Just how do you Court Martial a four star General?

By Ranga Jayasuriya

During his heydays in office, general Sarath Fonseka, the first ever four star General of the Sri Lankan military, vied to be a field marshal, a rank too big to be accommodated in a third world military.
Though he couldn’t realize his self confessed dream, his seniority in the military means that the court martial of the former general is set to trigger a legal conundrum.
Article 46 4 (4) of the Army Act, which sets out the procedure for court martial states that “The president of a general court martial shall be appointed by the authority convening such court martial, and shall not be that authority or an officer of a rank below that of field officer:
“Provided, however, that where such authority in his order convening such court martial certifies that a field officer is not available owing to the exigencies of the service, he may appoint an officer of a rank not below that of captain as the president of such court martial.”
Gen Fonseka, the only four star general in the army is by far the most senior in military ranks. This leaves the incumbent army commander, Lt General Jagath Jayasuriya to appoint an officer below the rank of general Fonseka.
The other option is to reenlist a retired Lt general and to promote him to the rank of general. Such a promotion would however likely raise eyebrows as promotion of Fonseka to the rank of general was an endorsement of his service to defeat the Tamil Tigers, a feat none of his predecessors could accomplish.
Earlier, it was reported that former army commanders, Lt generals Rohan Daluwatte and Shantha Kottegoda along with the incumbent Chief of Defence Staff Air Marshal Roshan Gunatillake would be appointed to the court martial panel.
Military spokesman Major general Prasad Samarasinghe rebuffing those reports, told the Lakbimanews that the commander of army, who has the prerogative of appointing the court martial has not yet done so.
Despite media statements by the government ministers of Fonseka’s alleged culpability in an attempted coup, harbouring military deserters and profiteering from a seedy defence deal, none of the charges for his detention has yet been communicated to Fonseka.
However, according to article 38 of the Army Act: “the person ordering any officer or soldier into military custody shall, within twenty-four hours of the committal of that officer or soldier to such custody, deliver to the person to whose custody that officer or soldier is committed a written and signed statement of the offence with which that officer or soldier is charged.”
However, the retired army chief is yet to be given a charge sheet.
Lt general Jayasuriya has appointed his senior most officer, Chief of Defence Staff Major general Daya Ratnayake to record the summary of evidence.
Gen Fonseka has refused to cooperate with the investigation on the grounds that he is a civilian and that he is no longer subjected to military law.
Under the regulations governing court martial, general Fonseka is entitled to cross examine the witnesses and present witnesses to give evidence on his behalf.
General Fonseka’s non-cooperation with the investigation would deny him this right, but needles to say that it would also erode the legitimacy of the trial which has increasingly come under the spotlight.
Last week, Liam Fox, the shadow defence minister and member of British Parliament called on the government that the retired general be tried in civil courts.
“The situation surrounding general Fonseka threatens to damage Sri Lanka’s reputation. At a crucial time of this country’s future it cannot afford to have the trial of a senior military officer portrayed, as an act of revenge,” he told the reporters in Colombo.
Last week, UNP pole-vaulter MP Jonston Fernando and UNP MP Lakshman Seneviratne gave statements to major general Ratnayake.
MP Seneviratne’s statement was in response to an earlier statement made by Jonston Fernando, in which the latter had alleged that general Fonseka maintained political contacts with Seneviratne while he was serving in the army.
In his response, Seneviratne, MP has stated that general Fonseka spoke to him about his political ambitions only after he retired from the army.
After the conclusion of summery of evidence, Army’s Judge Advocate major general Indira Wijeratne would decide whether the case against Fonseka should proceed.
The army says the arrest of General Fonseka was carried out under article 57 (1) of the Army Act.
The article 57 (1) states: “where a person subject to military law commits any offence and thereafter ceases to be a person subject to military law, he may be taken into and kept in military custody and be tried and punished for that offence by a court martial:
Provided that he shall not be so tried after the lapse of six months from the date of the commission of such offence unless such offence is the office mutiny, desertion, or fraudulent enlistment”
General Fonseka retired from the post of chief of defence staff on Novermber 14, last year. Accordingly, he should be tried by court martial on or before May 14, this year.
Meanwhile, an apparent witch-hunt of Fonseka loyalists continues: The Criminal Investigation Division is reportedly planning to arrest a former employee of Fonseka’s office who also functioned as Fonseka’s media coordinator. Even a local hotelier who provided food to the office of the common opposition candidate has not been spared and is fearing arrest by the CID.