A broad provision
as to persons liable to be taken
to military custody is contained in Section 35
of the Army Act which provides that
"a person subject to Military Law
who commits any military or civil offence
may be taken into military custody".
Section 57 extends the application of Section 35 to a period even after the person ceases to be subject to military law but in respect of offences committed whilst he was subject to military law. Hence the principal issue to be considered before one gets into the realm of offences, charges and so on, is whether General Sarath Fonseka was 'a person subject to military law' when he functioned as the Commander of the Army and later as the Chief of Defense Staff.as to persons liable to be taken
to military custody is contained in Section 35
of the Army Act which provides that
"a person subject to Military Law
who commits any military or civil offence
may be taken into military custody".
There is no complexity in deciding this issue since Part VII of the Act is itself titled "Persons subject to Military Law". Section 34 of this Part states that for the purposes of the Act, 'a person subject to military law' means a person who belongs to any of the following classes of persons:
(a) "All officers and soldiers of the Regular Force";
(b) "All such officers and soldiers of the Regular Reserve, Volunteer Force...."
The term 'officer' is defined in Section 162 to mean 'an officer commissioned as an officer of the army"
Part 11 of the Act is titled "Officers" and contains provisions commencing from Section 9 which deals with the commissioning officers to Section 12 as to the promotion and transfer of officers.
Part III of the Act is titled "Soldiers" and has provisions regarding their enlistment.
It is manifestly clear that the Commander of the Army is neither a commissioned officer nor an enlisted soldier. The appointment of the Commander is provided for in Part I of the Act titled "Organisation of the Army". Section 8 of Part I of the Act provides that the President shall appoint "a fit and proper person to command the army" and when so appointed that person shall be designated Commander of the Army. Hence one need not even be a commissioned officer to be appointed to command the army. Even after appointment the Act does not describe him as an officer. But, specifically states that the person appointed shall be designated Commander of the Army. Hence the Commander of the Army is not a person subject to military law in terms of the Army Act.
Military offences are set out in Part XII of the Act. Every offence defined in Section 95 to 130 is specifically worded to state that it applies only to a 'person subject to military law'.
Therefore
none of these offences apply
to the Commander of the Army.
Full Article
http://www.island.lk/2010/03/14/features1.html
none of these offences apply
to the Commander of the Army.
Full Article
http://www.island.lk/2010/03/14/features1.html
Last edited:
I always find you chasing Mr. Athula lol
