Arrest and Detention of Gen. Fonseka - A Legal Perspective

by Sarath N. Silva LLM. PC. Retired Chief Justice

Every living being by nature cherishes liberty, security and freedom of movement. Law evolved as an instrument of regulation of human conduct and recognized from the earliest times that certain rights pertain by nature to all members of the human family. This body of rights that stem from Natural Law is appropriately designated Human Rights. The United Nations being the foremost international organization, established in the aftermath of the holocaust - the 2nd World War, as its first official act in December 1948 adopted and proclaimed the Universal Declaration of Human Rights. Its Preamble specifically states that the Declaration is a "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family (and) is the foundation of freedom, justice and peace in the World".

The Preamble further states that the "disregard and contempt for Human Rights resulted in barbarous acts which have outraged the conscience of mankind", alluding thereby to the repressive fascist regimes being the cause of the War and that, "it is essential if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that Human Rights should be protected by the Rule of Law".

Article 3 of the Universal Declaration states that everyone has a right to life, liberty and security of person and Article 9 provides that no one shall be subjected to arbitrary arrest or detention. The Human Rights stated in broad terms in the Universal Declaration were legally defined in two Covenants adopted by the United Nations in December 1966. Sri Lanka being an original State party to the Universal Declaration acceded to the two Covenants in June 1980. The Covenant relevant to the
issues addressed in this article is the International Covenant on Civil and Political Rights (ICCPR).

Article 9 of the ICCPR provides that;
1. Everyone has the right to liberty and security of person and no one shall be subjected to arbitrary arrest or detention and the deprivation of liberty shall be only on grounds and that in accordance with the procedure established by law;
2. Anyone arrested shall be informed at the time of arrest the reasons for his arrest and promptly informed of any charges against him and be brought before a judge or an officer authorized by law to exercise judicial power who will decide on the question of release or continued detention of such person.

Human Rights which assure liberty and freedom from arbitrary and illegal arrest stem from the Magna Carta (Ch 39) decreed in England in the year 1215; Declaration of the Rights of Man (paragraph VII) made by the National Assembly of France in 1792 in the aftermath of the French Revolution and the Fifth (1791) and the Fourteenth (1868) Amendments to the Constitution of the United States of America.

Our Constitution of 1978 has substantially incorporated the content of Article 9 of the Universal Declaration and the ICCPR and guaranteed by Article 13 the freedom from arbitrary arrest and detention. It is pertinent to note here that Sri Lanka having acceded to the ICCPR in 1980 is obliged in terms of Article 40 to report on the measures taken to give effect to the rights recognized in the Covenant. Since there were complaints of non compliance, the ICCPR Act No. 56 of 2007 was enacted by Parliament to give effect to certain Articles of the ICCPR. Thereafter, an opinion was sought by the President from the Supreme Court as to compliance by Sri Lanka and
the positive opinion given by the bench of 5 Judges presided by me was submitted to the European Union to avert a suspension of the GSP+ facility in 2008. It appears that this position has now reversed and the GSP+ facility is being suspended by the EU. Be that as it may the Fundamental Rights as contained in Article 13 (l) and (2) of our Constitution which guarantee freedom from arbitrary arrest and detention read as follows;

1. "No person shall be arrested except according to procedure established by law. Any person arrested shall be informed of the reason for his arrest."
2. "Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge of the nearest competent court according to procedure established by law, and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of such judge made in accordance with procedure established by law."

The procedure established by our law for the arrest and detention of a person reasonably suspected of having committed any offence is contained in the Code of Criminal Procedure Code Act No. 15 of 1979. The very clear sequence of provisions in Section 109 of the Code lay down the procedure for the investigation of an offence leading to the arrest of the suspected offender. Section 32 states the manner of making an arrest and Section 37 provides that any person arrested and held in custody shall be produced before a Magistrate within 24 hours.

The purported arrest and detention of General Sarath Fonseka, the unsuccessful candidate at the Presidential Election, who has challenged in Court the validity of the result of the elections and the manner in which the counting of votes was done, within a period of 12 days of the Election, has been done manifestly contrary to the Fundamental Rights guaranteed by Article 13 (l) and 13 (2) of the Constitution and the Human Rights recognized and agreed to by the Government of Sri Lanka as contained in Article 9 of the Universal Declaration and the ICCPR. The procedure followed in the purported arrest and continued detention is contrary to the provisions of the Code of Criminal Procedure Act. The person who purported to make the arrest is not an officer authorized to do so under the Code and the General has now been continuously held in custody for a period of over one month without being produced before a Judge or a competent Court as required by Article 13 (2) of the Constitution, Article 9 (3) of the ICCPR and Section 37 of the Code.

It is claimed that the arrest of the retired 4 star General was done and he is detained in terms of the Army Act (Cap. 625). The Army Act was enacted by Parliament in 1949 soon after gaining independence for the purpose of raising and maintaining an Army for Ceylon as the country was then known.

The only explicit provision in the Army Act which authorizes an arrest is contained in Section 150 which relates to deserters and absentees without leave. A police officer or in the absence of a police officer, an officer or soldier of the Army is authorized to arrest a deserter or absentee without leave and to forthwith produce such person before a Magistrates Court. Then there is provision for the hearing of evidence by the Magistrates Court and further orders being made. It is clear that the retired 4 star General has not had the benefit of procedural safeguards applicable in relation to a deserter or absentee without leave.

A broad provision as to persons liable to be taken to military custody is contained in Section 35 of the Army Act which provides that "a person subject to Military Law who commits any military or civil offence may be taken into military custody".

Section 57 extends the application of Section 35 to a period even after the person ceases to be subject to military law but in respect of offences committed whilst he was subject to military law. Hence the principal issue to be considered before one gets into the realm of offences, charges and so on, is whether General Sarath Fonseka was 'a person subject to military law' when he functioned as the Commander of the Army and later as the Chief of Defense Staff.

There is no complexity in deciding this issue since Part VII of the Act is itself titled "Persons subject to Military Law". Section 34 of this Part states that for the purposes of the Act, 'a person subject to military law' means a person who belongs to any of the following classes of persons:
(a) "All officers and soldiers of the Regular Force";
(b) "All such officers and soldiers of the Regular Reserve, Volunteer
Force...."
The term 'officer' is defined in Section 162 to mean 'an officer commissioned as an officer of the army" Part 11 of the Act is titled "Officers" and contains provisions commencing from Section 9 which deals with the commissioning officers to Section 12 as to the promotion and transfer of officers.

Part III of the Act is titled "Soldiers" and has provisions regarding their
enlistment. It is manifestly clear that the Commander of the Army is neither a
commissioned officer nor an enlisted soldier. The appointment of the Commander is provided for in Part I of the Act titled "Organisation of the Army". Section 8 of Part I of the Act provides that the President shall appoint "a fit and proper person to command the army" and when so appointed that person shall be designated Commander of the Army. Hence one need not even be a commissioned officer to be appointed to command the army. Even after appointment the Act does not describe him as an officer. But, specifically states that the person appointed shall be designated Commander of the Army. Hence the Commander of the Army is not a person subject to
military law in terms of the Army Act.

Military offences are set out in Part XII of the Act. Every offence defined in Section 95 to 130 is specifically worded to state that it applies only to a 'person subject to military law'. Therefore none of these offences apply to the Commander of the Army.

There are three types of Courts Martial provided for in the Act viz. a general court martial; a field general court martial and a district court martial. It is specifically stated in Sections 46 (2), 49 (1) and 51 (1) that any of these Courts Martial may try only a 'person subject to military law'. Hence there would be no question of the Commander of the Army being brought up before any of the Courts Martial for trial of any military offence.

Even the two sections referred to above that authorize the taking into custody of any person viz. Section 35 (whist in service) and Section 57 (1) (after ceasing to be in service) specifically state that they apply to situations in which a person subject to military law commits an offence. General Sarath Fonseka relinquished the position of the Commander of the Army in July 2009 and was appointed Chief of Defense Staff in terms of Act No 35 of 2009. Section 2 (3) of the Act provides that when the Commander of any force relinquishes his position to assume the post of CDS during the period he holds such post he shall deemed to continue as a member of the
regular force to which he belongs. This deeming provision does not go so far as to state that during such period this person would be subject to the Army Act or be subject to military law. The Commander of the Army who was not subject to military law when he held office cannot by any stretch of imagination be considered as being so liable after he relinquished such office.

The conclusion to be drawn that the Commander of the Army is not a person subject to military law and as such cannot be taken into custody, detained or tried by a Court Martial under the Army Act is consistent with the scheme of the Act itself. Sections 35 and 57 referred to above state that a person subject to military law who commits any offence may be taken into military custody. However, these sections do not provide for the procedure by which such person may be taken into custody. Such procedure is laid down in Section 36 (1) which states that "a senior officer may order into military custody a junior officer". The only instance where a junior officer may order into custody a senior officer is where such officer is engaged in a
quarrel, affray or disorder. The Commander is the highest ranking officer and as such there would be no officer senior to him who could order that the Commander be taken into custody. Similarly after a person subject to military law is taken into custody in terms of Section 40 only the 'commanding officer of that person' is empowered to investigate the charge against him and to take steps for a trial by Court Martial. There is no officer who could be "commanding", the Commander himself. As such it is inconceivable and, inconsistent with scheme of the Act to assume that the Commander of the Army is a person subject to military law as defined in the
Act who may be taken into military custody, detained, charged, tried and sentenced at a Court Martial. It would be preposterous to suggest that the Commander who is thus not liable whist in service becomes a person subject to military law and thereby becomes liable to be taken into military custody, detained, tried and sentenced by a Court Martial after he relinquished office. In any event the present Commander has never been a senior officer to the General and as such he cannot in terms of Section 36 (1) "order into military custody" the General considering the latter as a 'junior officer'. Furthermore the present Commander has never been the 'commanding officer' of the General, as such he is not empowered in terms of Section 40 (l) of the Act to cause an investigation against the General or to 'take steps for the trial of that person (the General) by a Court Martial' as provided in Section 40 (1) (b) (i) of the Act.

The position under the CDS Act No 35 of 2009 is no different. As noted before although the Act deems the General to be a member of the regular force of the Army whilst serving as CDS, he is not deemed to be 'a person subject to military law' under the Army Act. In any event the present Commander cannot be considered a 'senior officer' or the 'commanding officer" of Sarath Fonseka in the period the latter functioned as CDS since in terms of Section 2 (4) of the Act whilst serving as CDS he held the rank of General.

Viewed from a different perspective, the Army Act was existing law when the present Constitution was promulgated in 1978. It continued in force in terms of Article 168 (1) of the Constitution. However such continuation in force is subject to any express provision in the Constitution. In brief, it is a basic principle of interpretation that the Constitution being the superior law should prevail over ordinary laws. Therefore the Fundamental Rights guaranteed by Article 13 (based on the Universal Declaration and the ICCPR as noted above) which relate to arrest, detention trial and punishment, will prevail over the Army Act. These Fundamental Rights may be restricted in their operation to the members of the Armed Force only in the manner
provided by Article 15 (8) of the Constitution which reads as follows;

15 (8). "The exercise and operation of the fundamental rights declared and recognized by Article 12 (1), 13 and 14 shall, in their application to the members of the Armed Forces, Police Force and other Forces charged with the maintenance of public order, be subject to such restrictions as may be prescribed by law in the interest of the proper discharge of their duties and the maintenance of discipline among them."

It is clear from this provision that if General Sarath Fonseka's Fundamental Rights guaranteed by Article 13 of the Constitution assuring him the freedom from arbitrary arrest, detention, punishment, etc. is to be restricted upon any purported exercise of power under the Army Act, at the time of such 'arrest' he should have been;
1. A member of the Army
2. He should have been charged with the maintenance of public order;
3. The arrest should have been necessary to assure the proper discharge of
his duties as a member of the Army and
4. Necessary to maintain discipline in the Army.

I do not wish to labour the point but none of the conditions as laid down in Article 15 (8) to warrant a restriction of the Fundamental Rights guaranteed by Article 13 are met in relation to the purported arrest and detention of General Sarath Fonseka.
In conclusion I wish to state that from whatever perspective one may look at the matter - the Constitution; the Universal Declaration; the ICCPR; the Code of Criminal Procedure Act; the Army Act or the CDS Act; the purported arrest and continued detention of General Sarath Fonseka who is now a candidate nominated for the Parliamentary Elections is entirely contrary to law and justice. I do not state so in derogation of the lawful authority of any person or institution empowered to decide on the matter, but only to kindle the compassionate reflection of right thinking people on an issue of humanitarian concern.