Other Relevant Contributions

Presidential Poll Plan runs into a Storm

Under the above caption, ‘Ceylon Today’ of 16.11.2013 reported that “The Government’s plan to hold a Presidential Election in 2014 has run into a storm of a constitutional crisis as there is no provision in the 18th Amendment to the Constitution that allows an incumbent President to contest a Presidential Election before the end of his current presidential term”.

When contacted by Ceylon Today, former Chief Justice Sarath N.  Silva is reported to have, inter alia, said:

“the 18th Amendment does not specifically mention about holding a presidential election after four years were completed in a second term”.

“according to the 1978 Constitution, the President can hold an election after four years of his first tenure,”

“the 18th Amendment does not state the President can contest for the third time before completing his second term,”

“one might argue that if the President can contest for the Presidency after four years of his second tenure, it has to be the same with the third tenure too”,

“However, if the Constitution has not specifically stated that, the law does not accept it”, and

“the government appears to be stuck there, but they can go to the Supreme Court and seek an interpretation.”

However, the stark reality is that paragraph (3A)(a)(i) of Article 31of the Constitution has been amended in September 2010 by the 18th Amendment to read as follows:

“Notwithstanding anything to the contrary in the preceding provisions of this Chapter, the President may, at any time after the expiration of four years from the commencement of his current term of office, by proclamation, declare his intention of appealing to the people for a mandate to hold office, by election, for a further term:

Provided that, where the President is elected in terms of this Article for a further term of office, the provisions of this Article shall mutatis mutandis apply in respect of any subsequent term of office to which he may be so elected.”

President Rajapaksa, who is himself a Senior Attorney-at-Law, has already been advised by the Supreme Court that his second term is deemed to have commenced only at the time he took his oaths in November 2010. The plain and unambiguous meaning of Article 31 of the Constitution  as amended by the 18th Amendment is that, the President may hold a Presidential Election at anytime after completing four years of his second term in November 2014 and before he completes his second term in November 2016, and the same will apply to his third tenure too.”

This is the only valid interpretation of Article 31(3A)(a)(i) that could have been tendered to him by the author of the 18thAmendment  Prof G.L.Pieris and/or his Senior Legal Advisor, former Chief Justice Asoka Silva. Presumably dissatisfied with this interpretation, the President apparently is, probably on the basis of the aforementioned opinion of his one time mentor and ally former Chief Justice Sarath N. Silva, seeking a more favourable interpretation from his former Senior Legal Advisor to the Cabinet and present Chief Justice Mohan Pieris.

Clear signs of total depravity? – Oh tempora, Oh mores!

Elmore Perera, Attorney-at-Law
Founder CIMOGG, Past President Organisation of Professional Associations
21st November 2013

Chief Justice says some Lawyers Too Old

Under the above caption the ‘Sunday Leader’ of 17.11.2013 reports that the CJ says “most Lawyers above 70 years old are not up to date with the current laws and regulations” and “lose cases making an unfavourable impact on their clients”.

Still laughing, I telephoned my friend Stanley Jayasinghe to give him the good news that he will not, in future be required to distrust me. He had never been able to come to terms with my advise to him (when I was about 70 years of age) that “Even I should not be trusted when I am in my black coat.”

Within 24 hours I became aware of the fact that the ‘Ceylon Today’ of 16.11.2013 had carried an article under the caption “Presidential Poll plan runs into a Storm”. It was reported therein that former CJ Sarath N. Silva (who is well nigh 70 years of age) when contacted had, inter alia, said that :

(i)       the 18th Amendment does not specifically mention about holding a Presidential Election after 4 years were completed in a second term,

(ii)     the 18th Amendment does not state the President can contest for the third time before completing his second term,

(iii)   one might argue that if the President can contest for the presidency after four years of his second tenure, it has to be the same with the third tenure too,

(iv)   however, if the Constitution has not specifically stated that, the law does not accept it, and

(v)     the government appears to be stuck there, but they can go to the Supreme Court and seek an interpretation.

The fact of the matter is that in September 2010, the 18th Amendment amended para (3A)(a)(i) of Article 31 of the 1978 Constitution to read as follows:

“Notwithstanding anything to the contrary in the preceding provisions of this Chapter, the President may, at any time after the expiration of four years from the commencement of his current term of office, by proclamation declare his intention of appealing to the people for a mandate to hold office, by election, for a further term: provided that where the President is elected in terms of this Article  for a further term of office, the provisions of this Article shall mutatis mutandis apply in respect of any subsequent term of office to which he may be so elected”.

Sarath N. Silva has obviously not been “up to date” with this significant change in the Supreme Law effected within 16 months of his relinquishing the position of Chief Justice. This seems to justify the view expressed in the Bar Association that the termination should be at the age of 65.

Having stated categorically what in his view the Constitution does not state, Sarath N. Silva goes on to say that in such circumstances the law does not accept it and opines that the government can go to the Supreme Court and seek an interpretation.

There is not a shade of doubt that if the government acts on this seriously erroneous advice and seeks an opinion of the Supreme Court, the present CJ will meekly oblige by furnishing  the interpretation sought by the government?

Ironically, in this instance, acting on this patently faulty advice will have a most favourable impact on this client. This will not be the first time that, purportedly acting on advice tendered by “Legal Luminaries”, this government has circumvented unambiguous constitutional provisions.

Elmore Perera, Attorney-at-Law
Founder CIMOGG, Past President OPA
21st November 2013

POINT OF LAW!

Has a three-member Court Martial been lawfully vested with power to impose upon an Army Officer a sentence of imprisonment?

A general Court Martial is instituted by the President (or an officer authorized by him) in the exercise of the executive power of the People. Clearly, therefore: “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) for the administration of justice which protect, vindicate and enforce the rights of the People, as described in Article 105 of the Constitution and has no place in the Judiciary as set out in Chapter XV of the Constitution. None of the provisions of that Chapter, including, in particular, the provisions enshrining the independence of the judiciary (Articles 107 – 117), have any relevance with respect to a Court Martial. Any member of the Armed Forces who sits on a Court Martial does not hold paid office as a member of the Court Martial, nor does he fall within the definition of “Judicial Officer” found in Article 170 of the Constitution, although he is bound to act judicially when called upon to sit on a Court Martial.” This considered opinion has been explicitly expressed by at least one Judge of the Supreme Court. There can be no doubt that every single member of the Judiciary referred to in Chapter XV of the Constitution cannot rationally dissent from this opinion.

The failure of any member of a Court Martial to verily act judicially when sitting on a Court Martial, does not attract any adverse consequences, provided of course, that such act does not attract the disapproval of the Executive that appointed him as such member. Sadly however, there is no protection for a ember who indeed acts judicially, but in doing so, incurs the displeasure of the Executive from whom he derives his authority.

The all-important fundamental right enshrined in Article 13(4) of the Constitution provides that – “No person shall be punished with death or imprisonment except by order of a Competent Court, made in accordance with procedure established by law.” Having regard, inter alia, to 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, the Chief Justice and four judges of the Supreme Court have held that the Court Martial in terms of the Army Act, is a “Court” in terms of Article 89(d) of the Constitution.

The disqualification referred to in Article 89(d) of the Constitution arises from “a sentence of imprisonment (by whatever name called) for a term not less than six months imposed after conviction by any Court (now explicitly including Court Martial) for an offence punishable with imprisonment for a term not less than two years.”

Whilst it is correct to say that a Court Martial is indeed vested with the power to impose sentences of death or imprisonment on conviction of certain persons for certain offences in terms of Section 133 of the Army Act, there can be no doubt that such power can be lawfully exercised only on conviction of certain persons for certain offences according to law.

Section 131 of the Army Act provides that sentences of death or imprisonment may be imposed only where a person is convicted of the offence of treason, murder, culpable homicide not amounting to murder, or rape.

Section 46(2) of the Army act provides that “A general Court Martial shall –where it is convened to try a person for the offence of treason, murder or rape, consist of not less than five officers.

The Court Martial convened to try Sarath Fonseka consisted of only three officers and were therefore not convened to try an offence of treason, murder or rape.

Section 132 of the Army Act provides that where an officer is convicted by a Court Martial of any civil offence not mentioned in Section 131 (i.e. an offence other than treason, murder or rape) he is only liable to be cashiered or to suffer any less severe punishment in the scale set out in Section 133.

There is no provision in the law to impose a sentence of imprisonment on conviction of an officer for any such offence. In these circumstances, the sentence of imprisonment imposed on Sarath Fonseka by a three-member Court Martial is clearly not according to law and therefore ab initio void and cannot be an impediment to his continuing as a Member of Parliament. More urgently, the sentence of imprisonment must be declared invalid and Sarath Fonseka released without any further delay, to pre-empt any further irreparable harm being caused to him.

Elmore Perera, Past-President OPA,

Founder of CIMOGG.

The contents of the entire article reproduced below were presented on 10 November 2010 to the LESSONS LEARNT & RECONCILIATION COMMISSION appointed by Sri Lankan President Mahinda Rajapakse. A brief extract of the article appeared in the SUNDAY ISLAND of 14 November 2010. The writer, Mr Elmore M. Perera, is inter alia an Attorney-at-Law, a Chartered Management Accountant, former Surveyor General and past President of the Organisation of Professional Associations.

LESSONS TO BE LEARNT FOR RECONCILIATION

Chairman and Members of the LESSONS LEARNT & RECONCILIATION COMMISSION, I thank you for inviting me to share my experience and views with you.

A News Editor’s response to a clarification of a news report of a representation made to this Commission recently was “We stand by our story…. What Mr X contests is background information not attributed to him. They were clearly presented as our views.  Journalism, Mr X should note, is different from stenography and the press has freedom to weave background information into news reports”. I have suffered silently by the artful weaving of background information into news reports and have therefore taken the precaution of committing to writing what I wish to state in explicit terms.

When Ceylon gained Independence in 1948, Sinhalese, Tamils, Muslims, Burghers, Malays and other racial groups, who were Buddhists, Hindus, Christians, Muslims or of other religious groups, co-existed in amity as truly equal “Ceylonese”. Race, religion, caste or even social standing were irrelevant in the choice of one’s friends. We had inherited an enviable infrastructure of government institutions and were subject only to an entrenched constitutional provision guaranteeing the rights of the minorities. In-built checks and balances facilitated the “Good Governance” of the abundant natural resources of the country by a Cabinet of 12 Ministers together with outstanding, independent public servants and a Judiciary which held the scales even without fear or favour. Each racial or religious group had characteristics unique to them. These character traits were never ridiculed (except in fun, as in the play “He comes from Jaffna”).  The rich diversity blended perfectly for the benefit of society as a whole. As you well know, Mr. Chairman, the Burghers made a very significant and unique contribution to the dispensation of Justice in this country. Our Law Reports bear ample testimony to this fact. Overwhelming numbers of Professors and University Lecturers, selected entirely on merit, happened to be from the minorities, but that only enriched the broad and liberal education we received. Ceylon was indeed a country where every prospect pleased but …. . It was in such a situation that Lee Kwan Yew’s declared aim was to make Singapore another Ceylon.

I entirely agree with the wisdom of Winston Churchill’s statement that “If we pick a quarrel between the past and the present we shall surely find that we have lost the future” but am compelled to recount the past only to learn lessons from it for the future.

Beginning with the “Sinhala Only” policy of 1956, which disregarded the multi-cultural and pluralistic nature of society, the removal of the constitutional provision guaranteeing minority rights, giving the Sinhala language and Buddhism an exalted position, the abolition of the Public Service Commission, the vesting of extensive executive powers in the Ministers by the adoption of an autochthonous Constitution in 1972 and thereafter the institution of an Executive Presidency in 1978, which enthroned materialism and undermined all spiritual values, the trust between the racial and religious minorities and the majority Sinhala Buddhists, was effectively shattered. Having seen all this happen, on 24 August 2007, the same Lee Kwan Yew reflected that “In 1965 (when Singapore got its independence), we had 20 years of examples of failed states. So we knew what to avoid – racial conflict, linguistic strife and religious conflict. We saw Ceylon. Thereafter, we knew that if we embarked on any of these romantic ideas to revive a mythical past of greatness and culture, we’d be damned”.

The 1983 racial riots were a disaster. I need say no more. Overnight, Tamils were treated as being sub-human. Many of those who could leave the country by lawful or even unlawful means did so. Those who remained were subjected to arbitrary, humiliating treatment. Rounding up of 30 to 40 Tamil youth on Friday evenings, producing them before Magistrates to be remanded, and later releasing them on bail, after they had paid lawyers Rs1,000/- each for this purpose, was a regular occurrence in many parts of the city. Tamils, who could readily be identified as such from their National Identity Cards, were at the mercy of the law-enforcement agencies which arbitrarily enforced even laws of their own making. In this context, the emergence of Prabhakaran, as the defender of their rights, was understandably welcomed with relief, even by those Tamils who strongly disapproved of his methods, for the simple reason that there seemed to be no one else capable of safeguarding and restoring their self-respect. Perhaps for this reason, every Tamil was seen by the security forces as a potential LTTE supporter.

Except for brief periods when President Premadasa and President Kumaratunge made feeble attempts at reconciliation, there were no consistent attempts made to seek reconciliation. It was limited to lackadaisical efforts to defeat the LTTE militarily. Many Tamils were driven to feel that it was “better to fight and die rather than live like slaves”, in the hope that, “at least they would get a free state where Tamils can live a life of dignity”.

India felt that President Kumaratunge was incapable of making peace and that Sri Lanka needed a leader who was prepared to shake hands with the LTTE with a long term vision to bring peace to the country. India also felt the need for an international player to facilitate peace in Sri Lanka, and President Kumaratunge and the LTTE eventually settled on Norway as the facilitator. Norway’s special envoy Eric Solheim met Prabhakaran for the first time in Kilinochchi in November 2000. In December 2000, the LTTE offered a ceasefire and extended it month by month for four months. In July 2001 the LTTE dealt a shattering blow and virtually overran the Katunayake International Airport.

Ranil Wickremasinghe became Prime Minister in December 2001 and events accelerated in New Delhi and Colombo – all under wraps. Overseen by New Delhi, the CFA (Cease-Fire Agreement) was finalized with a crucial contribution by Norway. It was signed by Prabhakaran on 21 February 2002 and by Ranil Wickremasinghe on 22 February 2002.

The CFA was a watershed in Sri Lanka’s blood-soaked history. The LTTE became very relaxed. Discipline slackened. The rough and tough life gave way to easy life. The LTTE was not used to this. Many colleagues got married within the ranks, including some leaders. People had fallen in love over a period of time and were waiting for the first opportunity to tie the knot. Family life then became the dominant factor for many. Desertions shot up. Many left the camps never to return. Significantly, even Karuna revolted.

When Sri Lanka was to elect a new President in 2005, Prabhakaran callously spiked the chances of Wickremasinghe by asking Tamils to boycott the elections. This alone led to Mahinda Rajapaksa’s victory, by a very narrow margin. Mahinda Rajapaksa was considered a Sinhala hardliner. The LTTE’s grotesque thinking was that a Sinhala nationalist in Colombo would inevitably widen the Tamil-Sinhalese gulf. This would surely lead to war and to predictable civilian suffering. The LTTE would then claim that there was no way but to carve out an independent Tamil Eelam as in East Timor and Kosovo. It did not happen that way, but the 2002 CFA had laid the foundations for the long term destruction of the Tigers as a military force.

By this time, Maj-General Sarath Fonseka, who had been overlooked by President Kumaratunge for appointment as Army Commander, was a Green Card holder and had already packed his bags to take up residence in the USA after his retirement, which was to take effect on 5 December 2005. On or about the 20 November, 2005, Gotabaya Rajapaksa had been appointed Secretary/Defence. He had retired from the Army as a Lieutenant Colonel several years earlier, and was therefore well aware of all the strengths and weaknesses of Sarath Fonseka, including all those not reflected in his personal file. He urged Sarath Fonseka to accept appointment as Army Commander, stating that it was he, and he alone, who could defeat the LTTE militarily. Having considered this request Sarath Fonseka specified certain conditions stating that it was only if all those conditions were unconditionally accepted by him and his brother (H.E. the President), would he agree to undertake this arduous assignment. He is reported to have told an Indian journalist: “When I took over (in late 2005) most officers had the mentality that we cannot win this war, as had been the case in the past three Eelam wars”.

Sarath Fonseka miraculously survived a LTTE suicide attack on 25 April 2006. A statement “reported” to have been made by Sarath Fonseka disappointed and saddened me, even though I conceded and respected his legal right to have and even express those views. He was reported to have stated that “Sri Lanka is for Sinhala Buddhists only and others must necessarily accept that they are here only with the leave and license of the Sinhala Buddhists”. How the war was prosecuted and finally won on 19 May 2009 is too well known to need any input from a mere civilian like me. Sarath Fonseka was thereafter quickly “elevated” to the post of Chief of Defence Services.

On or about 12 November, 2009 Sarath Fonseka tendered notice of retirement with effect from 30 November 2009. However, H.E. the President accepted his retirement with effect from 14 November 2009. This act necessarily implied that there were no “charges” pending against him.

On 9 December 2009, a victory memorial was unveiled to the Nation by H.E. the President at Puthukudiyirippu “in order to mark the event of greatest victory over the darkest period of its time for nearly three decades which came to an end on the 19 May 2009 when the Golden Sun of the Peace of all the people rose, wiping out the darkness of the North and East”.

It was “a tribute to the glorious Forces and to the State leadership by H.E. President Mahinda Rajapaksa, Commander-in-Chief of Armed Forces, who was born for the grace of the Nation, with the guidance and coordination of the Secretary /Defence Hon. Gotabaya Rajapaksa, and the operational command and military leadership of the Commander of the Army Lt. Gen. Sarath Fonseka, who led the military for the greatest victory through a humanitarian operation where terrorism was entirely eradicated from our motherland and restoring its territorial integrity and the perpetual peace”. It is significant that the Secretary/Defence and the Service Commanders (whose names were not even mentioned in the plaque) were all present but Sarath Fonseka had presumably not been invited.

Recognising that as an independent nation, proud of its multi-ethnic polity, Sri Lanka needs to undertake a journey of common goals in a spirit of co-operation, partnership and friendship, to learn lessons from its recent history, and that it was opportune to reflect on the sufferings of all Sri Lankans due to the conflict phase, and assure to its people an era of peace, harmony and prosperity having regard to their common aspirations, H.E. the President has, in the interest of public welfare, reposed great trust and confidence in your prudence, ability, independence and fidelity and has appointed you as his Commissioners to make recommendations that would ensure that there will be no recurrence of any internecine conflicts.

Admittedly, Sri Lanka is at a critical juncture in its long history. I dare say that the very survival of Sri Lanka as a civilised nation will depend largely on the ability and commitment of the LLRC to deliver on this seemingly “tall order”.  Your Commission is handicapped by the very poor record of previous Presidential Commissions, most of which were robbed of their legitimacy and credibility by lack of transparency and over-politicisation. Several individuals and organisations have summarily discounted your Commission, too, as being a mere political gimmick. Your plea that you be not prejudged but judged on your results has been welcomed by many as an indication of your genuine desire to truly “learn lessons” from the submissions made, and then make recommendations to ensure that there will be no recurrence of any internecine conflicts, as required by H.E. the President.

I well remember that in 1982, as Additional Director of SLIDA, I acceded to the request of Major Montague Jayawickrema, the Minister of Public Administration, to make a study of the workings of the Pensions Department and thereafter submit my recommendations for changes to be effected. However, the very next day I was told by Mr V.T. Navaratne, the Director/SLIDA, that the Minister had indicated to him what the findings of my study should be. I forthwith informed the Director that if that were the case the Minister should undertake the study himself.

You are undoubtedly aware that there are many who honestly believe that you are in a similar situation today. Mr Chairman, you politely declined the offer of an extension of tenure as Attorney General beyond the mandatory age of retirement – due, I believe, to your respect for the Rule of Law. I therefore choose to believe that the LLRC is not fettered by any desired findings, and hope and pray that I will not have reason to change that. I am confident that your respect for the Rule of Law will guide the deliberations and recommendations of this Commission.

The widely prevalent perception among Tamils is that “After so many years of fighting for Tamil Eelam, Tamils have nothing to-day. We have gained nothing. On the contrary, we have lost whatever little we had when militancy started. Either the LTTE should have made permanent peace or it should not have rested until attaining Tamil Eelam”. They are not so sure that the end of war will lead to peace.  They say that “The LTTE may not rise again but there would never be permanent peace in Sri Lanka. The Sinhalese would never accept Tamils as their equals. They will always look down upon us. That is for sure”. Is this the multi-ethnic polity that Sri Lankans are proud about? Surely not!

The International Community can only support but cannot deliver peace. Peace can only be delivered by Sri Lankans themselves. That is precisely what the LLRC has been charged with.

Sonia Gandhi has consistently pleaded for a just settlement of Sri Lanka’s ethnic conflict in a manner that Tamils feel justice has been done to them.

In August 2008, Gotabaya Rajapakse conceded that “Tamil nationalism cannot be wished away without a genuine power sharing deal” and stated that “Ultimately we all have to learn to be Sri Lankans. The day we are able to think as Sri Lankans first, and later as Tamils, Sinhalese, Muslims and Burghers, that is the day we will win. That will be the winning point.”

A recent editorial stated that: “President Mahinda Rajapaksa divided all Sri Lankans into two main categories after the conclusion of the war – patriots and traitors. He also claimed that there were no minorities in this country. His government has drawn heavy flak from its critics for branding its opponents traitors, and harassing them.” Presumably Sarath Fonseka has been branded a traitor and is being subjected to continuous harassment.

The Bishops of the Church of Ceylon have submitted to you that “Political and Constitutional reforms are needed to address root causes of the ethnic conflict” and that “It is justice not a pardon that Sarath Fonseka needs”.

Cardinal Malcolm Ranjith has stated that “Only a Political solution could address grievances of minorities”. Whilst reiterating commitment to an undivided Sri Lanka, his eminence stressed “the pivotal importance of confidence building measures in the aftermath of the war and a common program involving all religions to promote peace and harmony. Terrorism or the division of the country on ethnic lines could never be justified. Political leadership should not play politics at the expense of the country but work for national harmony. Now that the decades old bloody war was over, Sri Lanka cannot afford to experience another conflict. Nothing is as important as preserving peace”

Commenting on these submissions, a recent editorial stated that “The perspectives of Catholic and Anglican Priests on Sri Lanka’s ethno-religious issues and other vexed problems that religious and ethnic minorities are faced with need to be appreciated and taken on board. Their submissions have lent a great deal of credibility and acceptance to the LLRC at a time when some leading international human rights outfits have chosen to disparage and boycott it in favour of Ban Ki Moon’s Panel on Sri Lanka. The LLRC is the ideal forum for those whose views are at variance with the government and the dominant school of thought re the ethno-religious tensions, and they “should be given the opportunity to articulate their opinion freely. Their views and attitudes are sure to lend a fresh perspective to the on-going debate on the causes of the conflict, which resulted from discontent, frustration and resentment in some quarters. Lack of transparency and over-politicisation has robbed earlier Presidential Commissions of their legitimacy and credibility”.

A recent news report stated that “It is noteworthy that the tiger brand of violence has ceased in Sri Lanka. There has been no LTTE-sponsored violence in any part of the Island for the past 18 months. Even as the country heaves sighs of relief over the absence of Tiger-inspired violence and moves forward sluggishly to heal the wounds and scars of war, there does loom large the question whether the current peace is permanent or merely an interlude”.

It is my humble submission that the chief reason for the failure of the CFA to achieve a lasting peace, pre-empting the type of military action that was ultimately resorted to, was largely due to the fact that the “peace facilitator” was also the sole “peace monitor”. The failure to nip in the bud the initial violations of the CFA resulted in the LTTE flagrantly violating the CFA more than 3000 times, making a mockery of the CFA. The obvious lesson to be learnt is that the roles of “facilitator” and “monitor” can never be successfully merged. Is it not the identical situation when Ministries, whose prime role is to plan and monitor the functions of the executing agencies (government departments, and State Corporations and Agencies), in fact take control of the very functions they are expected to monitor? A case in point is the Ministry of Sports administering several Sports by means of Interim Committees or individuals appointed by the Ministry!

Quis custodiet ipsos custodes (Who guards the guardians)?

Mr Chairman, you are reported to have stated that the civilians in the Vanni were not interested in Constitutions. Sadly that is true perhaps of 99% of Sri Lankans. Admittedly, that places a huge burden on the concerned 1% to ensure that the Constitution truly safeguards the sovereign People from arbitrary action. You were present in Temple Trees on the 11 March 2008, when H.E. Mahinda Rajapaksa asserted that the Constitutional Council was constituted of nominees of political parties and that it should really be constituted of representatives of civil society. In clear disregard of that view, the 18th Amendment has replaced theConstitutional Council with a Parliamentary Council constituted exclusively of representatives of political parties. The outcome of the LLRC will be a clear pointer to what the people may legitimately expect from those appointed by the President to serve on these Commissions.

Mr Chairman, I have reserved for the last what I consider to be the most urgent matter. Your mandate clearly requires that recommendations be made to prevent internecine (mutually destructive) conflicts in future.

Without any doubt, the most pressing internecine conflict in Sri Lanka today is the continuing incarceration of Sarath Fonseka. Several Superior Court Judges have already declined to hear related cases before them, citing personal reasons. Justice meted out to Mahinda Rajapaksa M.P. by the Supreme Court headed by Chief Justice Neville Samarakoon in 1980 and 1982, in terms of the provisions in the 1978 Constitution, have been cited with approval. I wish to draw your attention first to Section 2(1) of the Evidence Ordinance which states explicitly that “This Ordinance shall apply to all judicial proceedings in or before any Court other than Courts-Martial; and secondly to the provisions in Parts XIII and XIV of the Army Act re “Punishments by Courts Martial in respect of Civil Offences” and “Scale of Punishments by Courts Martial” respectively.

Section 131 provides that: (a) “Where a person subject to military law is convicted by a Court Martial of the offence of treason or murder, he shall be liable to suffer death”, and (b) “Where a person subject to military law is convicted by a Court Martial of the offence of culpable homicide not amounting to murder, or rape, he shall be liable to suffer simple or rigorous imprisonment for a term not exceeding 20 years”. Section 132 provides that where a person subject to military law is convicted by a Court Martial of any other civil offence not mentioned in Section 131 he shall be liable, if he is an officer, to be cashiered or to suffer any less severe punishment in the scale set out in section 133 or to suffer the punishment prescribed for such offence by any law of Sri Lanka other than this Act.

Section 133 provides that subject to the provisions of Section 134, the following shall be the scale of punishments, in descending order of severity, which may be inflicted on officers convicted of offences by Courts Martial:

(a) death;

(b) rigorous imprisonment;

(c) simple imprisonment;

(d) cashiering;

(e) dismissal from the army;

(f) forfeiture, in the prescribed manner, of seniority of rank, either in the army or in the corps to which the offender belongs, or in both; or, in the case of an officer whose promotion depends upon length of service, forfeiture of all or any part of his service for the purposes of promotion;

(g) severe reprimand or reprimand;

(h) such penal deductions from pay as are authorized by this Act.

It is abundantly clear that the imposition of a sentence of imprisonment in respect of the charges levelled against Sarath Fonseka in the Court Martial is ultra vires and therefore ab initio void. In view of the apparent inability of the State to prevent the recurrence of the breakdown of discipline in the Prison, which occurred a few days ago, and consequently to guarantee Sarath Fonseka’s security, I urge the Commission to recommend to the President, as a matter of the greatest urgency, the immediate invalidation of the Order of Imprisonment. Your failure to act decisively now, when it is opportune to do, so could result in the “slow suffocation of the spirit and amputation of the dreams” not only of Sarath Fonseka but of all Sri Lankans.

Let me conclude with the words of William Wordsworth:

“We shall exult if they who rule the land

Be men who hold its many blessings dear,

Wise, upright, valiant not a servile band

Who are to judge of danger which they fear,

And honour which they do not understand.”

Elmore M. Perera
10 November 2010