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
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
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
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.