A Sri Lanka Navy sailor had been hauled up before a Navy Court Martial. He had got into a rip roaring fight with another Navy comrade of his own rank, and they had both been caught in the act. It was an ugly fight, and was against all tenets of military discipline.
Appropriate punishment had been meted out to both Navy officers and one of them being unsatisfied with the sentence and what he perceived as harsh sanction, made a writ application to have the Court Martial conviction quashed. (Lt. Commander Ruwan Pathirana v. Commodore Dharmasiriwardene and Others – SLR – 24, Vol 1 of 2007 [2007] LKCA 2; (2007) 1 Sri LR 24 ( April 5, 2007)).
The Court of Appeal judgement excerpted suitably below, gives an indication of the antecedents of the application and what transpired initially in Court: “Learned DSG who appeared for the respondents submitted that the petition of petitioner should be dismissed as he has suppressed material facts from this Court. This matter must be considered first because the petition of the petitioner can be dismissed if this objection is upheld. Learned DSG submitted that the petitioner before filing the present application in this Court, had, by 1R7, appealed to the President to set aside the punishment, but the petitioner had failed to disclose this fact in his petition. The learned DSG, therefore, contended that the petition of the petitioner should be dismissed on the ground of suppression of material facts.”
There was no suppression of material facts contended the counsel for petitioner submitting that the petitioner merely wanted the sentence imposed on him varied by the President and did not ask for the punishment to be withdrawn.
The Court of Appeal boiled it down to the lack of uberrima fides – or the absence of utmost good faith. In other words the petitioner had been guilty of some sort of sleight of hand because he had in fact submitted that his appeal to the President was disclosed to the courts when it was not:
“Learned President’s Counsel contended that in any event the petitioner was not guilty of suppression of material facts since the petitioner has disclosed this fact in a further petition dated 8. 2. 2006. But on 29. 3. 2006 learned President’s Counsel informed Court that he was not supporting the further petition dated 8. 2. 2006 and would rely on the original petition dated 19. 10. 2005. Therefore Court is unable to consider the said further petition and as such I am unable to agree with the said contention of the learned President’s Counsel. Did the petitioner disclose the facts set out in 1R7 dated 14. 7. 2006 in his petition dated 19. 10. 2005? The answer is no. Thus the petitioner has failed to disclose the contents of 1R7 in his petition. For these reasons I hold that the petitioner is guilty of suppression of material facts and the petitioner’s conduct lacked uberrima fides.”
The Petitioner had objected to the charge sheet served on him by the Court Martial, but this aspect of his submission was frowned on by the Court due to the fact that such objections were never raised in the Court Martial itself. If the petitioner had acquiesced with the process, thinking that he could prevail in the Court Marital, he could not now inveigh against that process just because things had gone badly for him in the said proceedings. The following case was cited in this regard: The judgement of Justice Sharvananda (as he then was) in the case of Nagalingam v Luxman de Mel where His Lordship remarked thus: “Further the petitioner, having participated in the proceeding without any objection and having taken the chance of the final outcome of the proceedings, is precluded from raising any objection to the jurisdiction of the Commissioner of Labour to make a valid order after the zero hour. The jurisdictional defect, if any, has been cured by the petitioner’s consent and acquiescence.”
The Court of Appeal saw no reason to interfere with the decision of the Court Martial convicting the petitioner and dismissed the petitioner’s application.
In the matter of another Court Martial, that similarly ended up in the Court of Appeal as a result of a writ application by the petitioner who was sentenced to death for murder by that particular Court Marital, the petitioner’s counsel had taken up the position that all decisions with regard to the Court Marital must be divulged by each member of the Court Martial by word of mouth, as per Section 61(9) of the Air Force Act. (Abeysinghage Chandana Kumara vs. Kolitha Gunathilaka and 10 others, CA/WRIT/333/2011).
However, the Additional Solicitor General had contended that there is no such rigorous need and procedural irregularity doesn’t vitiate the Court Martial’s impugned decision in toto.
The judges of the Court of Appeal disagreed with this position and stated in judgement that the assertion that each member had not given his opinion by word of mouth on every matter the Court has to decide on, including the sentence, as the rules in the Air Force Act with regard to Court Marital mandate, is sufficient cause for the case to fail.
Moreover the ASG had cited a land case where the reasons for a land acquisition were not given but the Court of Appeal ruled that when it concerns the liberty of a person, a land case is not a tenable comparison.
Court held: “The issue in the instant case is not comparable. The instant case deals with the liberty of a man, not with his proprietary rights, as in Seneviratne’s case. Regulation 98 deals with the procedure relating to infliction of punishment, in fact, the most serious known to law – capital punishment or life imprisonment.
Maxwell emphasizes: Statutes dealing with jurisdiction and procedure are, if they relate to the infliction of penalties, strictly construed: compliance with procedural provisions will be stringently exacted from those proceeding against the person liable to be penalised, and if there is any ambiguity or doubt it will, as usual, be resolved in his favour. This is so, even though it may enable him to escape upon a technicality.”
Both the conviction and sentence imposed on the airman were quashed by the Court of Appeal.
The above cases indicate that Court Martial decisions are the subject of much legal wrangling and could turn out in a myriad of ways in a process of appeal in civilian Courts of Law.
(The writer can be contacted at: [email protected])
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