A Violation Of The Constitution?
- Move to appoint SF through the UNP’s national list to Parliament
By Mandana Ismail Abeywickrema
A senior lawyer on condition of anonymity explained to The Sunday Leader that Article 91 of the Constitution clearly stipulates that a member of the armed forces cannot be appointed to Parliament.
Article 91 (1)(xi) of the Constitution stipulates that no person shall be qualified to be elected as a Member of Parliament or be eligible to sit and vote in Parliament if he is a member of the Regular Force of the Army, Navy or Air Force.
The post of Field Marshal is defined as a very senior military rank, ordinarily senior to the general officer ranks. Usually it is the highest rank in an army, and when it is, few (if any) persons are appointed to it. It is considered as a five-star rank (OF-10) in modern-day armed forces in many countries.
Given that Fonseka is in the active armed forces, legal experts opine he cannot be appointed to Parliament.
Also, a judgment delivered in 2001 by Justice Mark Fernando in the Samaraweera Weerawanni case, states that unless an individual’s name is in the national list, he/she cannot be appointed.
When questioned by The Sunday Leader, President’s Counsel Kushan de Alwis said that in the event Fonseka is appointed to Parliament through the national list while serving as the Field Marshal, it would be a violation of the country’s Constitution.
He explained that the Field Marshal gets a salary and perks for his service and is technically a member of the forces.
“He can’t wear two hats. He cannot serve in the forces and also get appointed to parliament and eventually hold a ministerial portfolio. It is a contradiction,” de Alwis said, adding that it is a violation of the Constitution that can be challenged in the Supreme Court.
“There is a reasonable chance of success for such a case,” the President’s Counsel observed.
Meanwhile, Fonseka also participated in the Independence Day celebrations held at Galle Face last week in the military attire of the Field Marshal, further confirming that he is very much active in the forces.
A final decision on the appointment of a member to parliament from the UNP’s national list that fell vacant following Gunawardana’s demise is to be made at the party’s Working Committee meeting scheduled for tomorrow (8). Fonseka’s Democratic Party entered into a memorandum of understanding (MoU) with the UNP last Wednesday (3).
“There is a reasonable chance of success for such a case,” the President’s Counsel observed.
Meanwhile, Fonseka also participated in the Independence Day celebrations held at Galle Face last week in the military attire of the Field Marshal, further confirming that he is very much active in the forces.
A final decision on the appointment of a member to parliament from the UNP’s national list that fell vacant following Gunawardena’s demise is to be made at the party’s Working Committee meeting scheduled for tomorrow (8).
Fonseka’s Democratic Party entered into a memorandum of understanding (MoU) with the UNP last Wednesday (3).
