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The Supreme Court ruling that a Court Martial is a court in terms of Article 89 (d) of the Constitution has troubling implications for constitutional governance in Sri Lanka. The Court’s ruling was upon a reference to it by the Court of Appeal, which is hearing a writ application filed by Sarath Fonseka challenging several decisions that resulted in his seat as Member of Parliament being declared vacant. One of the arguments urged by him in the Court of Appeal was that a Court Martial (established under the Army Act) was not a ’court’ in terms of Article 89(d), and therefore, the disqualification of persons serving a sentence of imprisonment of more than six months upon conviction by ’any court’ was inapplicable to him. The Court of Appeal then referred the question of ’whether a Court Martial is a court’ to the Supreme Court for interpretation in terms of Article 125 of the Constitution.
The five-judge bench of the Supreme Court decided unanimously that Courts Martial are ’courts’ in terms of Article 89(d). The Chief Justice penned an opinion with which Justices Dr. Bandaranayake, Amaratunga and Sripavan concurred, holding that Courts Martial exercise judicial power in terms of Article 4© of the Constitution. Justice Marsoof in a separate opinion held instead that Courts Martial in fact fell within Article 4(b), which deals with executive power.
Both opinions were in agreement however that Courts Martial were ’competent courts’ within the meaning of Article 13(4) of the Constitution – which protects the fundamental right not to be punished with death or imprisonment ’except by order of a competent court.’ They reached this conclusion on the basis that Article 16(2) (which deems punishments recognized by ’existing written law’ and imposed by ’competent courts’ to be compatible with the fundamental rights Chapter) includes Courts Martial within the meaning of ’competent courts’. They then concluded that the reference to ’competent courts’ in Article 13(4) also includes ’Courts Martial’ because Article 16(2) uses the identical terminology in reference to Courts Martial in deeming them to be compatible with the Constitution. This particular finding concerns us for two reasons.
First, Article 16 does not necessarily refer to Courts Martial when it deems the ’subjection of any person on the order of a competent court to a punishments recognized by an existing written law’ to be compatible with the Constitution. An alternative and more plausible interpretation of Article 16(2) is that it merely deems ’punishments’ for specific crimes recognized by existing written law to be constitutionally valid, without answering the question as to what constitutes a ’competent court.’
A more fundamental concern relates to the Court’s recognition of the constitutional status of Courts Martial. In deciding that Courts Martial are recognized by Article 13(4) of the Constitution, the Court has granted constitutional legitimacy to an institution that survives constitutional scrutiny only because it can never be reviewed for constitutionality. The protection of existing written laws from constitutional review is a troubling and regressive feature of our constitutional system, which allows all manner of laws fundamentally at odds with recognized fundamental rights to remain in force. It is by virtue of this reason alone that the system of Courts Martial are allowed to survive without constitutional impediment, even though its procedures are not even bound by the Evidence Ordinance or by the protections of due process rights recognized in the Code of Criminal Procedure. In that context, the Supreme Court’s ruling granting constitutional recognition to the system of Courts Martial, and that too under an Article meant to protect the personal liberties of all persons is cause for consternation. While it is understandable that the Court felt constrained by its lack of jurisdiction to review the Army Act which provides for Courts Martial, it could have avoided granting constitutional legitimacy to legal provisions that fall woefully short of guaranteeing fair trial standards recognized by domestic and international law.
Furthermore, the majority opinion deals a weakening blow to the separation of powers and the independence of the judiciary in Sri Lanka. The doctrine of separation of powers is a recognized doctrine forming part of our constitutional jurisprudence. The Petitioner argued that a Court Martial is not a ’court’ within the meaning of the Constitution on the basis that it is convened by and comprises the Executive, and requires certification by the convener for validity. The Court’s recognition that Courts Martial exercise the judicial power of the people, notwithstanding the substantial role played by the Head of the Executive in its functioning, is a blurring of the distinction between the judicial and the executive arms.
Likewise, the majority decision also adversely impacts the independence of the judiciary. Precisely because Courts Martial are constituted by the executive President, and convictions by it require his certification before becoming valid’ the ruling that Courts Martial also exercise the judicial power of the people undermines the basic assumption of independence from executive interference upon which any liberal and democratic judicial system is supposed to be built. By granting constitutional imprimatur to a process so completely directed by the executive, the Court has left the door open for further intrusions into the independence of the judiciary by the executive arm.
For these reasons, CPA expresses its deep concern over the decision and the reasoning employed by the Court.