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Imprisonment sentence must be declared invalid and Sarath Fonseka released immediately

Feb 12, 2011 5:10:00 PM- transcurrents.com

by Elmore Perera

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 member 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 is Past-President OPA and Founder of CIMOGG - The Citizens' Movement for Good Governance)