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Fonseka trial illegal: ex-CJ

[Express Buzz, Monday, 15 March 2010 06:16 No Comment]

Former Chief Justice of Sri Lanka Sarath Nanda Silva has said that the former army commander Sarath Fonseka cannot be tried by court martial under the Army Act because he is, by the definitions of the Act, neither an army officer nor an army soldier.

In an article published in many of the leading dailies of Colombo on Sunday, Justice Silva pointed out that as per the Army Act of 1949, Gen Fonseka was the army commander, a category distinct from officer and soldier. And not being an officer or soldier, Fonseka would not come under the Army Act, he said.

The former Chief Justice, who is one of Fonseka’s legal advisors, pointed out that as per the Army Act, the army commander need not be from any of the services. He could well be someone from outside the armed forces. According to Section 8 of Part I of the Act, the President of Sri Lanka could appoint any person he thought fit to the position of army commander.

The Act, Justice Silva said, did not describe the army commander as an army officer but specifically as army commander, thereby making a distinction between him and the officers and soldiers of the army.

Therefore, Fonseka could not be tried by court martial and any case against him would have to be pursued in a civilian court, Justice said.

He pointed out that as per Section 34 of Part VII of the Army Act, only officers and soldiers of the regular and volunteer forces could be tried by court martial.

According to Section 40, only a commanding officer of the person who has committed an offense can order an investigation against him.

In Fonseka’s case, all other officers in the army had been junior to him and none had been his commanding officer. Therefore, the present army commander Lt Gen Jagath Jayasuriya could not order any investigations against Fonseka.

Meanwhile, the General has refused to accept the chargesheet handed over to him by the military prosecuting officers, saying that he does not recognize the proceedings as legal.

He had challenged in the Supreme Court, any trial by court martial.

[Full Coverage]

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