Bogollagama briefs diplomats:

"No one is above the law"

Minister of Foreign Affairs Rohitha Bogollagama, at a briefing to the diplomatic community, stated that the decision taken to arrest Sarath Fonseka and hold him in detention with a view to conducting investigations followed by a legal process, was taken only after careful consideration.

The statement released by the Foreign Minister following the briefing is as follows:

"Gen. Sarath Fonseka was a serving Military Officer until November 14, 2009, when he resigned from the post of Chief of Defence Staff. The provisions of Section 57 (1) therefore were invoked to effect the arrest last Monday.

"The legal provision that will govern the process that is now under way are as follows: At the time of the arrest the alleged offences were read to the defendant. As the investigation proceeds, a Summary of Evidence will be recorded, on the basis of all witnesses having to make their Statements of Evidence under oath. After the recording of evidence of each witness, the statement would be read over to him and his signature would be obtained.

"The Defendant has the right to be present when the Summary of Evidence is recorded on a basic charge sheet. He also has the entitlement of cross-examining all witnesses. As a further safeguard, the Defendant is cautioned that he has the right to make a statement or to remain silent. He is also entitled to call witnesses to give evidence on his behalf.

"At the end of the summary, the officer recording the Summary of Evidence is obliged to state that he has adhered to all of the provisions laid down in the Disciplinary Regulations of 1950. The Summary of Evidence then constitutes the basis of determining whether a prima-facie case prevails for the continuation of the process or not.

"The processes under the Army Act do not derogate in any way from the fundamental entitlements to a free and fair hearing including with all the necessary access to and the assistance of Defence Counsel.

"In the case of Fonseka, let me add that given the high office he has held, the authorities have made it a point to ensure that he is treated with all the dignity and courtesy that is due. His family is afforded regular access and there are no constraints to his meetings with his Defence Counsel.

"The action concerning Fonseka was embarked upon only after careful consideration. There are some who, perhaps due to their being unaware of the true circumstances of the case, have chosen to perceive it as an example of political victimisation. The facts do not warrant such an assumption. Firstly, the Government could have if it so wished, opted to deny Fonseka the opportunity of entering the political arena by deciding either to refuse to accept the request to retire or by keeping the decision pending. That did not happen and in fact, quite soon after his sending in his letter, the President accepted his retirement from military service despite being fully aware that the General was leaving the Armed Forces, to contest as President Rajapaksa's principal opponent in the forthcoming Presidential Election.

"Secondly, the authorities had even at that time very strong reasons to apprehend that Fonseka had acted contrary to the provisions of the law, including the Army Act.

"However, the legal processes could not be applied since the election preparations were at an advanced stage and President Rajapaksa did not want to leave room for any public perception that he was acting in a manner intended to frustrate the political aspirations of any other potential candidate.

"There are two fundamentals here. One is the action taken in relation to Fonseka is a necessary step guided by the very valid criterion of maintaining the primacy of the rule of law. In our country, everyone is equal before the law and correspondingly no one can claim to be above the law.

"The other is that the process involving Fonseka will be conducted in a manner and on the basis of legal provisions that afford him and any other defendant under military law, the absolute and fundamental entitlement to a free and fair hearing in terms of the procedures established by law".