“Court-Martial” any where even in a cave or under a tree, how can be considered as courts through Parliament exercises the judicial power of the People? asked former chief justice Sarath N Silva.
The Supreme Court being vested in terms of Article 125 of the Constitution, the sole and exclusive jurisdiction to interpret the Constitution, has upon a reference made to that Court, by the Court of Appeal, determined that “the Court Martial in terms of The Army Act is a ‘Court’ in terms of Article 89(d) of the Constitution”.
Article 89 specifies the matters that would disqualify a person from voting at any Election namely, the exercise of the franchise which forms part of the sovereignty of the People in terms of Article 3, being the basic Article of the Constitution. Therefore the determination has wider constitutional implications which transcend the immediate concerns of the parties to the case. This analysis is being done in the public interest in view of the wider Constitutional implications, with due respect to the Court and their Lordships who were members of the Divisional Bench.
Article 89(d) lays down that a person is disqualified from exercising the franchise if he is serving or has during the period of 7 years immediately preceding served a sentence of imprisonment of not less, than 6 months “imposed after conviction by any court” for an offence punishable by a term of not less than 2 years imprisonment. A person thus disqualified from being a voter is in terms of Article 91(1) (a) disqualified from being elected as a Member of Parliament and from sitting and voting in Parliament. In terms of Article 66, thereupon the seat of such M.P. shall become vacant. Thus a string of consequences follow upon a sentence “imposed after conviction by any court” as provided in Article 89(d).
A similar disqualification was contained in Sector 68(c) of the previous Constitution of 1972. The words contained in Article 89(d) of the present Constitution are similar to the words in section 68(c) of the previous Constitution except for a very significant addition. In that the words “imposed after conviction by any court” have been added in the present Constitution. Thus when the two provisions are contrasted it would be seen that under the 1972 Constitution the fact that a person is serving or has served a sentence of imprisonment of 6 months or longer for an offence punishable with a term of 2 years or longer would be adequate to set the disqualification in motion. Whereas, under the present Constitution the fact of serving the term of imprisonment by itself would not suffice. An additional requirement has to be satisfied to bring about the disqualification, namely it was “imposed after conviction by any court”. It has to be noted with due respect, that the content of the two provisions and the fact that an added requirement was included in the present Constitution was not considered by the Supreme Court in making the determination.
The term “court” has not been interpreted in the Constitution and the meaning to be ascribed to it has to be gathered from a reading of other relevant provisions. The first Article in the ‘Constitution’ in which the term “court” features, is Article 4 being an entrenched provision dealing with the separation of powers. Article 4 (c) states that,
“The judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized by the Constitution, or created and established by law….”
Thus a court is an entity which exercises the judicial power of the People and is distinct, from tribunals and other institutions that may also exercise judicial power.
The Constitution which as noted above, is based on a separation of powers, elaborates on the exercise of Executive, Legislative and Judicial, powers in distinct Chapters. Chapter XV deals with the exercise of judicial power and is appropriately titled “The Judiciary”. The first provision of this Chapter namely Article 105 (1) states as follows.
“Subject to the provisions of the Constitution the institutions for the administration of justice which protect, vindicate and enforce the rights of the People shall be
(a) The Supreme Court of The Republic of Sri Lanka
(b) The Court of Appeal of The Republic of Sri Lanka
(c) The High Court of the Republic of Sri Lanka and such other Courts of First Instance, tribunals or such institutions as Parliament may from time to time ordain and establish.”
Within a short time of the Constitution being enacted the Parliament as the repository of judicial power enacted the Judicature Act No 2 of 1978 which according to its preamble is;
“An act to provide for The establishment and constitution of a system of Courts of First Instance in Terms of Article 105(1) of the Constitution….”
Chapter 1 of The Judicature Act is appropriately titled “Courts and their Territorial Limits”. The first section in this Chapter namely Section 2 states that,
“the Courts of First Instance for the administration of justice in the Republic of Sri Lanka shall be
(a) the High Courts of the Republic of Sri Lanka;
(b) the District Courts;
(c) the Family Courts;
(d) the Magistrate Courts;
(e) the Primary Courts
Section 3 states that for the purpose of the administration of justice, Sri Lanka shall be divided into judicial zones, judicial districts and judicial divisions. High Courts are established for zones, District Courts and Family Courts for districts and Magistrates Courts and Primary Courts are established for divisions. The 13th Amendment to the Constitution established a High Court for each Province. The remaining provisions of the Judicature Act lay down the substantive jurisdiction for each description of Court to be exercised within the respective territorial limits.
Thus Parliament in which the judicial power of The People is reposed in terms of the basic Article 4(c) exercises such power through the Superior courts namely the Supreme Court and the Court of Appeal, established in terms of chapters XV and XVI of the Constitution and the Courts of First Instance established by Parliament in terms of Article 105(1) by enacting the Judicature Act, as stated above.
It has to be noted with due respect that the matters stated above have not been taken into account by the Supreme Court in making the determination.
If the matters stated above are taken into account, although the term “court” in Article 89(d), being in provision to be interpreted, is not defined in the Constitution, the meaning to be ascribed to it can be gathered from Article 4(c), Article 105(1) and the Judicature Act enacted in terms of that Article. Accordingly the term ‘Court’ would include only, the Supreme Court, the Court of Appeal, The High Court, The District Court, Family Court, Magistrate Court, the Primary Court and any other Court recognized by the Constitution or created and established by law through which Parliament exercises the judicial power of the People.
His Lordship the Chief justice in his judgment (at page 27) sums up his finding as follows.
“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 recognized by the Constitution as such in terms of the second limb to Article 4 (c)”. It has to be noted that Article 4 (c) consists of a single sentence and the second part of it deals with privileges of Parliament and is not relevant to the issue at hand. The first part of the sentence has been reproduced above which makes no reference to a court martial convened under the Army Act.
Be that as it may, His Lordship concludes that the court martial is an “entity” exercising judicial power and recognized by Article 4 (c). The Article refers to 3 types of “entities” namely “courts”, “tribunals” and “institutions”. His Lordship does not specify whether a court martial convened under the Army Act is recognized by Article 4 (c) as ‘court’ or a “tribunal” or an “institution” exercising the judicial power of the people. Such a finding is essential in relation to Article 4 (c) since the provision in issue namely Article 89(d) refers only to a ‘court’.
The Chief Justice has cited three Articles of the Constitution on the strength of which he has drawn the inference that the court martial under the Army Act is an “entity” exercising judicial. They are Articles 105 (2), 16 and 142.
Article 105 (2) is in the nature of a transitional provision which is necessary in view of Article 4(c) vesting judicial power in Parliament to be exercised through courts, tribunals and institutions as stated before. Therefore to ensure continuity of existing courts tribunals and institutions other than the Supreme Court (which is established by the Constitution), Article 105(2) deems them to be created and established by Parliament. There is no reference to the Court of Appeal since it was not an existing court. However, there is a significant qualification made in Article 105(2). Courts, tribunals and institutions that are deemed to have been created and established by Parliament are only those established by written law “for the administration of justice and for the settlement of industrial and other disputes.” Therefore it is necessary to consider as a preliminary issue whether a court martial convened in terms of the Army Act, was a Court established for the administration of justice and it exercised the judicial power of the state. This issue had been considered on two occasions previously by the Supreme Court. Firstly, in 1915 by a full Bench of the Supreme Court in the judgment reported in 18 NLR334 and later in 1966 in the judgment reported in 69 NLR 193. Although the circumstances in the two cases were different the substantial issue was whether a court martial was engaged in the administration of justice and exercised judicial power. In both cases the Attorney General objected to grant of relief on the basis that a court martial did not exercise judicial power. The Supreme Court upheld this objection of the A.G. In the first case Justice de Sampayo held that a court martial is not convened “for the ordinary administration of Justice” and that it exercised an extraordinary jurisdiction under circumstances of paramount necessity of State”. In the latter case H. N. G. Fernando who later served as Chief Justice for many years upon a survey of the status of courts martial in other jurisdictions as well, held that;
“The opinions expressed in the American and Australian Courts that the traditional powers of Courts Martial are independent of the ‘Judicial Power of the State’ referred to in their Constitutions, can properly be followed in Ceylon with the adaptation Courts Martial in Ceylon were traditionally distinct from the judicature of Ceylon”
In the determination the Chief Justice has not sought to depart from the reasoning of H.N. G. Fernando. On the basis of the dicta in the two judgements, a court martial cannot be considered as being a court established by existing written law for the administration of justice and as such the provisions of Article 105(2) would not apply in respect of a court martial.
In the latter case the argument of the Petitioner was that since a court martial exercised judicial power its members should be judicial officers appointed by the Judicial Service Commission as required by Article 55 of the 1946 Constitution which was then operative. The Supreme Court rejected this submission. Under the present Constitution too, a judicial officer has to be appointed by the Judicial Service Commission. In addition, Article 170 has a new provision, the like of which was not there in the preceding two Constitutions. It states that whether a person is a “judicial officer” or not has to be decided exclusively by the Judicial Service Commission. The Commission of which the Chief Justice is the incumbent Chairman, has not at any stage since 1978 decided that a member of a court martial is a “judicial officer”. Therefore a serious issue arises pursuant to determination, as to whether there could be a Court in terms of the Constitution without a judicial officer. With due respect it is noted that this aspect has not been considered by the Supreme Court.
Article 16 (1) cited by the Chief Justice makes no reference to a court martial. The Article is in the Chapter dealing with Fundamental Rights and states that existing law shall be valid notwithstanding any inconsistency with the provisions of that Chapter. Hence it has to be noted with due respect that this provision can not in any way extend the operation of Article 4(c) to a court martial.
In this regard it has to be noted with due respect that the Army Act which was in operation at the time the Constitution was enacted continues in force in terms of Article 168 (1) of the Constitution. However it is significant to note that Article 168(2) states that existing laws which continue in force “are not and shall not in any manner deemed to be provisions of the Constitution”. Therefore the provisions of the Army Act dealing with courts martial cannot be a juxtaposed with provisions dealing with Courts in the Constitution in the absence of any specific provision to that effect in the Constitution.
Article 142(1) cited by the Chief Justice relates to the powers of the Court of Appeal in exercising jurisdiction to issue writs of habeas corpus. The Court is empowered to direct that a person in detention presumably under the Army Act be brought up for trial before a court martial. This provision does not have the effect of extending the application of Article 4(c) to courts martial.
Hence, it has to be noted that with due respect that none of the Articles referred to by the Chief Justice support in any way the inference that “the court martial is an entity exercising judicial power and recognized as such in terms of the second limb to Article 4(c)”.
The Chief Justice has accepted the submission of the Attorney General that Article 13(4) of the Constitution recognizes a Court Martial as a competent court. This Article is included in the Chapter on Fundamental Rights. It provides as a fundamental right that “no person shall be punished with death or imprisonment except by order of a competent court”. The argument is that since a court martial is empowered to impose a sentence of death or imprisonment, it is by implication recognized as a competent Court. With due respect it has to be noted, that the exercise of the fundamental rights guaranteed by Article 13 are restricted by Article 15(8) in relation to members of the Armed Forces. The restrictions may be prescribed by law (Army Act) in respect of members of the Army “in the interest of the proper discharge of their duties and the maintenance of discipline among them”. A reading of the Army Act reveals that a court martial is convened for these purposes. Therefore in terms of Article 15(8) a court martial is an exception to Article 13(4) which guarantees to every person that a sentence of imprisonment or death shall be imposed only by a competent court. With due respect, it has to be noted that the Supreme Court has not taken into account the provisions of Article 15(8).
The Supreme Court has accepted an argument based on morality advanced by the Attorney General that unless the disqualification contained in Article 89(d) is extended to a sentence imposed by a court martial, there would be persons sentenced to death and imprisonment by courts martial sitting and voting in Parliament. The Chief Justice has observed that the determination is made “to safeguard the integrity of Parliament”. Indeed a laudable objective which does not carry weight as a legal argument. Can it be said that Sarath Fonseka was an honourable person prior to the sentence imposed by a court martial and became dishonourable thereafter. He would once again become honourable if a pardon is given by the President. The argument does not take into account the fact that in terms of Article 89(d) the disqualification initially applies to a voter. Can it be said that the disqualification is introduced to ensure that only honourable people vote. It is far more appropriate to consider that the disqualification is plainly an additional sanction which follows a sentence imposed upon a conviction by a court exercising regular jurisdiction complying with all the safeguards to ensure a fair trial.
The Chief Justice in his final finding states as follows; “I hold that the court martial in terms of the Army Act is a ‘court’ in terms of Article 89(d) of the Constitution”. The finding assumes that there is a single continuing entity being ‘the court martial’. However, under the Army Act there is no such single entity called ‘the court martial’ but there are different types of courts martial any of which may be convened by the appropriate authority to try a particular matter. The different types are;
(a) A general court martial which may be convened by the President or an officer not below the rank of a field officer authorised by the President.
(b) A field general court martial which may be convened in terms of Section 48(1) of the Army Act when only a part of the army is on active service whether in Sri Lanka or in any other country, by the commanding officer of that part. Hence it could convene any where even in a cave or under a tree.
In terms of section 49 such a court martial also can impose a sentence of death or imprisonment
(c) A district court martial which may be convened in terms of section 50(1) by any person empowered to do so by an officer not below the rank of Captain. In terms of section 51(1) such a court martial may impose any punishment other than death.
A question arises as to whether all these “entities” are covered by the determination which refers to “the court martial in terms of the Army Act”. Can they be considered as courts through which Parliament exercises the judicial power of the People?
In conclusion I wish to state that this analysis is done in the public interest since the interpretation of the Constitution being the Supreme Law of the land is of general importance and that no disrespect is intended to the Court or Their Lordships.
By Sarath N Siva - Former CJ
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