by D.B.S. Jeyaraj
“It is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” – Lord Chief Justice Hewart in Rex vs Sussex Justices Ex parte Macarthy
The above mentioned observation by British Lord Chief Justice Hewart has become famous over the years as an aphorism espousing and emphasising the importance of appearance in meting out justice.It is not only important to ensure justice but equally necessary to demonstrate clearly that Justice appears to have been done.
“A Salute to the Nation” posters of the Common Opposition Presidential Candidate General Sarath Fonseka are posted in Mannar Island, North Western Province of Sri Lanka –Pic: humanityAshore flickr
When I began writing this article on Thursday February 25th my intention was to argue that retired four star General and defeated Presidential elections candidate Sarath Fonseka should not be court-martialled by a military tribunal.
It was in a sense an extension and further elaboration of what I had stressed in my previous column for “Daily Mirror” of February 12th 2010 headlined “Were the General and JVP involved in a coup conspiracy”?.
In that piece I wrote as follows-
“However far-fetched the possibility may seem the Government is well within its rights to investigate the matter thoroughly and discover the truth.
If there has really been a conspiracy involving Sarath Fonseka, serving army officers, ex-military personnel, deserters and sections of the JVP to stage a military coup and capture state power through gun barrels then those found guilty should certainly be meted out punitive justice.
But the Government should go the extra mile in ensuring that due process is followed in probing the alleged conspiracy. Already the ways and means adopted in the investigation have caused serious doubts whether due process is being followed.
More importantly if the Govt opines that the “conspiracy theory” is valid then it must charge all those allegedly involved in a civil court under the Penal code with open access to the media and public during trial proceedings.
Otherwise it would smack of a vendetta trial by a Kangaroo court.
The Govt must firmly adhere to the principles of natural justice. It must also remember that Justice should not only be done but also should appear to have been done.”
In that context my column this week was to be a continuation of my viewpoint that Sarath Fonseka should not be tried under military law and instead be given a fair trial in a civil court under the penal code.
While I was writing came the news about an announcement by Cabinet minister Prof. Gamini Lakshman Peiris at a media briefing.
Prof.Peiris who is perhaps the foremost authority on matters legal in the Rajapaksa government said that Retired Gen.Sarath Fonseka will be charged within the next two weeks for offences committed under the Penal Code and the Foreign Exchange Control Act in addition to facing charges under the Army Act.
G.L. Peiris told the news conference that General Fonseka would also be charged in connection with deals entered into with the commercial firm ‘Hicorp’.
He further said the government was also preparing to file sedition charges against General Fonseka whose actions had allegedly caused unrest among the rank and file in the military and for harbouring army deserters.
The account appearing in the “Daily Mirror”web edition on which I have relied states clearly that Sarath Fonseka apart from being charged under the Penal code and Foreign exchange control act will also be facing charges in due course under the Army act too.
Some other news reports however have displayd some ambiguity in this respect and create an impression that Fonseka will only be charged in a civil court and not in a military tribunal as envisaged earlier.
If this were true then it would mean a remarkable change in the Government’s position towards Sarath Fonseka.
Military and Civil
It was only two weeks ago that Defence secretary and Presidential sibling Gotabaya Rajapaksa told Ravi Velloor of Singapore-based “Straits Times” that the Government was looking at both a military and civil trial for the retired General.
Against that backdrop it does appear that the Govt intends to proceed along both fronts and that Fonseka will have to face military and civil court proceedings.
If on the other hand the Govt has indeed jettisoned its earlier intention of trying Fonseka under military law then there is no necessity for this column to argue a case against a military trial for Sarath Fonseka.
That prospect seems unlikely at this juncture and the Prof. Peiris press conference seems to be an attempt to deflect some of the criticism away on this count by announcing with fanfare a trial against Fonseka under the penal code and exchange control laws.
Even though General Fonseka has refused to co-operate with the authorities in the military tribunal proceedings against him the Government seems determined to proceed on course and subject him to military justice in addition to civil court action.
I do hope there is a change of mind in this but until then I shall continue to call upon the Rajapaksa regime to abandon its project of court-martialling Fonseka and proceed only with a civil courts case or cases if deemed necessary.
Let me state at the outset that my objection to a military trial for Fonseka is not in terms of law or facts. Many of those in the Fonseka camp have argued that the retired Geneal cannot be tried under military law because he is now a civilian.
Fonseka himself takes up that position strongly.He resisted arrest by the military Police on that count and volunteered to surrender himself to the Police. This was refused and Fonseka was taken away in a very humiliating manner.
Fonseka is being detained within the Naval headquarters complex. The Army commander Lt.Gen Jagath Jayasuriya has instructed his chief of staff ,Maj-Gen Daya Ratnayake to hold an inquiry and compile a summary of evidence into allegations against the erstwhile army commander.
Fonseka was asked to be present at the inquiry.This would have given him an opportunity to cross-examine or question witnesses and present his own standpoint to the inquiring authority.But Fonseka took up the position that the Army had no right to subject him to military proceedings as he was now a civilian.
Ratnayake therefore is going ahead with his task and is recording testimony from military and civilian persons.In a bid to keep Fonseka informed inquiry proceedings are relayed via a loudspeaker in his chalet though he himself is not physically present.
But again the defiant four-star General refuses to listen and has been seen plugging his thumbs into his ears in a demonstrative gesture signalling his refusal to listen. He has also reportedly kicked and damaged the amplifier.
Fonseka’s conduct is perectly logical given his basic stance that he is now a civilian exempt from military law. The ex-army chief contends that he relinquished army office in mid-July 2009 and henceforth acquired civilian status.
Acting perhaps on sound legal advice the General takes great pains to exhibit his unambiguous dismissal of the preliminary military proceedings currently underway.
He adamantly refuses to play any part-active or passive-in military-oriented legal proceedings and steadfastly demand a civil trial . His non-compliance with the summary of evidence exercise is therefore logical.
The Govt on the other hand insists that Fonseka is indeed subject to military law and cites related legal provisions. Basically the Govt holds that Fonseka retired only in Mid-November 2009 and that he remains bound by military law until mid-May 2010. Apparently a retired officer is subject to military law up to six months after retirement.
These legal issues are likely to be thrashed out in open court when the next hearing of Fonseka’s fundamental rights petition is held by the Supreme court on April 26th. But when the preliminary hearing took place on February 23rd the courts declined to provide immediate relief by suspending his arrest and detention or order his release.
Apart from the question of law Fonseka and his supporters have also disputed the facts as presented by the Govt. It must be noted that there are no formal charges so far either in a military tribunal or civil court.
However the Provost Marshall Brigadier Jagath Wijesiri read out some charges against Fonseka when the military police went to arrest him. But those were charges into which Fonseka was to be questioned in order to gather further evidence.Unless adequate evidence is garnered those charges would not amount to an indictment.
There have also been reports in the media about offences allegedly committed by Sarath Fonseka. Statements to this effect too have been made by some officials particularly the President and his brother the defence secretary.
It appears that the investigations are about Fonseka’s alleged involvement or complicity in a coup conspiracy,assassination plot, disaffection among military ranks, engaging in politics while in uniform, Sedition,killings ,fraudulence in military purchases,and exchange control violations etc.
From Gotabaya Rajapaksa’s media interviews and the press conference of Prof. Peiris it is possible to infer that Fonseka will be charged in a civil court for certain offences and in a military tribunal for others. In military parlance the General will undergo double envelopement.
There is no doubt that Fonseka and supporters will contest the govt in this respect by challenging the legality and substantive basis of charges. It will be up to the courts to decide on these questions and act accordingly.
There are also reasonable doubts as to whether due process will be adopted if and when Fonseka is charged under military law.
Some defenders of the military proceeding option have gone to town asserting that military justice is not second to civil justice and that Fonseka will get a free and fair trial even if court-martialled.They also point out that legal remedies such as resort to appeal court are available.
Despite the enthusiastic endorsement of military justice by some there is a widespread school of thought which opines that due process will be enacted only if Fonseka faces trial in a civil court.
From US Asst secretary of state for South Asia Robert Blake to British shadow foreign minister Liam Fox world opinion at large has called for civil court proceedings.
It is in such a scenario that this columnist re-iterates his viewpoint that there should be no military trial for Sarath Fonseka.Let me outline my reasons.
As stated earlier my objection is not in terms of law or fact. It may be that the govt is absolutely justified by law to try Fonseka before a military tribunal. It may also be that the Govt has incontrovertible proof of Fonseka’s “guilt” in the offences alleged against him.
But my objection is not in terms of law or fact but on perception. As in politics perception at times counts far more than reality. Justice Hewart’s pithy comment sums this up well.
It is very necessary for the enactment of justice that the appearance of it being enacted is maintained.Justice should not only be done but be seen as being done.
This aphorism is arguably the crux of the concept of open justice.Related to the concept of open justice is the observation made by Lord Bowen that….”Judges, like Caesar’s wife, should be above suspicion”. The open justice principle is also enhanced by Lord Atkin’s comment “Justice is not a cloistered virtue.”
The principle of Open Justice was defined succinctly in a public address by JJ Spiegelman,Chief justice of New South Wales in Australia. Spiegelman said-
“The principle that justice must be seen to be done-to which I will refer as the principle of open justice-is one of the most pervasive axioms of the administration of justice in our legal system. It informs and energises the most fundamental aspects of our procedure and is the origin, in whole or in part, of numerous substantive rules. It operates subject only to the overriding obligation of a court to deliver justice according to law.
Australian public debate has a tendency to ignore such fundamental principles, in the same way as we fail to appreciate the skill embedded in the engineering infrastructure which ensures that if you flick a switch, the lights go on or, if you turn a tap, water pours out. No-one thinks about it. We take it for granted”.
A crucial element in the principle of open justice is justice being seen to be done or appearing to have been done. To whom should this apply? To whom should justice appear to be done? Who should see justice as being done?
Spiegelman answers thus-
“I use the word “justice” to mean fair outcomes arrived at by fair procedures. To whom must justice, in this sense, appear to be done? The observer is not a party, not even the accused in a criminal trial.13
The relevant observer is always the “fair minded observer”, acting “reasonably”.
Acceptance by such an observer, should also demand acceptance by a fair minded party”
Now in the case of General Sarath Fonseka how would a fair-minded, reasonable observer view what is going on and the attempts to charge him in a military tribunal?
Before answering that let me draw attention to the well-established and accepted principles of natural justice. The principle of open justice and the twin principles of natural justice are related and inter-twined in most instances. They complement and re-inforce each other.
The two fundamental principles of natural justice are “Nobody shall be a judge in his own cause” (nemo judex in causa sua) and “hear the other side” (audi alteram partem)
In essence these principles seek to ensure that there should be no bias or conflict of interest or duties in judgement and that a fair opportunity be given to a person facing trial to present one’s own case.
Basically the principles of natural justice evolved under common law as a check and counter to the arbitrary exercise of state power. The natural justice principles are adhered to not only in judicial matters but also in executive and administrative affairs.
In the instance of Sarath Fonseka being tried by a military tribunal one has to take note of the circumstances and apply the principles of open justice and natural justice. Though the actual trial or court-martial has not occurred the preliminary proceedings have begun.
It is learnt that President Rajapakse sought an opinion from the Attorney-General on whether available evidence indicates a prima facie case for arresting and detaining Fonseka. Receiving an affirmative response the commander in chief of the Armed forces instructed his army commander to go ahead.
It was under the orders of Army chief Lt. Gen Jayasiriya that Major-General Sumit Manawadu and Brigadier Jagath Wijesiri seized Sarath Fonseka on February 8th.
Now the chief of staff Maj-Gen Daya Ratnayake is conducting an inquiry where a summary of evidence against Fonseka relating to alleged offences under Army law is being compiled.
When Ratnayake submits a report Jayasuriya will decide upon court-martial proceedings.It is possible that the commander would consult both the Army’s Judge Advocate-General as well as the Attorney-General on this before action.
Given the recent sequence of events it is very likely that a military tribunal would try Sarath Fonseka in the near future. It would indeed be an “agni pareeksha” or trial by fire.
The proponents of military justice for Sarath Fonseka have reacted sharply to criticism of a military trial by passionately articulating the virtues of military justice. Some would have us believe that military justice is the best in the world and that there is no finer judicial exercise than a military court-martial.
This columnist has no opinion on those arguments. I am not questioning the military justice procedures. I am also not casting aspersions about the military officers involved in the exercise.
I am prepared to accept for argument’s sake that all military officials involved in the Fonseka affair would act fairly and squarely without the slightest animus or prejudice towards Fonseka. They may all be officers and Gentlemen acting without rancour or malice towards Fonseka and are discharging their duties with detachment keeping only the best interests of the Army and Country at heart.
What is at stake here is how such a military trial would be perceived under current realities and circumstances. What would be the perception of the “reasonable,fair-minded observer”? would such an observer opine that justice is being or has been done in terms of the principles of open and natural justice?
As stated before the military may be acting very honourably and dispassionately in this but do recent events project such an impression to the average person?Will the “reasonable, fair-minded” person be convinced that justice is being done to Fonseka?
According to the letter of the law Sarath Fonseka may still be bound by Army law but in actual terms the former Army commander has acquired civilian status. Furthermore he is now a political personality. Fonseka is the culmination and expression of a long process where the military has been irredeemably politicised.
With Fonseka throwing in his beret into the presidential elections ring the climate was transformed. Fonseka’s abrasive style of campaigning compounded the situation further. While many ex-army officers as well as serving military personnel were supportive of Fonseka several high-ranking officers got alienated from their former chief.
The Army as an institution particularly the official hierarchy was at loggerheads with the General. This became public knowledge through a two-way process. Fonseka on the one hand criticised the commander in chief, defence secretary, army commander,national security adviser, chief of defence staff and several high-ranking army officers.He even threatened court-martial action against many.
On the other hand the defence secretary Gotabaya Rajapaksa , army commander Jagath Jayasuriya and several top generals including majors –general Shavendra Silva, Prasanna Silva, Kamal Gunaratne, Prasad Samarasinghe, Kapila Hendavitharana and Udaya Nanayakkara spoke out against the General implicitly and explicitly in the media.
These bitter exchanges proved beyond doubt to the people at large that the military was now highly politicised. The rapid course of post –presidential poll events confirmed that opinion further. The Hotel in which Fonseka was staying at was surrounded by a military contingent; several ex-army officers involved in the General’s election campaign were arrested. Some high-ranking army officers suspected of being Fonseka loyalists were sent on compulsory retirement. A few were arrested .The climx was Fonseka’s arrest where the General was forcibly removed from his office by army personnel.
Thus it is now common knowledge that the Army as an institution is hostile to the former army commander. Individual officers may be sympathetic but officially the Army is seen as being estranged from the General. It is against this backdrop that legal action under Army law is being contemplated.
The military top brass may be acting honourably but will the “fair-minded, reasonable” observer or for that matter the proverbial man in the street opine that Fonseka will get justice in a military tribunal?
Let us look at Fonseka the man in the military dock. How does the military as an institution relate to him now?
Fonseka took on the supreme commander of the armed forces at the presidential stakes and conducted an acrimonious campaign against him and family members.He threatened to jail him if elected to office.
Now the tables have turned and Mahinda Rajapaksa holds the reins of power. It may be that the President is truly a great soul and is acting without any ill-will towards Fonseka but will the ordinary masses be convinced of that ?
Likewise Fonseka has been having a well-publicised running battle with Gotabaya and threatened him too with dire consequences. Now Fonseka lies in the dust as a defeated foe and the Defence secretary rides high. He is the most powerful man in the defence establishment. Though I am not saying he is doing so , the fact remains that Gotabaya can get the military top brass to do what he desires through coercion or coaxing.
In media interviews the defence secretary emphasises that action is being taken against Fonseka due to the ex-army chief’s acts of omission and commission and not because of a vendetta campaign. Gotabaya may be 100% truthful in saying this but the acid test is whether the world at large will perceive it so.
Then comes the Army. Let’s look at the military. It was the Army commander Jagath Jayasuriya who ordered that Fonseka be arrested.He did so after getting the green light from the president who reportedly obtained advice to that effect from the Attorney-General. On one level there is absolutely no problem in all this. Everyone is doing their duty keeping the best interests of the country and army.
But on another level there is a problem. Fonseka displayed great hostility towards Jayasuriya while in service and even got his aide de camp arrested. He was apparently gunning for Jayasuriya himself. After Jayasuriya became army chief Fonseka complained bitterly against him to the President. He also ridiculed him publicly as a “holding” officer unfot to lead the Army. Jayasuriya was compelled to defend himself publicly.
Now about his arrest. Who were the senior officers who arrested him? Military Police head or Provost Marshall Brig. Jagath Wijesiri and Colombo district operations commander Maj-Gen Sumith Manawadu. Both were following orders. But again there is a personal element here.
Brig. Wijesiri held the post of Provost Marshall a few years ago. There was an incident where an army vehicle driven by an officer met with an accident. In the vehicle was an attractive woman army deserter. Wijesiri then a Colonel did his duty by investigating the incident. He discovered that the vehicle was being driven to a particular location for a rendezvous with a top army officer.
The Army commander of the day Sarath Fonseka took keen interest in the matter and tried to suppress the investigation.Wijesiri was transferred out to Trincomalee as a transit camp commandant. A Fonseka loyalist Brig. Bimal Dias was made provost marshall. The course of internal military justice was perverted.
Furthermore Wijesiri was treated unfairly for doing his duty.His promotion was withheld and was about to be compulsorily retired. An inquiry was held into an incident where Wijesiri was accused of transporting a cow illegally in an army vehicle.Wijesiri petitioned the Supreme Court seeking justice.
He clarified the “cow” incident to the satisfaction of the Supreme court. Courts restored his withheld promotion and subsequently Wijesirii became a brigadier.He was made Provost marshall again only some weeks ago.
In the case of Maj- Gen Sumith Manawadu he served as planning director at the Army headquarters under Sarath Fonseka. At that time he was a Fonseka favourite and appointed as general officer commanding of 57 division. But there was some friction with Fonseka and soon Manawadu was transferred from “Command” stream to “Common” stream.
Within army circles this was akin to a demotion . Manawadu was restricted to inconsequential administrative functions.
After Fonseka quit the army Manawadu was restored to former glory as operations commander ,Colombo and promoted as major-general.It was Manawadu who supervised the military action of surrounding Hotel Lakeside-Cinnamon where Fonseka was holed up with his associates.
Later both Fonseka’s daughter and wife were to charge that Manwadu had been penalised by the General for lapses on the battlefield and was now seeking revenge. Manawadu was subsequently involved in the controversial arrest of Sarath Fonseka.
Last but not least is the chief of staff Major-General Daya Ratnayaka. He was tasked by the Army commander to question Fonseka and procure a summary of evidence into charges against him. But Fonseka has refused to cooperate. Interestingly there is a history of friction between Fonseka and Ratnayaka too.
Sarath Fonseka was injured seriously in April 2005 when a woman suicide bomber exploded herself within army headquarters premises. The doughty general fought for his life on the hospital bed and miraculously survived. It was when Fonseka was in hospital that the Maavil Aaru battle took place. After protracted fighting the Liberation Tigers of Tamil Eelam(LTTE) retreated. The entire area came under Army control.
Daya Ratnayaka was responsible for publishing a special volume to mark the Maavil aaru victory. Since Nanda Mallawaratchy was the acting army commander in Fonseka’s absence and played a part in the Maavil Aaru war he was given due recognition in the special volume.
Fonseka upon resuming charge as commander was livid with fury at Ratnayake for acknowledging Mallawaratchi’s role. He was harssed and due promotions were withheld. At one stage Ratnayake wanted to quit the army but held on because of personal intervention by Gotabaya Rajapaksa.
Today Fonseka has fallen from grace while Ratnayaka has got his well-deserved elevation. Fate has decreed Rtnayake being in charge of the Fonseka inquiry.
It is interesting in a way that the four top army officers involved in the arrest,detention and inquiry of Fonseka have a “hostile history” with him.This does not necessarily mean that they have deep-seated animosity towards him and would abuse or misuse their powers to deny fairplay and justice to Fonseka.
But against this backdrop it would be rather difficult for any “fair-minded,reasonable” observer to conclude that Fonseka is receiving justice. As for the average onlooker there will be very little doubt in his or her perception that Fonseka is being fixed by the government and army hierarchy.
A harsh truth is that Fonseka through his cantankerous personality and abrasive attitude has earned many , many enemies among the Army top brass. This extends to even retired superiors and contemporaries.
His ill-advised election pronouncements have stirred up great resentment among many army officers. Thus the army top brass is perceived as being hostile to Fonseka institutionally as well as on an individual basis.
This phenomenon has to be viewed in conjunction with the “witch-hunt” against suspected sympathisers and cronies of Fonseka in the upper echelons of the army.
It is obvious that army officers seen as pro- Fonseka run the risk of being victimised and penalised. The reverse side to this is that those seen as anti-Fonseka could receive career-boosting rewards.
In this atmosphere where ill- will towards Fonseka runs deep within the army establishment there will be misgivings and doubts in the people’s perception that he would indeed receive proper military justice. The dice seems loaded , the playing field is not level and the cardpack seems stacked against him.
Even if the military trial is conducted with absolute impartiality any adverse decision is very likely to be viewed as being prejudiced. Even if all the evidence necessitates such a decision the perception of people would be different.The army trying Fonseka under present circumstances will be seen as biased against the ex-army chief.
There is also the non-cooperative attitude of Fonseka towards military procedures. He refuses to comply with procedures and has not availed of the legal avenues to put his case across.
His side of the story is not heard and the legal procedures so far amount to unilateral proceedings. While it is correct that Fonseka was given an opportunity to voice his case the fact remains that his voice is voluntarily silent. Thus the adage that both sides should be heard is followed in the breach here.
In such a situation a trial under military law would not be seen as justice being done. It would not appear as justice to the “fair-minded, reasonable” observer.The principles of open justice and natural justice are being violated here.
Ironically the best way in which people would believe that military justice was fair would be for Fonseka to be absolved of all guilt and cleared of all charges.Only then will people be convinced that justice has been done. This however is an extremely remote possibility.
This does not mean that no legal action should be taken against Fonseka.It only means that due process should be followed and justice should be seen as being done. For this Fonseka must be charged in a civil court under normal laws.
The question may arise as to whether Fonseka would receive a fair trial in civil courts. Despite some flaws in the judicial system out judiciary has by and large demonstrated a vibrant independence. The Sarath Silva phase is now over and the judiciary is proving its mettle in many instances.
A significant development in recent times has been the sturdy independence displayed by some of our lower courts. The disgraceful , partisan attitude of the Police has been frequently checked and balanced by some of our magistrates and judges.
Disgusting Police attempts to ban political meetings and marches, efforts to muzzle the media etc have been foiled on many occasions by courts. In recent times many ex- army personnel associated with Fonseka who were arbitrarily arrested by the Police have been discharged by courts.
Therefore the chances are far greater for Fonseka to receive justice if he is charged in an open , civil court. More importantly the perception that justice indeed is being done would be enhanced and strengthened.
Since the Govt has been taking the high ground that it has no personal animus towards Fonseka it can easily dispense with the military justice option. Doing so would restore much of its eroded credibility on this issue.
What the government has failed to realise is that Fonseka is no longer an army officer in public perception. Technically he may be bound by military law still but the reality is that Fonseka has now metamorphosed into a civilian political leader. Rightly or wrongly 4. 18 million people voted for him. The Government must respect those voters who are equal citizens of Sri Lanka.
I am not saying he should be simply released but if there is indeed a “case” against him then it should be conducted in open court with public and media access. He should be treated as a civilian leader who won the confidence and trust of nearly 40% of the voters within four months. The applicability of military law does not matter here.
The persistent efforts of the Govt to try him under military law or both civil and military law evokes suspicion that it is indeed a vendetta against the General. Kafkaesque shades are visible in the seeming desire to fix Fonseka under both systems of law. There is suspicion that the verdict seems to have been issued and the trial will only be a façade to arrive at a foregone conclusion. This is veritably Kafkaesque!
President Rajapaksa would surely know that many people voted for him because they were disgusted at Fonseka issuing threats against the Rajapaksa brothers saying he would punish them when he won the presidency. This aroused negative sentiments as our people are not in favour of political opponents being victimised. Now the roles are reversed.
A vast majority of our people are not in favour of Fonseka being victimised in revenge. This includes many who voted for Mahinda too. The least that the President could do is to make people feel that justice is being done and vengeance is not being wrought against the General.
Mahinda Rajapaksa is the undisputed victor in the electoral duel with Fonseka. It is imperative therefore that he dispels all suspicion that “victor’s justice” is being meted out.
Above all the Government must recognize the crucial difference between legality and legitimacy. Whatever the government does to Fonseka may be “legal” but would it be seen as “legitimate”?
DBS Jeyaraj can be reached at firstname.lastname@example.org