SC to hear further submissions on whether a Court Martial is a Court of Law

Case against former Army Commander

The Supreme Court will hear on Monday further submissions to determine whether the military Court Martial which found former Army Commander Sarath Fonseka guilty of violating tender procedures, could be accepted as a Court.

Former Army Commander Sarath Fonseka alighting from the Prisons vehicle on Thursday to enter the court premises.
Pic by Nalin Maligaspe

Mr. Romesh de Silva, Senior Counsel for Mr. Fonseka urged the Supreme Court to determine the matter at the earliest as his client risked losing his Parliament seat. Due to the urgency of the matter the Supreme Court decided to hear the case tomorrow.

The writ application which was filed in the Court of Appeal by former General Sarath Fonseka challenging whether the Court Martial was a Court or not, and which was transferred to the Supreme Court for the interpretation of same, was heard this week before a Bench comprising Chief Justice Asoka de Silva, Justices Shirani Bandaranayake, Saleem Marsoof, Gamini Amaratunga and K. Sripavan.

President’s Counsel Romesh de Silva appearing for the petitioner in his submissions to Court referred to Article 89(d) of the Constitution. He said a Court Martial could not be classified as coming under “any Court” that could exercise judicial power entrusted to a Court of Law.

Citing several Articles of the Constitution, he said that they specify that only the Supreme Court, the Court of Appeal, the High Court and such other Court nominated, could administer justice and protect the fundamental rights of the people and not a Court Martial which is an ad-hoc Court constituted to try only personnel who are in the Forces and who violate the rules and regulation stipulated in the Army Act.
He said that a Court Martial could be constituted with persons from the Forces who could be even a Captain in the Army and after they complete their duties in the Court Martial they go back to their normal duties. He therefore asked whether they could be accepted as persons who could deliver justice according to the law.

He said the Court Martial could not conduct an inquiry of a civilian who breaks the law. He said the Army Act was for the purpose of maintaining discipline in the Forces. The Constitution states that any member of Parliament who is convicted of a crime and is sentenced to a period of six months or more by a court could not attend Parliament and so he specifically states that the Court Martial is not a Court and therefore the petitioner is entitled to his rights after being elected to Parliament by the people.

Supporting the submissions made by P.C. Romesh de Silva, President’s Counsel Shibly Aziz appearing on behalf of the 7th respondent JVPer Lakshman Nipunaarachchi who refused to accept his nomination by the Elections Commissioner as an MP, said that civil courts are constituted for the purpose of administrating justice whereas a Court Martial is made up of officers from the Forces who could only decide whether an act has been committed by a member of the Forces (only) against the Army Act and then could pass sentence.

He contended that judicial power does not come within the purview of the Court Martial and submitted that the institutions that could administer justice lay only in the Supreme Court, the Court of Appeal, the High Courts and such other Courts.

Romesh de Silva P.C. with Saliya Pieris, Sugath Caldera, Riad Ameen, Shanaka Cooray, Eraj de Silva instructed by Paul Ratnayake Associates appeared for Sarath Fonseka. Shibly Aziz, P.C with Chrismal Warnasuriya appeared for the 7th respondent, Attorney General Mohan Pieris with Deputy Solicitor General Ms. Farzana Jameel, and Senior State Counsel Nerin Pulle appeared for the State.

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