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Sunday, 30 January 2011

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SC's landmark judgement

The Supreme Court delivered a landmark ruling on Tuesday after the Court of Appeal sought a decision from the highest court on the Court Martial.

The Court of Appeal, delivering the ruling from the Supreme Court, declared that the Court Martial, established under the Sri Lanka Army Act, is a 'Court' in terms of Article 89 (d) of the Constitution.

This was a sequel to the Court of Appeal seeking a determination from the Supreme Court - "Whether the words 'any court' referred to in Article 89 (d) of the Constitution refers to the Supreme Court, Court of Appeal and the other Courts of First Instance, to the exclusion of Tribunals and Institutions or whether the words 'any court' includes a Court Martial".

The Court of Appeal referred to Articles 24 (5), 105 and 13 (4), of the Constitution, and Section 23 of the Judicature Act No.2 of 1978, as amended.

The five-judge Supreme Court Bench comprised Chief Justice Asoka de Silva, Justice Dr. Shirani A. Bandaranayake, Justice Nimal Gamini Amaratunga, Justice Saleem Marsoof PC and Justice K. Sripavan. Accordingly, the Court of Appeal Judges - Justice Ranjith Silva, Justice A.W.A. Salaam and Justice Upali Abeyratne delivered the Supreme Court order in open court. According to the Judgement, the only quarrel here is whether the Court Martial is 'any court' in terms of Article 89 (d) of the Constitution.

The concept of Court Martial in itself and its power to determine cases and impose sentences of imprisonment and death not being contested and the only contest being its status in the hierarchy of institutions dispensing justice, Article 13 (4) of the Constitution brings it within the description of not only a 'court' by a competent court since in terms of Article 13 (4), only a competent court can impose sentences of death or imprisonment.

Accordingly, having regard to the manifest intention of Article 91 (a) read with 89(d) to safeguard the integrity of Parliament, the recognition of Courts Martial in Article 4(c) of the Constitution as well as in the direct reference to Court Martial in Article 142, the recognition of legislation inclusive of the Army Act and Courts Martial therein existing at the time of coming into force of the Constitution in terms of Article 16 (2) and 105 (2), the power of Courts Martial to impose sentences of death and imprisonment in terms of Section 133 of the Army Act read with Article 13 (4) of the Constitution wherein it provides that such sentences may be imposed only by competent courts. Accordingly, the Court Martial is recognised by the Constitution - in direct and unequivocal terms and that the Court Martial is an entity exercising judicial power and recognised by the Constitution as such in terms of the second limb to Article 4 (c).

The historic verdict of the Supreme Court, the highest of the judiciary, would, indeed, further strengthen the country's defence establishment and its smooth conduct, strictly following military and discipline at the highest levels. It would also be an eye-opener to one and all, especially for political opportunists who have been attempting to express their own definitions and 'law opinions'.

The 28-page Judgement states that there is no contest that the concept of the Court Martial is a reality and that it has the power to hear and try cases, act judicially, and impose valid sentences including imprisonment and death.

At the last Presidential election exactly a year ago, the masses taught a good lesson to opportunistic Opposition politicians who had been looking for shortcuts to capture power. The masses supported the patriotic forces and rallied round President Mahinda Rajapaksa which led to a landslide victory for a truly people's President.

It is still fresh in the minds of the masses how Sarath Fonseka conducted his election campaign with spite and malice, threatening to take revenge against his political opponents. He was apparently blind to the more-important political leadership which strongly backed the country's relentless battle against terror and made a futile attempt to claim credit for the historic feats of the Security Forces.

The masses, however, were far too intelligent and did not fall prey to Fonseka's bait. Fonseka marched from grace to disgrace due to his insatiable lust for power and the JVP gave him dead ropes for nearly one-and-a-half-months until the people's verdict was delivered on January 26 last year, giving a thumping majority of over 1.8 million votes for President Rajapaksa.

Gone are the days when judges were intimidated and harassed to suit the vested interests of political agendas. The 1977-1989 J.R. Jayewardene regime stoned the residences of judges who fearlessly upheld the laws of the land. In sharp contrast, President Rajapaksa and the UPFA Government always upheld the independence of the judiciary.

The Opposition should, at least now, understand the stark truth and respect the verdict of the Supreme Court. The JVP, true to form, would resort to anything and everything to emerge from its political wilderness.

Hence, they have no option but to shout from the rooftops and cry over Fonseka's lost parliamentary seat. It is deplorable that the JVP which had unsuccessfully attempted to capture power through the bullet on two occasions, is now attempting to sully the country's judicial image to fulfill its petty political aspirations.

On the other hand, the Opposition concocted various stories and spread rumours about the highest judiciary in the country. All this was done to mislead the masses. These acts should be condemned in the strongest possible terms.

Several Opposition politicians, including a controversial former Chief Justice and several pro-UNP lawyers have attempted to criticise the Supreme Court Judgement by ventilating their own viewpoints.

Whatever said and done, the Supreme Court judgement is final and conclusive. Nobody is above the law. Loyal and patriotic citizens honour the country's Constitution and respect the laws of the land.

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