time be determined by the Parliament.

(2) The Army shall consist of -

(a) a Regular Force

(b) a Regular Reserve, and

© such Volunteer Reserve as may be constituted under section 5 and 6.

In his retirement letter he has clearly said that be permitted to retire from the Regular Force of the Army”

According to Army Act Part VII – Persons Subject to Military Law

34. For the purposes of this Act, “person subject to military law” means a person who belongs to any of the following classes of persons:-

(a) all officers and soldiers of the Regular Force

35. A person subject to military law commits any military or civil offence may be taken into military custody.

Accordingly General Sarath Fonseka comes under the military law of the land.

Army Act ( 8 (1) The President shall appoint a fit and proper person to command the army.

(2) The person appointed under subsection (1) of this section shall be designated Commander of the Army.

Army Act 10. Every officer shall hold his appointment during the President’s pleasure.

11. (1) An officer of the Regular Force or Regular Reserve shall not resign his commission, but may be allowed by the President to do so.

(2) An officer of the Regular Force or Regular Reserve who tenders resignation of his commission to the President shall not be relieved of the duties of his appointment until the acceptance of the resignation is notified in the Gazette.

Accordingly the retirement of Sarath Fonseka was Gazetted in the Gazette Extra-ordinary No: 1629/14 of 25th. November 2009.

When he applied for the retirement, on behalf of the President of Sri Lanka on 12 th November 2009, 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 given 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.”

Sarath Fonseka was the Commander of the Army and later he was appointed as the Chief of Defence Staff.

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 Sarath 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.

Therefore when Sarath Fonseka was the Chief of Defence Staff , he continued to be a Regular Force officer.

After his retirement from the Regular Force of the Sri Lanka Army, it became known to the Government that he has committed offences while he was in service prior to his retirement.

Asian Tribune’s “Corruption Gate” series

Asian Tribune has published series of exposures pointing out the activities of Sarath Fonseka has to be considered offences against the Army Act. Those disclosures are still available on the front page of the Asian Tribune under “Corruption Gate.”

Once the Government became aware of the offences committed by Sarath Fonseka, the Government decided to institute action against Sarath Fonseka under Army Act 57 (1) “Where a person subject military law commits any offences and thereafter ceases to be a person subject to military law, he may be taken into and kept in military custody and be tried and punished for that offence by a court martial.”

According to this section Army has decided to moot action against the Retired General Sarath Fonseka.

Accordingly, the Army Commander has decided to bring Sarath Fonseka under custody to institute Court Martial action against him.

Section 37 of the Army Act says: “Any officer or soldier ordered into military custody shall be committed to the custody of a provost marshal or an assistant provost marshal or of the commander of the guard. The person to whose custody any officer or soldier is committed under this section shall not refuse to receive or keep him.”

Furthermore, Section 38 – “The person ordering any officer or soldier into military custody shall, within twenty-four hours of the committal of that officer or soldier to such custody, deliver to the person to whose custody that officer or soldier committed a written and signed statement of the offence which that officer or soldier is charged. “

According to this section, The Commander Army must have delivered “a written and signed statement of the offence which Sarath Fonseka was charged.

Therefore once a signed statement of the offences were delivered to provost marshal, Brigadier Wijesri by the Commander, he went on 08 February to the Rajkeeya office of Retired General Sarath Fonseka to arrest and bring him under military custody according to the order of the Commander of the Army.

When he went to arrest Sarath Fonseka at his two storied office building, along with Police as well as with the Commandant of the Western region and Puttalam Major General S.R. Manawaduge, who gave protection to the military police met with stiff opposition by Sarath Fonseka and the political leaders who were with the retired commander at his office.

When the army team went to do their legal duty to arrest Sarath Fonseka, they first unarmed all those security officials from the Ministry who were in the downstairs of the office.

Subsequently, it was learnt that Brigadier Wjesri and Major General Manawaduge went upstairs and they saw Sarath Fonseka was in discussion with JVP Leader Somawansa Amarasinghe, Sri Lanka Muslim Congress Leader Rauff Hakeem and Mano Ganeshan.

Provost Marshal asked them to leave saying that they have come to arrest Sarath Fonseka.

They refused to leave and said that they were Members of Parliament. Though they were Members of Parliament they did not have any authority, it was learnt, to prevent or hinder the Army officers from doing their duty.

According to Army Act 139: Every person, other than a person subject to military law, who –

(a) willfully obstructs, impedes, pr otherwise interferes with any officer or soldier in the execution of his duties, or

shall be guilty of an offence and shall, on conviction after summary trial before a Magistrate, be liable to simple or rigorous imprisonment for a term not exceeding six months, or to a fine not exceeding one thousand rupees , or to both such imprisonment and fine.

The charges for his arrest

Then it is learnt Provost Marshal told Sarath Fonseka that they have come to take him under military custody and read out the charges –

1. Alleged corrupt dealings in respect army supply according to Section 114 of the Army Act – Offences In Relation To Property: “Every person subject to military law who takes any reward , fee or advantage in respect of or in connection with the purchase of provisions or merchandise brought into any garrison , camp, station, barracks or place in which he has any command or authority, or the purchase of any provisions or stores for the use of the army or any parts of the army, shall be guilty of a military offence and shall, on conviction by a court martial, be liable to suffer simple or rigorous imprisonment for a term of not exceeding three years or any less severe punishment in the scale set out in section 133.”

2. Conduct prejudicial to military discipline under section 129 of the Army

129 (1) “Subject to the provisions of this section, every person subject to military law, who by any act, conduct, disorder, or neglect, prejudices good order and military discipline, shall be guilty of a military offence and shall, on conviction by a court martial, be liable, if he is an officer, to be cashiered or to suffer any less severe punishment in the scale set out in section 133, and if, he is a soldier, to suffer simple or rigorous imprisonment for a term not exceeding three years or any less severe punishment in the scale set out in section 133.”

(2) “No person shall be charged under the subsection (1) of this section in respect of any act, conduct, disorder, or neglect, which constitutes an offence for which special provision is made in any other section if this Act and which is not a civil offence."

The provost marshal also told the reason of arrest and said that army commander has authorised their arrest under 57(1) of the Army Act, to arrest and commit him under military custody according section 38 of the Army Act. "

(4) Harbouring deserters According to Army Act Section 138 Every person, other than a person subject to military law, who by any means –

(a) procures or persuades any officer or soldier to desert or absent himself without leave, or attempts to procure or persuade any officer or soldier to desert or absent himself without leave, or

(b) knowing that an officer or soldier is about to desert or absent himself without leave, aids or assists him in deserting or absenting himself without leave, or

(c) knowing any officer or soldier to be a deserter or absentee without leave, conceals such officer or soldier or aids or assists him in concealing himself, or aids or assists in his rescue from arrest,

shall be guilty of an offence and shall, on conviction after summary trial before a magistrate , be liable to simple or rigorous imprisonment for a term not exceeding six months.

According to Army sources, this is a civil offence and will be tried in a civil court.

It is learned subsequently Sarath Fonseka has asked whether they have brought civil police to arrest him and to that the provost marshal seems have told there is no need for civil police as he is to be arrested under military law and to be taken under military custody and he seems to have said if you want you can see the police officers downstairs.

Once this was told, it is learned Sarath Fonseka who claimed that he has served in the Army for 40 years, started shouting obscenely and abusively in Sinhala.

He called the Sri Lanka President “Ponnaiya”, a coward and if I see him, I will teach that “Son of a Bitch” a bitter lesson which he will never forgets in his life and started shouting at the top of his voice.

In the meantime Captain Shah Silva, his secretary joined him and said “No Fucker can arrest our General.”

Subsequently, army personnel arrested Captain Shah Silva and handed him over to the CID.
It is learned the provost marshal has appealed to Sarath Fonseka to come down with them.

But he said that there is no requirement and he is not coming under the Army Act and started abusing in utter filth again and began to shout about the President, abused the Secretary to the Defense as well as the Army Commander.

Suddenly he got up and kicked the chair and the kick missed the chair and landed on the chest of a soldier who was by his side and he groaned with pain.

As the situation was getting out of control , it is learnt, then provost marshal ordered the arrest Sarath Fonseka to the soldiers.

Then Sarath Fonseka warned that no one should come near him and looked very menacingly.
At the time the Members of Parliament who were there stood like a human shield blocking the soldiers from doing their legitimate duty. Mano Ganeshan MP and Somawamsa Amarasighe also were heard shouting.

In the meantime, the soldiers were forced to carry Sarath Fonseka as he started kicking and shouting fiercely.

This happened around 9:30 or 35 in the evening on the 8th of February 2010.

Then when the soldiers carried him to complete their arrest, he kicked and landed a blow at Major General Manawaduge l and he slapped with his free hand everybody and also and grabbed the uniforms of the soldiers.

Subsequently, when he was brought down he told that he was prepared to walk and he was let down to walk to the nearest vehicle that was parked which was a bullet proof land rover.

He was taken to the Navy Headquarters and confined to the senior Navy official’s apartment.

This was done, according to Army sources, was done for the reasons of his security, the defence officials said.

This arrest was described as abduction by the Opposition party leaders as well as by Wijeyadasa Rajapaksa who claims himself as the counsel of Sarath Fonseka.

Scale Of Punishment By Courts Martial

Given below is the different punishments the court martial can give:

133. (1) Subject to the provisions of section 134, the following shall be the scale of punishments, in descending order of severity, which may be inflicted on officers convicted of offences by courts martial :-

(a) Death

(b) rigorous imprisonment

(c) Simple imprisonment

(d) cashiering

(e) dismissal from the army

(f) forfeiture, in the prescribed manner, of seniority of rank, either in the army or in the corps to which the offender belongs, or in both; or in the case of an officer whose promotion depends upon length of service for the purposes of promotion;

(g) Severe reprimand or reprimand;

(h) such penal deductions form pay as are authorize by this Act.

(2) Subject to the provisions of section 134, the following shall be the scale of punishments, in descending order of severity, which may be inflicted on soldiers convicted of offences by courts martial :-

(a)death;

(b) rigorous imprisonment;

( c) simple imprisonment

(d) detention for a term not exceeding three years

(e) discharge with ignominy from the army

(f) dismissal from the army

(g) in the case of a warrant officer or a non-commissioned officer, reduction to the ranks or to a lower grade, or forfeiture, in the prescribed manner, of seniority or rank

(h) in the case of a warrant officer or a non-commissioned officer, severe reprimand or reprimand

(i) such forfeitures of and deductions form pay, and such fines, as are authorized by this Act.

- Asian Tribune -