Civil, military laws apply to Fonseka

Interviewed by Dhaneshi YATAWARA

Senior Lawyer Gomin Dayasri, considered as a legal luminary, has appeared for many landmark cases in Sri Lanka's history during 40 years in the profession. He has appeared for the Sri Lanka Army, Navy and Air Force, free of charge, in many human rights violations cases and exonerated the three Forces from these allegations.

In 2006, Dayasri appeared in the landmark case of the North-East demerger which was a turning point in Sri Lanka's history.

Here, in an interview with the Sunday Observer, he explains the legal proceedings against former Army Commander Sarath Fonseka.

Q: From the beginning Sarath Fonseka insisted that he should be tried under the Civil Law and not the Army Act. Could there be any possibility for this?

A: He could be tried under both the Civil Law and the Army Act.

In view of the provisions under the Chief of Defence Staff Act, No. 35 of 2009, a person holding that position is deemed to be a member of the Force he served with the provisions in the Army Act which enables a charge to be maintained for a period of six months though he ceases to hold a position in service.

As a citizen the ordinary Civil Law applies to him.

Q: Could you explain the functions of a Court Martial?

A: A Court Martial functions under Military Law which is governed by a statute passed by Parliament and covers the members of the Forces or those deemed to be in the Forces by law. You are tried before your peers-members of the Forces.

There is a person appointed as the Judge Advocate who is acquainted with military procedures and the Military Law to advise the tribunal on the procedures and the law.

The principle of natural justice will prevail. The right of cross examination and the right of representation are inherent.

However, it is not a regular civil/criminal court, but a tribunal to maintain discipline in the Forces. Discipline in the Forces is more tightly maintained than in civil society due to necessity. A Court Martial or similar disciplinary procedures are an inherent aspect in every defence force in the world. Of course, it does not provide all the privileges an accused in a criminal court will enjoy.

Finally, from the findings of a military tribunal, a review of the decision can be made to the regular appellate courts. In fact in several cases, military decisions were set aside by the appellate courts. So an appellate court supervises the procedures and practices of military courts.

Q: Can treason against the Government be a charge under the Army Act?

A: Any violation of military discipline could be the subject matter and treason is specifically mentioned in Sec 2 (a) of the Army Act as an offence. It could also attract the Official Secrets Act under the provisions relating to any other offence.

Q: Are you aware of similar cases in the past?

A: Court Martial or Military Courts of Inquiry and Commissions of Inquiry are regular occurrences in the Forces to maintain discipline. More so during times of war where allegations surface often.

I remember several years ago in the 1960s when most senior members of the Navy were subject to a disciplinary inquiry after a cruise overseas and some were found guilty.

Also, in the same period, a Special Commission was set up under an Act of Parliament which held that a number of the most senior officers in the Army, Navy and Police were guilty of attempting to conspire to overthrow the government of Sirimavo Bandaranaike. The right of review was available and utilised right up to the Privy Council in England, since Sri Lanka was then not a republic. In the Privy Council, on a technical defect, namely it was held that the legislation had a retrospective character and was defective, therefore the accused were freed at a time they were serving their conviction in prison.

Q: What is the position of Sarath Fonseka in this process? What are his rights?

A: He would be in the same position as any other member of the Armed Forces. He would be entitled to all the rights that an accused person under the Army Act is entitled to, but furthermore he is protected by rules of natural justice which overpowers the Army Act. So his rights get extended by the principles of natural justice and the inherent rights under the chapter on Fundamental Rights. These basic rights cannot be deprived by the Army Act. So the regular appellate courts can be accessed to maintain supervisory jurisdiction over any military tribunal in the event the rights of an individual are being affected.

If there are any infringement of these rights and privileges, he has the power to access the civil appellate courts for relief. Often our Supreme Court and the Court of Appeal have intervened and restored the denied rights of military officers at military tribunals. It is the law of the land that is supreme and Military Law which is secondary extends jurisdiction to the members of the Armed Forces, but is still supervised by regular courts. But that does not stultify their legal rights under Fundamental Rights and still more under Natural Justice that has an extensive coverage.

My personal experience is that these military tribunals often fault on the law notwithstanding the guidance of the Judge Advocate. But on the facts they are more equipped to reach the correct position than regular courts since they have a pragmatic approach and practical insights of practices and situations faced by military personnel in active service. Regular courts examine issues more in the abstract, but are more experienced in determining the evidence. So there are both pluses and minuses.

Q: What are the consequences of the statements made by Sarath Fonseka with regard to the white flag surrender story and that he is prepared to testify before international tribunals?

A: Elements which were unfriendly to Sri Lanka during the war and thereafter are targeting our Forces for war crimes; but they have no material to substantiate. these claims. They want to diminish the credit due to the Forces and there is an element of jealousy; we, with our limited resources, did what no other country could do and where the powerful and the mighty are still at the mercy of the terrorists.

As counsel for the Army, I can speak with pride about how Sarath Fonseka, the then Army Commander helped to prevent the Forces being targeted for such crimes. It is shocking that Fonseka should send wrong signals-now totally different to his previous stance-which is encouraging those unfriendly elements to use Ban Ki-Moon and Navi Pillay to commence investigations. This has happened because of the company Fonseka has kept in recent times-with those who did not want to see the LTTE defeated on the battle field and especially those who clung onto the 'peace process'. I pity Fonseka who could have lived a life of a hero.