By Sarath N. Silva (Former CJ)
Sarath Fonseka walked out of prison in the evening of May 21 to a rousing welcome of his supporters who had gathered in their numbers for several hours awaiting his release. Electronic media relayed an uninterrupted coverage of the different stages of the event signifying the considerable public interest that had been evoked. Although, he walked out as a free man, the extent of the liberty regained by him, the circumstances of his incarceration and release, continue to elude the public domain.
The only document regarding his release which has surfaced is a letter dated May 21, 2012 sent by the Secretary Ministry of Justice to the Commissioner General of Prisons. The letter reads as follows,
“Prisoner No: 022032 Sarath Chandralal Fonseka
H.C. Colombo- Case No. 5311/ 2010
General Court Martial 17.09.2010
The Hon. Minister of Justice by his letter bearing No. L/P/17/11 (02) dated 15.05.2012 has recommended to His Excellency the President the grant of relief to the above prisoner.
His Excellency the President in the exercise of the inherent powers vested in him under Article 34 of the Constitution has granted the remission of the balance sentences to be served by the above prisoner”.
There is a basic inconsistency in the letter when it refers to “balance sentences to be served”. The two cases cited in the title to the letter are; the “White flag case” in the High Court and the “Hicorp” matter before the Court Martial. When Fonseka was convicted in the High Court, he was serving the term of imprisonment imposed by the Court Martial. The High Court specifically directed that the term of 3 years imposed by it would commence after the sentence currently being served is concluded.
Therefore, if there is a balance to be served from the sentence imposed by the Court Martial, it necessarily follows that the whole of the sentence imposed by the High Court has to be served. In effect the remission that has been granted is in respect of the whole of the sentence in the High Court and the balance of the sentence imposed by the Court Martial.
A High Court at Bar comprising of three judges, is the highest ranking court in the hierarchy of our criminal courts. It is especially constituted by the Chief Justice on the application of the Attorney General to try grave offences where expeditious action is necessary. The then Chief Justice on the application of the then Attorney General took the view that the “White flag” case in which the offence consisted of the single answer given by Fonseka to a question put to him by an editor of a newspaper was more serious than the gruesome murder, rape and robbery cases that clog the trial rolls in our High Court and that Fonseka should be arraigned before a High Court at Bar. Now, the wheel has turned. The conscience of the Executive has been “shocked” at the injustice meted to Fonseka by the judiciary and exercising the prerogative power vested in the Head of State by Article 34 of the Constitution the entirety of the sentence imposed by the High Court at Bar has been remitted (set aside) when an appeal from it was pending before a Divisional Bench of the Supreme Court.
But, regrettably when it come to the sentence imposed by the Court Martial which is much lower in the hierarchy of institutions, to the High Court at Bar, the conscience of the Executive has been “shocked” only the part and only in balance of the sentence has been remitted. A question immediately arises as to the reason for the difference in the measure of relief granted in the two cases, which has been camouflaged in the letter of the Secretary which misleadingly refers to a remission of “the balance of the sentences to be served” in both matters. The answer reveals the political agenda of the entire process. If the whole of the sentence in the “Hicorp” matter was remitted as it was done in the “White flag” case, Fonseka would automatically cease to be disqualified as a voter in terms of Article 89 (d) of the Constitution and from being a candidate at any election. By restricting the remission only to a balance of the sentence, Fonseka is kept out of the political arena for a further period of five and half years. If that be the treatment meted to a key political opponent who was the common opposition candidate, can our country be “known as the Democratic Socialist Republic of Sri Lanka” as stated with pride in Article 1 of our Constitution.
Fonseka was arrested by the Army which comes under the supervision of the President as the Commander-in-Chief and Minister of Defence and of his brother as Secretary Ministry of Defence; the charge sheet against Fonseka in the ‘Hicorp’ matter were signed by the President on March 31, 2010; the General Court Martial which tried Fonseka was specifically convened by the President and its members were appointed by him; the conviction entered by the Court Martial was subject to confirmation by the President; the sentence of two and half years rigorous imprisonment recommended by the Court Martial was confirmed by the President and the President has the power to remit the whole or part of the punishment in terms of section 67 of the Army Act. Thus the President exercised a six fold power in the process against Fonseka which commenced within 12 days of the Presidential Election, with his arrest pursuant to which he was not produced before a court of law required by Article 13 (2) of the Constitution. Thus Fonseka was totally subjugated by his opponent at the Presidential Election who now wielded the executive power of the State. The stranglehold on him continued till the physical release on the May 21.
Since the “Hicorp” matter remains as the residuary sting, it calls for further scrutiny. Although Fonseka was charged on 4 counts under Section 109 of the Army Act, they did not relate to any military matter or his conduct in relation to officers or soldiers of the Army. They relate to an omission on his part to comply with a Procurement Guideline, issued by the National Procurement Agency when he served as the Chairman of the Tender Board. The Agency came within the purview of the Ministry of Finance and the guidelines were applicable in relation to all public officers engaged in tender processes. If the Army discovered any omission on the part of Fonseka to comply with any such guideline that should have been brought to the notice of the Ministry of Finance being the proper authority. Since there was no loss to the government resulting from the alleged omission nor any gain or loss to any tenderer, the Ministry of Finance would probably not have taken any action in that matter.
Procurement relates to public finance which comes within the purview of the Auditor General and ultimately the full control of Parliament in terms of Article 148 of the Constitution. The Army has usurped the role of the Ministry of Finance, the power of the Auditor General and of Parliament by seeking to enforce a Procurement guidelines against Fonseka. This has been done purposely to victimize and punish him and not through any desire to preserve the pristine purity of the tender process, as it is made out to be. The inequity of the action taken lies in the fact that if another public officer to whom the guidelines applied made a similar omission he would not have been subject to any action resulting in imprisonment. Thus, Fonseka has been denied the basic fundamental right to the equal protection of the law guaranteed by Article 12 (1) of the Constitution.
The question whether a Court Martial convened under the Army Act was a Court established for the administration of justice and it exercised the judicial power of the State was considered by a Full Bench of the Supreme Court in 1915 (18 NLR p334) and in 1966 (69 NLR p193). In both cases it was held that a Court Martial was not engaged in the administration of justice and that it did not exercise judicial power. When Fonseka was tried and sentenced by the Court Marital these two judgments and were binding law and the disqualification in Article 89 (d) of the Constitution which relates to a conviction and sentence imposed by a court would not have applied to Fonseka. However, the then Secretary General of Parliament disregarded these two judgments took action on the basis that Fonseka had vacated his seat in Parliament pursuant to the sentence imposed by the Court Martial.
Fonseka challenged this decision and on a reference to the Supreme Court, the line of reasoning that had been operative since 1915 was departed from and it was held that a Court Martial is a court in terms of the Constitution. If so, presiding officers of a Court Martial should be judicial officers to be appointed by the Judicial Service Commission in terms of Article 111 H of the Constitution; hearings should be in public with access to the press as required by our law and Article 14 (1) of the ICCPR; the procedure established by law viz the Criminal Procedure Code should apply as required by Article 13 (4) of the Constitution being the very provision relied on by the Supreme Court itself; a judgment should be pronounced in open court and most importantly, there should be a right of appeal to the Court of Appeal in terms of Article 138 (1) of the Constitution from the judgment of the Court Martial.
These are the essential safeguards of justice and due process before a Court of law that were totally denied to Fonseka before the Court Martial. The amazing fact which would astound jurists, is that the Court Martial had one character when proceedings were taken against Fonseka and another character when the sentence imposed took effect. A classic injustice that would go to the dark pages of our legal history.
DM