By Faizer Shaheid –
Faizer Shaheid
Death is often not an instance of merriment for any, unless you are one who is aspiring for a parliamentary seat. In this country of dirty politics and sagacious politicos, it is quite easy to manipulate the law to fool the people. However, as Abraham Lincoln once said, “You can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time”.
In this particular instance, the death is of a veteran Politico, M. K. A. D. S. Gunawardana, who entered Parliament through the United National Front for Good Governance (UNFGG) National List. He who looks to make merry from his death is none other than Field Marshal Sarath Fonseka, who had contested under the flaming torch symbol in the last Parliamentary Election and lost.
Following the death of Gunawardana, speculation was rife that FM Fonseka would be appointed to his seat, even while Kabir Hashim, General Secretary of the United National Party (UNP), which is the main constituent party of the UNFGG, maintained suspense. However, now that the position of the UNP has been made clear, the legal position of his appointment is also mandatory.
Disqualification
Any person who is entitled to be an elector can be an MP, unless he is rendered ineligible as according to the grounds stipulated in Article 91 of the Constitution. Under Article 91 (1) a person is ineligible to become an MP if he is disqualified to be an elector. A person ordinarily serving a conviction, or has served a conviction in the last seven years would generally not be capable of being an elector, but FM Sarath Fonseka is no ordinary person. He is one who has received a presidential pardon, and such person who has received an absolute pardon from the President is exempt as according to Article 34.
However, Article 91 (1) (d) (xi) further disqualifies a person from becoming an MP if he is a Member of the regular force of the Army, Navy or Air Force. This ground of disqualification is the greatest threat to FM Fonseka’s bid to enter Parliament.
Member of a regular force
While many may argue that FM Sarath Fonseka is no more a Member of the regular force of the Army on the grounds that he had retired prior to contesting the Presidential Election in 2010, the issue arises from the fact that he was appointed as Field Marshal soon after the election of Maithripala Sirisena as President.
It must be understood that the title Field Marshal is the highest award for any Member of the Sri Lankan Army, and this title was conferred to him on 22 March, 2015. He is the first and only Sri Lankan to be conferred with such an award. The official website of the Ministry of Defence, www.defence.lk in hailing the recognition granted to FM Sarath Fonseka referred to the following: “This esteemed rank of ‘Field Marshal’ is a Five-Star rank which is equivalent to an ‘Admiral of the Fleet’ in the Navy and ‘Marshal of the Air Force’ in the Air Force. Field Marshal would remain in service in uniform for life and would bear the special baton in the left hand. He is entitling for a separate staff with security”.
The above paragraph clearly indicates that FM Sarath Fonseka ‘would remain in service in uniform for life’, and also that he is entitled to a separate staff with security. He also draws a salary and receives further perks as a Field Marshal. If we were to go by the statement made by the Ministry of Defence in their website, there is absolutely no doubt that FM Fonseka is still a member of the regular forces. As such, he shall be considered disqualified to be a Member of Parliament.
One may also argue that we have had General Anuruddha Ratwatte in the past holding a pivotal ministry under the Chandrika Bandaranaike Kumaratunge regime. However, what must be understood about him is that General Ratwatte had served in the Sri Lanka Army Volunteer Force, and not as a member of the regular force.
Ineligibility to fill the vacancy
For the purposes of understanding the complication in the Constitution, it must be realized that the Parliamentary seat of M. K. D. A. S. Gunawardana has become vacant as according to Article 66 of the Constitution, as he had died. To fill a vacancy under Article 66, the Constitution in Article 99 (13) (b) states that the candidate from the relevant political party who has polled the next highest number of votes shall be declared elected to fill the vacancy. This provision can be deemed very confusing on the ground that it could be taken to apply in the case of elected Parliamentarians.
To avoid this confusion, it is ideal that we understand how persons are picked to the National List as according to the Constitution. Article 99A of the Constitution specifies that every political party shall submit to the Commissioner of Elections, during the nomination period, a list of persons qualified to be elected as MPs in Parliament. From these lists submitted to the Commissioner, persons may be picked by the Secretary or Leader of the party to be the MP.
Therefore, it is mandatory that the name of the nominee to fill the vacancy in Parliament must be in the list submitted by the Secretary of the UNFGG. Questions may arise as to the standing of those who were not in the list of nominees for the National List seats of the party, such as S. B Dissanayake and Mahinda Samarasinghe, but were nonetheless elected. While the issue is contentious and being dealt with by the courts, it is reasonable to consider that their names were included in the lists submitted by the General Secretary of the Party, irrespective of whether they were in the National List or list of candidates.
In the case of FM Sarath Fonseka, he had not been a Member of the UNFGG at the time of the General Elections and contested under a different party altogether. He contested from the Democratic Party which failed to win a seat. His name was not included in the list submitted by the UNFGG to the Commissioner, and therefore is again not eligible to enter Parliament even through the National List of UNFGG.
Conclusion
While it baffles me as to how FM Sarath Fonseka had contested the previous election holding such disqualifications under his belt, my understanding is that the disqualifications would only apply if he had been elected to Parliament. His primary disqualification arises from the fact that he is a Member of the regular forces of Sri Lanka, and shall continue to be as long as he lives.
The secondary disqualification stems from his misfortune of not being a Member of the UNFGG, and not being listed as a nominee or candidate under the UNFGG during the same election. Either way, FM Sarath Fonseka is ineligible to enter Parliament through this vacancy created by M. K. D. A. S Gunawardana.
kp / February 4, 2016
A field marshal is not a regular member of the army. You seem to have made no attempt to differentiate between a ceremonial position for life in the forces and an actual serving rank.
/
King Wala Gemba / February 4, 2016
Gotabaya Rajapakshe and BBS Gnanasara will love this article.
/
AM / February 4, 2016
What ever some one can say FM Sarath Fonseka is an person who is blessed with an extraordinary determination.How much Trouble he has been through,how much self respect was damaged by MR and GR.But truth prevails.
/
Faizer Shaheid / February 5, 2016
I am just going to respond to your query. I think the evidences I have listed out in the article are fairly clear. Please read these paragraphs in the article:
-The official website of the Ministry of Defence, http://www.defence.lk in hailing the recognition granted to FM Sarath Fonseka referred to the following: “This esteemed rank of ‘Field Marshal’ is a Five-Star rank which is equivalent to an ‘Admiral of the Fleet’ in the Navy and ‘Marshal of the Air Force’ in the Air Force. Field Marshal would remain in service in uniform for life and would bear the special baton in the left hand. He is entitling for a separate staff with security”.
The above paragraph clearly indicates that FM Sarath Fonseka ‘would remain in service in uniform for life’, and also that he is entitled to a separate staff with security. He also draws a salary and receives further perks as a Field Marshal. If we were to go by the statement made by the Ministry of Defence in their website, there is absolutely no doubt that FM Fonseka is still a member of the regular forces.-
/
Old Soldier / February 5, 2016
It means he may wear his uniform for life – as an honour. Retired officers DO NOT wear uniform after active service. It does NOT mean that the Field Marshal is on the ACTIVE LIST. He has no status in the command structure of the Army.
It is obvious, the writer knows very little about the traditions of the armed services!
/
Faizer Shaheid / February 5, 2016
I would like you to explain the phrase, ‘remain in service’.
Further to that, he draws a salary as Field Marshal and hold perks such as a vehicle, a staff and vehicle allowances. It is clearly distinguished from a pension of any sort.
Kindly explain objectively without casting aspersions. Thank you.
/
Rather Old Soldier / February 5, 2016
There have been Field Marshals on the ACTIVE list as in WW2 – FM Montgomery and FM Alanbrooke, but today the Rank of Field Marshall merely entitles the holder, as an honour to remain on the Army List, but not ACTIVE. The same law regarding serving personnel of the armed forces and politics, applies in Britain. However Field Marshals have been members of the House of Lords.
At present there is Field Marshal the Lord Brammall, who was the former Chief of Defence Staff, who sits on the cross benches. This indicates that the rule does NOT apply to officers who have retired from ACTIVE service, even though they may be Field Marshals on the Army List.The other Field Marshals in the British Army, The Duke of Edinburgh, The Duke of Kent and The Prince of Wales do not have any command duties; FM Lord Inge, a former Chief of Defence Staff was appointed on the last day of his ACTIVE service, as was FM Lord Walker.
Critics who have not served in any armed force do not know what they are talking about! Lankan military law is based almost entirely on British military long, including the sections/definitions of active service. You may speak to anyone at field force headquarters for more information, and in fact, next time please do so BEFORE writing on topics you do not understand. Are you a 1st year law student?
/
the patriot / February 6, 2016
It’s clear that the explanation in the article fits the definition of a Regular Force in the Army Act. Half wits who don’t understand the Law should not be commenting on posts that are very well articulated based on the Law and Evidence.
/
Old Soldier / February 6, 2016
He is deemed to remain in service, to remain on the Army List and to have the privileges of a serving officer, but he is NOT on the ACTIVE list. He has NO status in the command structure of the army and as such has NO command authority in army affairs or control.
/
Saman / February 4, 2016
Shut Up……
This is the bright time for Our War Hero Field marshal Sarath Fonseka.
Now Mahinda and Gotabaya are suffering…..going through indescribable agony.
Our War Hero is completely intelligible and suitable for the post of Member of Parliament.
He was not chosen or elected by foolish people but by wise two gentlemen…..Mr.President and Mr.Prime Minister.
We salute Our President and Prime Minister.
May they both live long and may they have healthy lives.
/
Shrikharan / February 4, 2016
Poor Rosy Senanayake will now hit back for nominating a failed candidate, after telling her the same excuse for not allowing her to come through the backdoor.
Certainly Ranil Wickremsinghe is not being fair by Rosy Senanayake. One rule for Rosy and another rule for Sarath Fonseka!
For friends, rules go out through the window. Long live Sri Lanka!
/
anonymous / February 4, 2016
I think Rosy would not mind. She is an intelligent woman and she will have her deserved position when the time is right.
/
Shrikharan / February 5, 2016
anonymous
“I think Rosy would not mind.”
I don’t think so, as she fought tooth and nail to get her selected through nomination list. She even wanted a re-count of the votes.
However the lesson of it is not about Rosy or Sarath Fonseka. If it has been decided no rejected candidates should be selected to enter Parliament though the back door, insulting the very voters who rejected the candidate, then that decision should be followed for any Tom, Dick and Harry without favouring anyone. That is only fair and right.
I understand Rosy Senanayake was given a big lecture by the UNP bigwigs, why she as a failed candidate should not be selected through the nomination list (even though she had lost by a narrow margin quite unlike Sarath fonseka – forgive me if I am wrong).
Now bending over backwards and bending the rule to accommodate Sarath Fonseka am sure UNP will only stand to regret, wait and see! Rosy will never trust any advise from the so called UNP bosses. If the UNP goes ahead selecting Sarath Fonseka then it is certainly a slap on Rosy’s face.
People who disagree with me, just put yourself in Rosy’s shoes and still if you disagree with me then don’t blame when you get overlooked, it may be University admission!
/
k.soysa / February 4, 2016
We split hairs on all kinds of minor details but fail to see the larger picture! Yesterday, I was proud to listen to the National Anthem being sung in a National Language, Tamil at the conclusion of the Independence Day. A handful of people in Vavuniya paraded themselves saying that there is no “liberty”. Can anyone see the irony and the sheer meaningless stupidity of people who are brain-drained by vicious politicians, of ALL sides and all ethnicity?!! They can sing, listen and salute the Anthem in the heart of the predominantly Sinhala Colombo and all stood to attention. But, people are misled to protest in Vavuniya.
Today, we have a President who has GUTS to take on the old, hacked separatists ably supported by a seasoned Prime Minister. But we are not prepared to exercise some patients to allow the situation to settle.
Look at the big picture if SF with all his experience, determination and capability is given responsibility. At long last we will have a man to do a man’s job.
I ask you, Faisz how many laws have been broken and how much has these affected you and me? Relax, friend.
/
Josh / February 4, 2016
You dont seem to know the law properly. The post of FM is a ceremonial position and not a active member of the military force. And as per the law, he is able to actively involve in politics.
Next is the list issue. The law says that any member who has contested and lost is eligible. Doesnt matter what party. So that is not a problem too.
Stop trying to create unnecessary rumours to lick the ass of your currupt leader..
/
Vibhushana / February 4, 2016
FM Sarath Fonseka was about the only that looked good in the entire parade.
The Scout car and the Saladin should be de-commissioned – not showed off. Its safety hazard waiting to break down. They are antiques sold in second hand markets.
The ladies should be given a better firearm. The 9mm Brent gun is a relic from WW2. There are lighter and prettier ones that can be the standard issue for women.
UAVs, boats and sometimes even 30 mm cannons removed from naval vessels and mounted on civilian trucks with name boards looks very crude and tacky. They look like floats in a Mardi Gras – not one that shows off military capabilities.
It needs to be kept simple and elegant.
/
Samare / February 4, 2016
Make him Minister of Justice !
/
Samson Gunaratne / February 5, 2016
Minister of law and order would be the best for him to get back this folks to disipline. European countries hold disipline as no others.
That is the main prerequisite anyone of us to move forward. Punctuality in Germany for example is above everything. Even being late a minute can cost him everything. All these should be part of lankens if they really want to bring nation towards the human development.
/
bo / February 5, 2016
Writer, go an tell this to FM. Kindly do not waste your time. let Sri Lanka breath, let him take this suffocating nation out from under the big buttocks of our corrupt politicians. Jayawewa, FM SF. Do a good job clearing the country of the political rogues. We rely on you.
/
Upul / February 5, 2016
The devil they say, is in the details and who is asking whom?
Suffice to say that the UNP got SF because he could not seriously campaign with the SLFP with Rajapakse acolytes still running riot.
Despite the hossanas being sung on his behalf, the General’s character is best answered by those who know him, not know of him!
A conversation with the General Staff who served under him is very enlightening, spit and polish notwithstanding.
And please don’t even dare mention his courage and valor. It is not like he was fighting the LTTE in the trenches. His was a victim of a terrorist attack because he was the Army commander, not because he was Sarath Fonseka. Prior to that, can anyone remember what he did for the Army or the war effort.
Anybody remember a man named Janake Perera?
/
Ajantha / February 5, 2016
You obviously know nothing about him or the fact that he came up the ranks through the battlefield.
The condition insisted by Janaka Perera to take the post of northern commander in stopping the LTTE take over of Magna in 2000 unceasing waves was a certain Sarath Fonseka has to be appointed Jaffna commander.
Opinions of politically connected army deserter is not sought.
/
Ajanta / February 5, 2016
You obviously know nothing about him or the fact that he came up the ranks through the battlefield. The condition insisted by Janaka Perera to take the post of northern commander in stopping the LTTE take over of Jaffna in 2000 unceasing waves was a certain Sarath Fonseka has to be appointed Jaffna commander. Which commander of a division received battlefield injuries in Eelam wars? None in Eelam war 4??!! Fonseka was the exception. Opinions of politically connected army deserter is not sought.
/
Bagehot / February 5, 2016
Another Islamist apologist who is alarmed that his right to proselytise is at stake.
FYI – The FM, not being a serving rank, is not covered by the bounds of the laws you’ve quoted. I do think there should be a minimum criteria for CT articles (beginning with being based on a proper knowledge of the subject you’re writing about) and this one sure doesn’t meet it.
/
BARANJITH / February 5, 2016
POLITICALY MOTIVATED PEOPLE WILL CLAIM ANYTHING. BUT COUNTRY NEED THIS MAN TO FIGHT FOR THE COUNTRY.
/
moiez / February 5, 2016
Shut up and mind ur own business, do u know how much suffering SF went thru when he was sent to jail.Did former President went to front line to fight against the LTTE terrorist.Why are you against when he gets a ministerial post. It’s the President and prime ministers choice to appoint him so you better shut ur mouth and watch the future progress of this country now.
/
moiez / February 5, 2016
Hey you Faizer Shaheid just shut ur mouth.SF is a great leader and he know how to handle his job.
/
Sunil / February 5, 2016
Any of these articles (eg:-91) of the constitution not applied to most of corrupted MP’s & Ministers in the past regime and the new regime. Last two decades all corrupted became innocents, innocents became corrupted. Law is applicable only for the public, not for MAHA RAJA’s,
Public understand the difference between corrupt and innocent. Abraham Lincoln is a honest person has seen how slaves were mistreated during his time and change the constitution to give equal status for all humans. We have the constitution, but the law could be manipulated by MAHARAJA’s and his subordinates for their benefit. We have a long way ahead, may be another two decades to justify all clauses in the constitution where law is applicable equally to all(including Maharaja’s, similar to other western countries).
/
Very Old Soldier / February 5, 2016
There have been Field Marshals on the ACTIVE list as in WW2 – FM Montgomery and FM Alanbrooke, but today the Rank of Field Marshall merely entitles the holder, as an honour to remain on the Army List, but not ACTIVE. The same law regarding serving personnel of the armed forces and politics, applies in Britain. However Field Marshals have been members of the House of Lords. At present there is Field Marshal the Lord Brammall, who was the former Chief of Defence Staff, who sits on the cross benches. This indicates that the rule does NOT apply to officers who have retired from ACTIVE service, even though they may be Field Marshals on the Army List.The other Field Marshals in the British Army, The Duke of Edinburgh, The Duke of Kent and The Prince of Wales do not have any command duties; FM Lord Inge, a former Chief of Defence Staff was appointed on the last day of his ACTIVE service, as was FM Lord Walker. These critics who have not served in any armed force do not know what they are talking about!!
/
Nihal / February 5, 2016
FM Sarath Fonseka deserves the chance of entering Parliament on N/List, for the service he rendered, and the suffering he underwent subsequently due to political victimization,he vowed that he will not pass the headache of Terrorism of LTTE to his successor and he was determined to end the curse, and he did it with his super military planning , commitment and discipline, he will be an ideal Minister for internal Law and Order, Roads tackling the increasing traffic violations, look at how undisciplined the 3 wheeler s, Motor cyclists and young drivers are , Bus drivers ( 85% of theBuses owned by the members of the Police force). If Sarath Fonseka is appointed and given the task of disciplining the Highways and Roads, we srilankan will be very happy.
/
Nanda Sivapillai / February 5, 2016
This fellow seems to be from some other planet to raise doubts about Field Marshall Sarath Fonsekha. He needs to get his facts correct prior to compiling garbage like this. By the way, for us guys who distort truth are not relevant. Sarath Fonsekha is thousand times better than the ideal politicians that you seems to have described, for us they are the criminals, rapists, murderers, drug peddlers and thieves currently occupying the parliament of Sri Lanka. This semi-literate writer has made an indirect attempt to portray these criminals as saints. Sarath Fonseka’s pending entry into Parliament of Sri Lanka, is like a breadth of fresh air.
/
Upul / February 5, 2016
To the clueless who keep arguing about everything and anything… The rank of Field Marshall is equivalent to that of a Cabinet Minister. There is the double benefit of getting the staff and status from the Army and getting the perks of that of a Cabinet Minister ( without doing the politics )
He cannot give directions to the Army commander or get involved in any administration issues. However, his support staff is from the Army and therefore the conduits must work in both directions. This is not about him getting his fancy dress on, to parade in public.
Mr.Fonseka in his genius has chosen to get involved in the nitty gritty of politics, instead of enjoying his retirement and perks.He has already proven he has no capacity or personality for politics in no uncertain terms. Anyone claiming otherwise should get their head examined. His showing at the Presidential election had less to do with his capabilities and more to do with the UNP and the Opposition supporting him. Just the same way President Sirisena was supported recently.
There can be no peace for the power hungry.
/
Ravi.Perera / February 5, 2016
We the people rejected him at the recent general election by clear majority.
We do not want people who were rejected by the people to sneak in to parliament
through the back door.If this happens we will become the laughing stock for the
world.This will send the wrong signal to the world that Sri Lanka does not recognise the will of the people
/
Sumane / February 5, 2016
Its good RW and MS has now decided to bring in the big guns, The country needs forthright and hardcore disciplinarians, at this moment when the masses are confused with law and order differences and the police handling, inflated by some one sided media houses. Ambilipitiya case is in fact a wild, unlawful act, and there is a completely a different side to this story. The Town is taken over by mafia, underworld king pins running brothels and drugs, with many underworld groups operating, two weeks ago a lady Doctor was raped, a PC member house was ransacked. robberies,assaults and traffic inhalations rampant all over the area.
Its time some discipline and ruthlessness is brought in.
/
Lalith / February 5, 2016
What ever it is great. We can see the end of UNP soon. There is a saying “don’t hug snakes”. UNP will experience in 6-months.
/
Jason / February 5, 2016
You must be a turd to call him a snake
Snakes are also worshiped
/
Ajantha / February 5, 2016
You obviously know nothing about him or the fact that he came up the ranks through the battlefield.
The condition insisted by Janaka Perera to take the post of northern commander in stopping the LTTE take over of Jaffna in 2000 unceasing waves was a certain Sarath Fonseka has to be appointed Jaffna commander.
Which commander of a division received battlefield injuries in Eelam wars? None in Eelam war 4??!!
Fonseka was the exception.
Opinions of politically connected army deserter is not sought.
/
Spring Koha / February 5, 2016
Field Marshall Fonseka is an officer; but that’s it. Fate decreed that he would be at the helm when the the final shots were fired in the longest episode of our acrimonious history. He takes much responsibility for the way in which the last year of operations were conducted, and some credit for its successful(?) conclusion.
Officers of high rank guard their honour and dignity. But, driven by a streak of hubris, FM Fonseka chose to trade his in for political opportunism. It was a disaster, and may it be a lesson to others.
Gradually, those around him discovered that his real talent was limited to giving orders. When he challenged MR for the title, he came second, but so would have any monkey from Hantane, at that time. (That was the time MR walked on water, remember?)
Now he has hitched his wagon to the Elephant. I am sure that there are many who would wish, with me, that our latest FM just regains his dignity, says goodbye to the sordid world that is our politics, and rides off into the sunset. A peaceful retirement is what his long-suffering wife would dearly love for him (not to say, those nice daughters who cried their eyes out during his incarceration).
Sir, go west. The grass is greener they tell me in hot Arizona.
/
Rainzy / February 6, 2016
He is not the first to try out politics or fail in trying to change failing politics much responsible for our failing state.
Janaka Perera also tried politics and paid with his life, thanks largely to the reduced security accorded to him by a man of politics – Mahinda Rajapakse.
Knowing Mahinda’s dirty politics and underhand dealings with the LTTE, the security lapse is just the surface that even nullified Lakshman Kadirigamar and all gained by the Kapatipakse.
/
Talisker / February 6, 2016
If Fonseka stuck to the prior conventional methods it would have been a lot worse.
The exception in Eelam War 4 was that half of the army were composed of small teams (a first in world military set-up) reducing military and civilian casualties through dispersion, stealth and precision in operations.
/
Jim softy / February 7, 2016
rishad Bathiuddian is a [Edited out]
No muslims talked against him.
/
Justice seeker / February 7, 2016
The writer may be wrong in his interpretation of the law as it applies to FM Fonseka. But he is entitled to his opinion. Why one or two people commenting here drag the ethnicity of the writer which is totally irrelevant to the discussion? Are Muslims or for that matter a member of a minority not entitled to take part in discussion of national importance? Why does not the moderator of CT not block such blatantly racial trolls?
/
Harvey Specter / February 7, 2016
I verified his arguments through the Constitution, and the writer makes complete sense. You don’t have to vilify the writer because of your political biases. Read up on the law, and you’ll know how right he is.
And kudos to the writer for introducing us to this legal issue. Good Job!
/
Muhammed Fazl / February 7, 2016
Never kill the messenger. Commentators here should be intelligent enough to discuss the contents. In my eyes, very much a valid argument.
Good stuff Faizer.
/
Native Vedda / February 8, 2016
Muhammed Fazl
“Never kill the messenger. Commentators here should be intelligent enough to discuss the contents. In my eyes, very much a valid argument.”
Come on are you being serious?
What is there to discuss about the typings of HLD Mahinda, Dharshini Ratnawalli, ……
I rather ………………..
/