Diary of Terror- Eighth Report- 9th February

A Secret Trial before a Kangaroo Tribunal

Why is the Sri Lankan government avoiding the country’s courts ?

Sri Lanka Human Rights Watch

(February 10, Colombo, Sri Lanka Guardian) The case against Sarath Fonseka, the common candidate for the opposition who was able to win, even going by the official results, over forty percent of the votes in the last presidential election, is certainly one of the most important political cases ever to arise. However, in this case the government is making a deliberate attempt to avoid the Sri Lankan courts and instead, take the case before a military court.

Obviously this move, which appears to be most cowardly, is motivated by many factors. Some of those factors are as follows:

Manipulation of the charges – under the Criminal Procedure Code of Sri Lanka bringing a criminal trial requires the charging of the offenders and this is a serious process. The courts have to be satisfied that the charges are properly made according to the law and if this is not done correctly that itself is a reason to reject the charges.

One of the ways to avoid all the serious implications of charging an accused on very precise charges acceptable to the Sri Lankan courts is to go before a military tribunal. In such a tribunal dealing with the intricate problems of the law may be dismissed. The precise legality of the charges may also remain an important aspect of a military trial.

However the capacity to manipulate the process is easier within the context of a military tribunal, particularly if the tribunal is to be held secretly without the knowledge and participation of the public and without the proper participation of lawyers as required by the courts in Sri Lanka.

In a military tribunal it is also possible to manipulate the selection of the judges.

If the case was to be heard in a Sri Lankan court the judges would be those who are already appointed to the High Courts and there is hardly any possibility of selection of these judges by the government. Sri Lankan judges are professional judges with the necessary qualifications.

Whatever be the skepticism that has grown up over the extent of the Sri Lankan judiciary in recent times still the basic functioning of the courts is through the procedures established by law. Therefore the possibility to manipulate the judges is much less in the courts of Sri Lanka while such manipulation is quite possible within a military tribunal setting.

Already many senior army officials have been forced into retirement or subjected to other forms of punishment purely for political reasons of supporting the former army commander Sarath Fonseka or due to their alleged participation in politics. The arrest of Sarath Fonseka was carried out by a selection of army officers who were known to have been demoted for disciplinary problems by Fonseka when he was army commander. The antagonism of these officers was manipulated in the process of the arrest itself. Thus, in the interrogation process, such selective actions are possible and the interrogation procedures that will be followed are unknown. Thus the capacity to manipulate the process is much more possible in a military tribunal than in the courts.

The prevention of publicity

In Sri Lankan law holding of trials in open court is a fundamental principle which is always adhered to. This is part of the international principles relating to fair trial which has been incorporated into Sri Lankan law ever since the British system was introduced into Sri Lanka.

In an open court any case that attracts publicity will be reported extensively in the media. All arguments by lawyers and statements by the accused; the questioning of witnesses and even various statements by the judges when a trial of this nature takes place, are publicised. This same publicity may be completely denied in a military trial which may be held in secret and therefore the political impact of the trial may be completely denied.

Particularly in an issue of such public importance the denial of such publicity would help the government to avoid embarrassing questions which might damage its own reputation. In a public trial it is quite possible that not only matters relating to the accused but matters relating to the government itself could be revealed. All such politically damaging information could be kept away from the public eye by having the trial in secret.

Thus the entire process of taking the case away from the courts and instead having a military tribunal has been done for the purpose of the denial of a fair trial and to deny the public the information that they are entitled to receive in a case of this nature.