Supreme Court holds Court Martial is a ‘court’ in terms of Constitution

A five member Bench of the Supreme Court held last Tuesday that a Court Martial in terms of the Army Act is a “court” in terms of Article 89(d) of the Constitution.

The Supreme Court made this ruling in the Court of Appeal reference to it in connection with the Writ Application filed by former Army Commander Sarath Fonseka questioning the legality of the “court martial” after he lost his parliamentary seat after being sentenced to 30 months imprisonment by a court martial.

The Bench comprised Chief Justice J.A.N. De Silva and Justices Dr. Shirani A. Bandaranayake, Gamini Amaratunga, Saleem Marsoof and K. Sripavan.

The Court of Appeal referred the following question to the Supreme Court: “Whether the words ‘any court’ referred to in Article 89(d) of the Constitution refer to the Supreme Court, Court of Appeal and the other Courts of First Instance, to the exclusion of tribunals and Institutions or whether the words ‘any court’ include a Court Martial”

The Supreme Court judgment was read out by Court of Appeal judge Ranjith Silva. Here are excerpts of the judgment:

Chief Justice J.A.N. De Silva

At the outset I observe that Article 16, 105(2) and 168 (1) have preserved the validity of all existing laws at the time of the enactment of the Constitution and the jurisdiction of the Supreme Court in terms of Article 125 is limited to the interpretation of the Constitution. The Supreme Court has no power to strike down existing legislation. Accordingly, Courts Martial in terms of the Army Act is valid and operative and at no stage of these hearings did the Petitioner attempt to challenge the validity of Courts Martial in concept. Indeed it was the contention of the Counsel for the Petitioners that the concept of Court Martial is valid and that they would not be challenging its conceptual reality. So, it is clear that on both sides there is consensus that the concept of the Court Martial is valid and operative in the present context. I am also in agreement with this resolution and hold that the concept of the Court Martial is valid under this Constitution.

As pointed out by the Attorney General, interpretation of a constitutional provision cannot be made in a vacuum- such interpretation should coincide and be comfortable with the rest of the Constitution. For this purpose it is necessary to examine the intention of the Legislature when it comes to interpretation.
The Petitioner argues that the Court Martial is not a ‘court’ within the meaning of the Constitution for the reason that it is convened by and comprises the Executive, requires certification by the convener for validity, does not follow set procedures as a civil court, is not manned by a judicial officer as per Article 170, is not subject to the Evidence Ordinance, does not come within the provisions of Article 105(1), 4 (c), lacks permanency of regular courts, is limited to military matters, consist of ad hoc appointments, does not adhere to the principles of fair trial, and is in conflict with Article 13(4) of the Constitution by virtue of Article 16.

Shortly stated, it is the contention of the Petitioner that the Court Martial lacks the features of the court of civil judicature and is not covered by Article 105 of the Constitution as a court and contravenes Article 4(c).

Let us now consider whether these submissions withstand scrutiny on a broader wavelength i.e. the concept of Courts Martial and its bearing on the issue, its power to impose death sentences and sentences of imprisonment, and the object of the disqualification in Article 89(d) which is in question.
As I have held earlier, the concept of Court Martial is a valid and operative part of the law and the Supreme Court cannot strike down existing legislation. It is undisputed that the Court Martial is empowered to impose sentences of death and/or imprisonment. Then it follows that a sentence of death or imprisonment handed down by a Court Martial is valid until and unless overturned by a Court of competent jurisdiction.

Now, the Petitioner’s contention is that he cannot be unseated by a conviction and sentence of a Court Martial: or, in positive terms, he is entitled to sit and vote in Parliament in spite of the fact that he is under a sentence of imprisonment by a Court Martial.

Then, as observed by the Attorney General, is it then, the contention of the Petitioner that any person under sentence of death or imprisonment by a Court Martial, which sentence is valid and operative, still entitled to hold his seat in Parliament and be part of the Legislature of this nation? If that be the case, then the argument, if pursued to its logical conclusion, amounts to a statement that the Legislature may comprise of persons actively serving prison sentences or/and languishing in death row awaiting execution at the instance of the Executive of the State.

Let us now consider the submissions of the Attorney General and see whether this logical absurdity can be avoided. He submits that Article 16 and 105(2) keep the Army Act- and, as such, the Court Martial is alive and operative. He further contends that in terms of Section 133 of the Army Act the Court Martial is empowered to impose sentences of death and/or imprisonment. He states that in terms of Article 13(4), only a competent court can impose any sentence of imprisonment or death. Accordingly, he submits that the Court Martial, being empowered to impose sentences of imprisonment and/or death, is a competent court in terms of Article 13(4), and as such, attracts the provisions of Article 89(d) of the Constitution.
To my mind, this argument appears to be sensible up to this point.

But one must now consider the Petitioner’s argument that in terms of Article 105, a Court Martial is not recognized as a court and what Article 89(d) demands is a conviction by a court and nothing less. So also, in Article 4(c) it is provided that the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions, and so on, but Courts Martial are not referred to. Hence, the Petitioner contends that the Court Martial is not a ‘court’ in terms of the Constitution.

When taken in isolation, or as the Attorney General puts it, in a vacuum, this argument has merit. I will now proceed to examine whether the argument fits in with the rest of the Constitution, because, as I have earlier expressed, a Constitutional interpretation must withstand the Constitution as a whole and not merely parts of it.

Let us consider Article 4(c) and its implications on the matter in issue here and its relationship to Article 105(1) and (2) which appear to be the main Constitutional combatants in this most intriguing issue and their relationship to the relevant provisions of the Army Act as canvassed by the parties.

A reproduction of Article 4(c) would be as follows:

4(c) 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, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law.

105(1) 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 other Courts of First Instance, tribunals or such institutions as Parliament may from time to time ordain and establish.

105(2) All courts, tribunals and institutions created and established by existing written law for the administration of justice and for the adjudication of settlement of industrial and other disputes, other than the Supreme Court, shall be deemed to be courts, tribunals and institutions created and established by Parliament. Parliament may replace or abolish, or, amend the powers, duties, jurisdiction and procedure of such courts, tribunals and institutions.

Let us now set down the relevant provision of the Army Act:
46(1) A general court martial may be convened by the President or such officer not below that of a field officer as may be authorized by the President.

(3) 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 a field officer...proviso
63(1) ……the conviction of and sentence passed on, an accused by a court martial shall not be valid until confirmed by the authority having power under s 64 to confirm such conviction and sentence.
64. The authority that shall have the power to confirm the conviction of an accused, and the sentence passed on him, by a court martial shall,

(a) if that court martial is a general court martial, be the President or such officer of a rank not below that of field officer as may be authorized by the President, or (b) 65. (powers of confirming authority)
Now, it seems that there is no contest between parties that a court martial, in trying a case, acts judicially. The Petitioner complains this is an instance where judicial power is exercised by the Executive and as such causes a disruption in the separation of powers and offends Article 4(c) of the Constitution.
It is relevant at this point to set out Article 16 of the Constitution which reads:

16(1) All existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter.

(2) The subjection of any person on the order of a competent court to any form of punishment recognised by any existing law shall not be a contravention of the provisions of this Chapter.
(The said Chapter III refers to Fundamental Rights)

Let us now join Article 105(2) to Article 16:

105(2) All courts, tribunals and institutions created and established by existing written law for the administration of justice and for the adjudication of settlement of industrial and other disputes, other than the Supreme Court, shall be deemed to be courts, tribunals and institutions created and established by Parliament. Parliament may replace or abolish, or, amend the powers, duties, jurisdiction and procedure of such courts, tribunals and institutions.

The position would be that all courts institutions and tribunals except the Supreme Court existing at the time of the promulgation of this Constitution and the existing related laws continue so under this Constitution. So, the Army Act has been recognized under this Constitution. It follows then that the concept of the court martial which is part and parcel of the Army Act, and its competency to convict and impose punishment as according to the Army Act, is also recognized by this Constitution. Further support for this conclusion is added by Article 142:

142. The Court of Appeal may direct-
(i) that a prisoner detained in any prison be brought before a court martial or…for trial…;
Here again one finds support for a contention that the court martial is recognised by the Constitution- in direct and unequivocal terms.

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 recognised by the Constitution as such in terms of the second limb to Article 4(c).

Now, as I have pointed out earlier, there is no contest that the concept of the Court Martial is a reality and that it has the power to hear and try cases, act judicially, and impose valid sentences including imprisonment and/or death. The only quarrel here is whether the Court Martial is “any Court” in terms of Article 89 of the Constitution. The validity of the concept of Court Martial in itself and its power to determine cases and impose sentences of imprisonment and/or death not being contested, and, the only contest being its status in the hierarchy of institutions dispensing justice, Article 13(4) of the Constitution brings it within the description of not only a “court” but a “competent court”, since, in terms of Article 13(4), only a “competent Court” can impose sentences of death or imprisonment.

Accordingly, having regard to the manifest intention of Article 91(a) read with 89(d) to safeguard the integrity of Parliament, the recognition of Courts Martial in Article 4(c) of the Constitution as well as in the direct reference to Courts Martial in Article 142, the recognition of legislation inclusive of the Army Act and Courts Martial therein existing at the time of coming into force of the Constitution in terms of Article 16(2) and 105(2), the power of Courts Martial to impose sentences of death and imprisonment in terms of Section 133 of the Army Act read with Article 13(4) of the Constitution wherein it provides that such sentences may be imposed only by competent courts, I hold that the Court Martial in terms of the Army Act is a “court” in terms of Article 89(d) of the Constitution.

Excerpts of Justice Marsoof’s ruling

Justice Saleem Marsoof gave a different interpretation to why a ‘court martial’ is considered a ‘court’ but cited different reasons for reaching this conclusion. This is his ruling:

In my considered opinion, the institution of Court Martial, being an emanation of executive power, is not a court, tribunal or institution set up for “the administration of justice which protect, vindicate, and enforce the rights of the People” as described in Article 105 of the Constitution, and has no place in Chapter XV of the Constitution. In my view, none of the provisions of that chapter, including the provisions enshrining the independence of the judiciary (Articles 107 to 117), have any relevance with respect to a Court Martial. Any member of the Armed Forces who sits on a Court Martial does not hold paid office as such, nor does he fall within the definition of “judicial officer” found in Article 170 of the Constitution, although he is bound to act judicially when called upon to sit on a Court Martial.

However, this does not conclude the matter, as the question posed to this Court has to be understood in the light of the other sub-paragraphs of Article 89, which seek to disqualify a person from being an “elector”, and when read in conjunction with Articles 66(d) and 91, from sitting and voting in Parliament. First and foremost, it is relevant to note that Article 89(d) contemplates a person who is currently serving or has completed serving a sentence of imprisonment (by whatever name called) for a term not less than six months within a period of seven years immediately preceding, and includes a person who is or has served such a sentence of imprisonment awaiting the execution of a sentence of death.

Obviously, the question of disqualification would not arise once the death sentence is executed, but the reference to the “death sentence” is made to catch up a person who is on death row for a period exceeding six months awaiting the execution of the sentence of death. In my opinion, the disqualification set out in Article 89(d) arises from the physical or moral inability to sit in Parliament and perform the functions of a Member of Parliament efficaciously. It is relevant to note that all the other sub-paragraphs of Article 89 also contemplate disqualifications of a similar nature. If one excludes from the analysis sub-paragraphs (a), (b) and (c) of Article 89, which respectively deal with persons who are not citizens of Sri Lanka, persons below eighteen years of age, and persons of unsound mind, all the other sub-paragraphs of Article 89 contemplate findings involving moral turpitude, but in none of them are the words “any court” used.

It is in this context necessary to note the important fundamental right enshrined in Article 13(4) of the Constitution which provides that-

“No person shall be punished with death or imprisonment except by order of a competent court, made in accordance with procedure established by law.”

It is obvious that notwithstanding the provisions of the Constitutions we have had since independence, particularly the provisions enshrining the doctrine of separation of powers and the concept of the independence of the judiciary, courts martial have survived by reason of the enactment of the Army Act of 1949 and its continuance as “existing law”. The concept of continuance of existing law, which was enunciated by a Full Bench of the Supreme Court in the Application for a Writ of Prohibition to be directed to the Members of a Field General Court Martial (1915) 18 NLR 334, is now embodied in Article 168(1) of the Constitution, which was quoted earlier in this determination.

In this connection, it is also necessary to consider the provisions of Article 16 of the Constitution, which provides as follows:-

(1) All existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter.
(2) The subjection of any person on the order of a competent court to any form of punishment recognized by any existing written law shall not be a contravention of the provisions of this Chapter. (emphasis added)

Article 16 occurs in Chapter III of the Constitution dealing with fundamental rights, and the effect of sub-article (1), particularly the words “notwithstanding any inconsistency with the preceding provisions of this Chapter”, is to shield “existing law” from any scrutiny for any inconsistency with the fundamental rights contained in Chapter III. Sub-article (2) of the said article also has an important bearing on the question whether a courts martial can legitimately be regarded as a “competent court” within the meaning of that phrase contained in Article 13(4) of the Constitution, which provides that no “person shall be punished with death or imprisonment except by order of a competent court made in accordance with procedure established by the law.” It is clear that by reason of the express provision of Article 16(2) that provisions of “existing written law” such as the Army Act which empowers a Court Martial to impose various punishments including death “shall not be a contravention of the provisions of this Chapter” and is therefore a court that is competent to impose punishment. In fact, in the course of oral submission before this Court, learned President’s Counsel for the Petitioner and the 7th Respondent quite rightly conceded that a Court Martial is a competent court within the meaning of the phrase in Article 13(4) of the Constitution.

It is manifest from the various provisions of the Constitution noted above, that it is envisaged that there can be courts competent to impose punishments, including the death sentence, which are not part of the regular judicial hierarchy. When understood in this light, the phrase “competent court” includes not only a regular court but even an “extraordinary Court” such as the Court Martial (per De Sampayo, AJ. in Re Application for a Writ of Prohibition to be directed to the Members of a Field General Court Martial (1915) 18 NLR 334 at page 339).

It is in my opinion, unimaginable that a person who has been convicted or found guilty of any of the offences contemplated by Article 89(e) to Article 89(j) or who currently serves, or has within seven years immediately preceding served, a sentence imposed by any court in circumstances contemplated by Article 89(d), including those on death row, should be free to participate with honorable members of Parliament in the affairs of State. It is both irrational and illogical to distinguish between a person merely serving a sentence of imprisonment exceeding six months, and a person who is awaiting the execution of a death sentence. I am therefore of the opinion that the words “any court” in Article 89(d) should be construed in a manner so as to include all courts which are created and established or otherwise recognized by the Constitution as being competent to impose the punishments envisaged by that Article, including a Court Martial. For all these reasons, I agree with the conclusion reached by My Lord the Chief Justice that the words “any court” used in Article 89(d) of the Constitution include a Court Martial.