Supreme Court decides: Court Martial court of law; Court of Appeal delivers Supreme Court verdict:

The Court Martial in terms of the Army Act is a ‘Court’ in terms of Article 89 (d) of the Constitution, the Court of Appeal delivering the reasons they received from the Supreme Court stated yesterday.

Earlier the Court of Appeal referred to the Supreme Court to determine -”Whether the words ‘any court’ referred to in Article 89 (d) of the Constitution refer to the Supreme Court, Court of Appeal and the other Courts of First Instance, to the exclusion of Tribunals and Institutions or whether the words ‘any court’ includes a Court Martial.”

The Court of Appeal referred to Articles 24 (5), 105 and 13 (4), of the Constitution, and to Section 23 of the Judicature Act No.2 of 1978, as amended.

The Five Judge Supreme Court Bench consisted of Chief Justice Asoka de Silva, Justice Dr Shirani A Bandaranayake, Justice Nimal Gamini Amaratunga, Saleem Marsoof PC and Justice K Sripavan.

Three Court of Appeal Judges Justice Ranjith Silva, Justice A W A Salaam and Justice Upali Abeyratne delivered the Supreme Court order yesterday in open court.

The petitioner Gardihewa Sarath C Fonseka cited Secretary General of Parliament Dhammika Kithulegoda, Deputy Secretary General Dhammika Dassanayake, Elections Commissioner Dayananda Dissanayake, Returning Officer J Sylvester, Commissioner of Prisons Major General V R de Silva, Army Commander Lt Gen Jagath Jayasuriya, Lakshman Nipunarachchi of Piliyandala and the Attorney General as respondents.

The Judgement stated the only quarrel here is whether the Court Martial is ‘any court’ in terms of Article 89 of the Constitution.

The validity of the concept of Court Martial in itself and its power to determine cases and impose sentences of imprisonment and death not being contested and the only contest being its status in the hierarchy of institutions dispensing justice, Article 13 (4) of the Constitution brings it within the description of not only a ‘court’ by competent court since in terms of Article 13 (4), only competent court can impose sentences of death or imprisonment.

The Judgement also stated that accordingly, having regard to the manifest intention of Article 91 (a) read with 89(d) to safeguard the integrity of Parliament,the recognition of Courts Martial in Article 4(c) of the Constitution as well as in the direct reference to Court Martial in Article 142, the recognition of legislation inclusive of the Army Act and Courts Martial therein existing at the time of coming into force of the Constitution in terms of Article 16 (2) and 105 (2), 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.

“I hold that the Court Martial in terms of the Army Act is a ‘court’ in terms of Article 89(d) of the Constitution.

Here again one finds support for a contention that the Court Martial is recognised by the Constitution – in direct and unequivocal terms.

So, considering Article 4 (c) in relation with Articles 105 (2), 16, and 142 one is driven to the conclusion that the Court Martial is an entity exercising judicial power and recognised by the Constitution as such in terms of the second limb to Article 4 (c) the order added.

The 28 Judgement stated that there is no contest that the concept of the Court Martial is a reality and that it has the power to hear and try cases, act judicially, and impose valid sentences including imprisonment and death.

The Petitioner’s Counsel argued that ‘any court’ referred to in Article 89(d) does not included Courts Martial, as per Article 105 of the Constitution. Judicial power of the people is exercised through courts, tribunals and institutions created and established or recognised by the Constitution vide Article 4 (c) of the Constitution and as such not through Courts Martial that are convened by, consisting of and confirmed by the Executive.

Attorney General, Mohan Pieris PC submitted to court that the disqualification in Article 89(d) should be viewed from the context of its inclusion and not in a vacuum.

The vacancy of the Parliamentary seat occurs by operation of law in the event of the occurrence of a disqualification set out in Article 89(d).

On a moral basis, a person serving a term of imprisonment is disqualified from either being elected or continuing as a Member of Parliament. A sentence of death or imprisonment can be imposed only by a competent court and the Court Martial being empowered to impose such sentences in terms of Section 133 of the Army Act is therefore a competent Court in terms of Article 13 (94) of the Constitution, the AG submitted. Justice Saleem Marsoof, PC in a separate judgement stated that he agreed with the conclusion reached by the Chief Justice that the words ‘any court’ used in Article 89(d) of the Constitution include a Court Martial. He set out his reasons in a separate Judgment.

Attorney General Mohan Pieris PC with Deputy Solicitor General Sanjey Rajaratnam, Deputy Solicitor General S W F Jameel and Senior State Councel A N R Pulle appeared for the respondents.

President’s Councel Romesh de Silva with Saliya Peiris appeared for the petitioner Sarath Fonseka.

President’s Councel Shibly Aziz appeared with C Warnasuriya for the seventh respondent.

Source: Daily News – Pix by AP

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