Sarath Fonseka- Has he been denied the protection of the Rule of Law?

Even in regard to the “White Flag case” the investigating officer stated that he considered the then Inspector General of Police (I.G.P.) to have been the first complainant. A ludicrous state of affairs! Section 37 of the code states that the arresting officer shall not detain a person for more than 24 hours and that such person shall be produced before a Magistrate. As noted above, Article 13 (2) of the Constitution provides that  further detention shall be only on the order of such Magistrate made according to law. Plainly, Fonseka was not produced before a Magistrate or any judge and no order was made by any Magistrate or judge directing further detention. It appears to be the position of the authorities that Fonseka was arrested under the Army Act. Even then the fundamental right guaranteed by Article 13 of the Constitution being the same in content as Article 9 of the ICCPR should prevail. Article 15 (8) of the Constitution permits a restriction of the fundamental right guaranteed by Article 13 in respect of members of the Armed Forces only if it is prescribed by law in the interest of the proper discharge of their duties and maintenance of discipline among them. This criteria cannot be applied to a retired officer who is not in service.
Even assuming that the Army Act applied to the General who had retired, the only provision there for an arrest is in section 36 (1) which provides that a senior officer may direct the arrest of a junior officer who being subject to military law commits a military or civil offence. A junior officer may direct the arrest of a senior officer who being subject to military Law “is engaged in a quarrel, affray or disorder”. It appears that Fonseka’s arrest was ordered by the present Commander, Lt. General Jayasuriya who was junior in rank to Fonseka and no arrest could have been made in terms of Section 36 (1). Section 57 (1) which permits action being taken against a person who has ceased to be subject to military law within a period of six months, does not contain any procedure as to the manner in which any arrest may be made. Article 13 (1) of the Constitution and Article 9 of the ICCPR permits an arrest to be made only in accordance with the procedure established by law. In the absence of such procedure no arrest could be made and the purported arrest of Fonseka was outside the pale of law.
Pursuant to the purported arrest he was charged before a Court Martial appointed by the President and sentenced to two and half years rigorous imprisonment. The decision that Fonseka should be tried before a Court-Martial was taken by Lt. General Jayasuriya who was junior in rank to Fonseka. In terms of section 40 (1) of the Army Act only the “Commanding officer” of a person could decide that such person should face a trial before a court martial. Lt. General Jayasuriya was never the Commanding officer of Fonseka. On the contrary he was a sub-ordinate. Thus the decision that Fonseka should face trial before a Court Martial was not made in accordance with the law.
The allegations contained in the charges for which he was imprisoned by the Court Martial did not relate to any military matter. They were for a failure to take action in terms of “paragraph 1:4: 2 and 1: 4: 3 of the procurement guidelines of 2006”. These guidelines were issued by the National Procurement Agency which has been defunct for quite some time. The Agency was a non-statutory body and the guidelines were not issued under any law or regulation. It was alleged that Fonseka as the chairman of the Army tender board should have disclosed a connection which his son-in-law had with an agent of an Australian Company to which 4 tenders were awarded. The tenders were awarded in compliance with the tender procedure on the recommendation of the Technical Evaluation Committee. There was no loss whatsoever to the government by the award of the tenders. The prosecutor specifically stated that he was making no allegation of any fraud on the part of Fonseka. And, 6 other tenders submitted through the same agent had been rejected. Fonseka stated that he was unaware of any connection which his son-in-law had with the company and the Registrar of Companies stated that the son-in-law’s name is not included as a Director or shareholder of the company. Nevertheless, Fonseka was convicted and imprisoned in consequence of which he lost his seat in Parliament.
I would not make any comment as to the “White Flag case” which is pending in appeal except to note that Fonseka would go down in the annals of legal history as a person sentenced to three years rigorous imprisonment where the offence consisted of a single answer to a question put by an Editor of a newspaper.
Alas! Has he been denied the protection of the Rule of Law?