On My Beat: Sarath Fonseka accepts charge-sheet, to face two court martial

After a lapse of three weeks “On My Beat” makes appearance again in our columns today. In the mean time there were a lot of enquiries from our readers why the column stopped.

In deference to the readers’ wishes, I have again started to come up with “On My Beat” column, as I also consider it is important provide some important information to my readers about the proposed Court Martial arrangements against the former General Sarath Fonseka.

A couple of days back the General Sarath Fonseka was served charge-sheet. Initially he refused to accept the charge-sheet given to him by the Army Secretary on Thursday morning, but suddenly common sense dawned on him and has signed and accepted the charge-sheet against him in the afternoon.

Army sources say there are seven charges against him in the charge-sheet. The charges are divided into two groups.

The first group has one charge against Fonseka under the Section 124 and two charges under the Section 102 of the Army Act for engaging in politics while serving in the army.

What the Army Act says in the connection :

Section 124: Miscellaneous Military Offences

Every person subject to military law who uses traitorous or disloyal words regarding the Sovereign (President) 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 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.

Section 102: (1) Every person subject to military law who neglects to obey any general or garrison or other order shall be guilty of a military offence and shall on conviction by a court martial, be liable to, if he is an officer, to be cashiered or to suffer any less severe punishment, in 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.

(2) In this section “general order” does not include a regulation made under this Act

This will be heard in the first court martial

And there four charges under the Section 109 E of the Army Act to be tried at the second court-martial for violating army regulations when procuring weapons.

Section 109: Every person subject to military law who –

(e) commits any other fraudulent act herein before not particularly specified, or any act of a cruel, indecent or unnatural kind,

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 not exceeding three years or any less severe punishment in the scale set out in section 133. (The Act 133 scale of punishment is given at the end of this news report.)

The Court Martial panel

The courts-martial panel will comprise Major General H. L. Weerathunga (Chair) who is the Director of Asset Management in the Sri Lanka Army, Major General A. L. R. Wijetunga – who is the Quarter Marshal in charge supplies, food, transport and civil construction and Major General D. R. A. B. Jayatilake – a Sinha Regiment Officer and the Commandant – Volunteer Force.

The Judge Advocate will be Rear Admiral W.W.J.S. Fernando.

What the Army Act 46 says in this connection:

Section 46. (1) A general court martial may be convened by the President or such officer of a rank not below that of field officer as may be authorised by the President

(2) A General Court Martial shall -

(a) where it is convened to try a person subject to military law for any other offence of treason, murder or rape, consists of not less than five officers and

(b) Where it is convened to try a person subject to military law for any other offence, consists of three officers.

3. An officer of a rank below that of captain shall not be a member of a general court martial for the trial of a field officer.

4. The president of a general court martial shall be appointed by the authority convening such court martial, and shall not be that authority or an officer of a rank below that of field officer:

Provided, however, that where such authority in his order convening such court martial certifies that a field officer is not available owing to exigencies of the service, he may appoint an officer of a rank not below that of a captain as the president of such court martial.

Together one should read Court Martial Regulations Promulgated under Army Act:

6. (1) in the case of a general court martial, three at least of the members must not be below the rank of captain, but so, however, that an officer of a rank below that of captain shall not be a member of a general court martial for the trial of a field officer.

(2) The members of a court martial for the trial of an officer shall be of an equal, if not superior, rank to that officer, unless in the opinion of the convening officer to be stated in the order convening the court, officers of that rank are not, having regard to the exigencies of the service, available.

The Army Act does not have any provision to have any officers either from Navy or Air force to sit as members of the Court martial, where as provisions are available in the Navy as well as in Air Forces Acts.

The venue

The courts-martial sitting will be held at the Navy Headquarters on 16 and 17 March 2010.
It is further learnt that a State Counsel from the Attorney General’s Department will be conducting the case against Sarath Fonseka in the Court Martial proceedings.

It is still not clear whether press personnel will be allowed to cover the Court Martial proceedings.

Sarath Fonseka has been taken into military custody on 8th February under the Army Act Section 57 (1) Where a person subject to military law commits an offence 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:

Provided that he shall not be so tired after the lapse of six months from the date of the commission of such offence unless, such offence is the offence of mutiny, desertion, or fraudulent enlistment.

Is Army Commander above law

Furthermore there is an argument that the Commander of the Army is above the law and he cannot be brought under Court Martial.

The position of Commander is only an appointment. According to Army Act Section 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.

Similarly Chief Defence Staff too is an appointment. According to Chief Of Defence Staff Act, No. 35 of 2009

Part 1 : Appointment of Chief of Defence Staff

Section 2 (1) The President shall appoint from among the persons presently serving as Commander of the Army, the Commander of the Navy, or the Commander of the Air Force as the case may be , an officer to be the Chief of Defence Staff.

2 (3) Where an officer serving as the Commander of the Army, the Commander of the Navy or Commander of the Air Force as the case be, is appointed as the Chief of Defence Staff , he shall, upon being appointed, relinquish his position as the Commander of the Army, the Commander of the Navy, the Commander of the Air Force, as the case may be:

Provided that notwithstanding anything to the contrary contained in the Army Act (Chapter 357) the Navy Act (Chapter 358) and the Air Force Act (359), the person so appointed as Chief of Defence Staff shall, for so long as he holds such position, continue to be a member of the regular force of the service to which he belonged to at the time of his appointment under section (1).

Provided further, when such officer relinquishes his position as the Commander of the Army, the Commander of the Navy or the 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 to which he belonged prior to such appointment, not withstanding anything to the contrary in the Army Act (Chapter 357), the Navy Act (Chapter 358) and the Air Force Act (Chapter 359) as the case may be.

There is no one above the law, whether he is a soldier or a commander. All the Army personnel are addressed with numbers. Even Sarath Fonseka when he joined the army as a commissioned officer he was allotted with a number – 50536. This officer was continuously identified with this number from the days he joined the Army as a second Lieutenant up to the days he was the Army Commander, as well as the Chief of Defence Staff, and thus he is like any other officer in the Army.

Part VII : "Persons subject to Military Law".

Section 34 For the purposes of the 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";

(b) "All such officers and soldiers of the Regular Reserve, Volunteer Force, or volunteer Reserve, as are deemed to be officers and solfiers of the Regular Force under subsection (3) of section 3..."

Deals with Interpretation

"officer" means an officer commissioned as an officer of the army;

This legal luminary should read the letter requesting for retirement sent by Sarath Fonseka on 12 November 2009, where Sarath Fonseka has very clearly requested the Sri Lanka President:

“I have the honor to request that I be permitted to retire from the Regular Force of the Army with effect from 01st December 2009.”

Therefore, Sarath Fonseka is only another officer in the Regular Force of the Army and he will be treated as any others in the Regular Force of the Army under the Army Act.

Therefore according to the request made by Sarath Fonseka by his letter dated 12 November Sri Lanka President who is also the Commander in Chief by The Gazette of the Democratic Socialist Republic of Sri Lanka

Extraordinary No. 1629/14 – Wednesday , November, 25, 2009, Part !: Section (1) – General under Government Notifications:

Approval of Relinquishment of Position, By His Excellency President
P.O.No.: CA/03/5/09

It is hereby notified that General Sarath Chandralal Fonseka, RWP, RSP, VSV, USP, rcds, psc, has, with effect from November 14, 2009, relinquished the position Chief of Defense Staff.

By His Excellency’s Command.

Lalith Weeratunga
Secretary to the President
Presidential Secretariat,
Colombo 01,
23rd November, 2009.
12-379/1

Approval Of Retirement By His Excellency The President
P.O.No.: CA/03/5/09

It is hereby notified that General Sarath Chandralal Fonseka, RWP, RSP, VSV, USP, rcds, psc, has, with effect from November 14, 2009, retired from the Sri Lanka Army.

By His Excellency’s Command.

Lalith Weeratunga
Secretary to the President
Presidential Secretariat,
Colombo 01,
23rd November, 2009.
12-379/2.

Further more there is an argument that the Commander of the Army is above the law and he cannot be brought under Court Martial.

Scale of punishments by Court Martial

Section 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 in the case of an officer whose promotion depends upon length of service, forfeiture of all or any part of his service for the purposes of promotion;

(g) severe reprimand or reprimand;

(h) such penal deductions from pay as are authorised by the 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) discharges with ignominy dismissal from the Army;

(f) dismissal from the army.

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

(h) In the case of a warrant officer or a non-commissioned officer service reprimanded.

(i) Such forfeitures of and deductions from pay, and such fines, as are authorised by this Act."

- Asian Tribune -