Mar 11

Ignorance of the law is not an excuse that a citizen (except a minor or a lunatic) is in a position to plead as a defence when charged in a Court of law.  Therefore, it behoves each of us to make ourselves familiar with as much of the law as our intellectual capacity, time and energy will allow – which, lamentably, may not always amount to a great deal.  Even otherwise, judging by the popularity of courtroom scenes on TV, it is obvious that many people love to watch the battles of skills between the lawyers employed by opposing parties. This phenomenon is proof of the boundless interest that the law has for most of us, quite apart from our need to know the law for more pragmatic reasons.

In the local scene, the cases pertaining to Welikada prisoner Sarath Fonseka (SF) surpass in dramatic content most legal tussles seen on TV.  Members of the Citizens’ Movement for Good Governance (CIMOGG) are sometimes queried about the merits of the conflicting views which are expressed through the media regarding SF’s transition from General to Presidential candidate to MP to prisoner.  As the relevant issues are still being argued in the Courts, all that CIMOGG is qualified and legitimately entitled to do is to put down in simple layman’s language the principal concerns which have been highlighted by those who know the law quite well.  The objective here is to keep the People informed on a matter of great public significance.  Legalistic precision is not possible in layman’s language and, consequently, the more subtle points of interpretation are not examined here as they would be of interest only to those who have a good background in the law.

On a reference made by the Court of Appeal to the SC in one of the cases filed by SF in 2010, the SC recently decided that a Court Martial is a Court in terms of the current Constitution. To the average citizen, the SC’s decision is final and binding unless a fuller Bench of judges is convened to re-visit the subject.  All the same, there is no bar to those learned in the law from studying Court judgments and analysing them.  Consequently, former Chief Justice Sarath N. Silva (SNS), has made a lengthy contribution to the FINANCIAL TIMES (FT) of 28 February 2011 – from which we have borrowed freely below.

SNS has stated that, in 1915, a full bench of the Supreme Court (SC) had upheld the then Attorney General’s (AG’s) argument that a Court Martial did not exercise judicial power.  What the SC had decided then was that “… a Court  Martial is not convened ‘for the ordinary administration of justice’”.   SNS has added that, in 1966, the contemporary AG had persuaded the SC to conclude that “… Courts Martial in Ceylon are traditionally distinct from the Judicature of Ceylon”.

We may note that Ceylon gained independence in 1948 and functioned under the 1946/47 Soulbury Constitution until 1972.  The Army Act No. 17 was passed a year later, in 1949.

In 1972, the Sirimavo Bandaranaike government introduced a new Constitution.  Article 68(c) thereof provided for the disqualification of a voter from exercising his franchise if, in the 7 years immediately preceding, he had been serving a sentence of not less than 6 months for an offence punishable by a term of not less than two (2) years’ imprisonment.  A person so disqualified was automatically barred from being elected an MP.  However, when the 1978 Constitution was written, a further proviso, containing the words “imposed after conviction by any Court”, was added, which makes it self-evident that the makers of this new Constitution did not wish to allow the mere imposition of a term of imprisonment to negate the franchise enjoyed by a voter unless such imprisonment was imposed by a Court - presumably because there were other institutions, too, which were empowered to sentence persons to terms of imprisonment in excess of two (2) years and it was known that the possession of such powers did not necessarily make them Courts for the purposes of disenfranchisement. The applicable Articles are 89(d) and 91(1).

Now, SNS turns to Article 168(1) of the 1978 Constitution, which says that all laws existing before 1978 would continue to remain in force.  He then draws attention to Article 168(2) which stipulates that “… existing laws, written laws and unwritten laws are not and shall not in any manner be deemed to be provisions of the Constitution”.  In this context, as the Army Act is a law that was in existence before the 1978 Constitution was passed, it cannot be deemed to be a provision of the Constitution.  If one is mindful of Article 105(1), which reads “… the institutions for the administration of justice which protect, vindicate and enforce the rights of the People shall be … (c) Courts, Tribunals and institutions as Parliament may from time to time ordain and establish”, it is easy to see that any institution appointed by the Executive under the Army Act (a) deals only with Army personnel and not the People, and (b) Parliament plays no part in ordaining or establishing any such institution.  In the light of these observations, SNS disagrees with a Court Martial being elevated to the level of a constitutionally established Court.

To digress for a moment, Parliament’s main responsibilities, as set out in Article 4 of the 1978 Constitution, are to pass laws and to exercise the judicial powers of the People “through Courts, Tribunals and institutions” created and established in conformity with the Constitution or “established by law”, necessarily subject to the condition that all laws must adhere to the Constitution.  On the other hand, the Executive (which basically means the President and the Cabinet) is only empowered to exercise “the executive power of the People” and would have to rely on Parliament’s help to pass any laws that are required to address the challenges of changing socio-economic conditions.

SNS has analysed Article 4 further and opined that “… a Court is an entity which exercises the judicial power of the People and is distinct from Tribunals and other institutions that may also exercise judicial power”.  In other words, he does not allow that even Tribunals could be considered as Courts.

In an earlier but shorter contribution made to the LAKBIMANEWS of 13 February 2011, Mr Elmore Perera (EP), past-President of the Organisation of Professional Associations, had already expressed the view that a Court Martial is not a Court.  He has said:  “The institution of Court Martial, being an emanation of Executive power, is not a Court, Tribunal or institution set up by the Legislature in the exercise of the judicial power of the People …”.  EP has thereafter gone into the scope and make-up of the Courts Martial which were appointed to try SF.

EP points out that Section 131 of the Army Act provides for the imposition of death or imprisonment only if the charges include treason, murder, culpable homicide not amounting to murder, or rape.  SF was not charged with any of these in the two Courts Martial before which he appeared.  Hence, in terms of the Army Act, it was wrong to impose a sentence of imprisonment on him for the less serious charges which the Courts Martial had accepted as proven.

Of no less moment is the fact that Sect 46(2) of the Army Act stipulates that it is only a Court Martial of not less than five officers which has the power to sentence anyone to imprisonment or death but the two Courts Martial in question had only three members each and yet SF was sentenced to two years’ imprisonment by one them.

Given these two crucial shortcomings, as well as the grave questions raised about the appropriateness of a Court Martial being considered to be a Court proper under the Constitution, it would be prudent, in the long term interests of the Country’s system of justice that the whole exercise should be reconsidered by the SC in the same way as the Supreme Courts of some other democratic countries respond to public expressions of concern.  Alternatively, senior members of legal fraternity should forget about party affiliations and, for the greater good of the Country, study the issues raised by SNS and EP and, if justified, take steps to have this matter referred to a fuller bench for a comprehensive resolution of all outstanding questions relating to the issues raised.

CIMOGG is always conscious that there is a fundamental duty cast on the People to monitor what is going on in their name and satisfy themselves that Parliament, the President and the Judiciary – to whom the major components of the inalienable sovereignty of the People are delegated from time to time – carry out their responsibilities in accordance with the Constitution.  This contribution by CIMOGG is in fulfilment of its own duty to the People without any disrespect to the SC or the rest of the Judiciary.