The main opposition in Parliament which formed a grand alliance recently has been touting the name of Chief of Defence Staff and former Sri Lanka Army Commander General Sarath Fonseka as its common candidate at a forthcoming Presidential poll.

Speculation has been rife since the first announcement, and the speech General Fonseka made during a ceremony at the Washington Vihara added further grist to the mill of speculation.

Now, legal circles are engaged in analyzing the legal implications on whether or not the General could come forward as a candidate, leaving behind his official responsibilities in the military.

Most legal luminaries are of the opinion that the Constitution as well as the recently enacted Chief of Defence Staff Act No. 35 of 2009 debars General Sarath Fonseka from coming forward as a Presidential or for that matter any candidate at a Presidential or other election to be held in the near future.

They point out to the articles stated in the Constitution of Sri Lanka (Articles 91 and 92) which stipulate who may or may not contest Parliamentary and Presidential elections. Article 91d(xi) clearly stipulates that no member of the regular force of the Army, Navy or Air Force can be elected to Parliament or the Presidency. Neither can police officers nor public officers exercising police functions be elected to Parliament or the Presidency.

According to these stipulations, Customs, Excise, Police and others who have powers of arrest cannot contest Parliamentary and Presidential elections.

Article 11 of the Presidential Elections Act No: 15 of 1981 says that nomination for Presidential elections can be accepted only from those eligible to be elected. So a serving member of the armed services too cannot hand in nominations.

Hence, most who prefer General Sarath Fonseka to come forward as the common opposition candidate say that he could always tender his resignation from the military and come forward. Here again, there are legal complications as per the CDS Act.

The Chief of Defence Staff (CDS) Act No. 35 of 2009, under Section 3 and Sub sections 3(3) and 3(4) stipulate thus:

(3) The Chief of Defence Staff may, by letter addressed to the President in that behalf tender his resignation from the office of Chief of Defence Staff, at any time before the expiry of his term of office.

(4) Notwithstanding the provisions of subsection (3), a Chief of Defence Staff who tenders his resignation, shall not be relieved of the duties of his appointment, until the acceptance of such resignation by the President is notified to him in writing.

Thus, whether he likes it or not, General Fonseka will be the Chief of Defence Staff for another two years after being appointed as per Gazette notification of July 10, 2009 issued by the President. And even if he tenders his resignation from the post of CDS, the President can refuse to accept it, legal sources say.

Though General Fonseka’s term as Army Commander was extended by the President and is due to end in December this year, he is no longer subjected to the extension as army commander and is now the CDS and has to be for another two years effective July 2009. So the General’s term ends in July 2011.

However, a leading lawyer told Adaderana that General Fonseka could still find a probable recourse by stating that though he had resigned from his position as CDS, the President has refused to accept it, willfully to obstruct him from challenging the President at a poll.

But which way it might work and finally end is yet to be seen, while most wait for November 15, when the Sri Lanka Freedom Party (SLFP) holds its annual convention. President Mahinda Rajapaksa is expected to announce the future course of the party and possibly whether a Presidential or General election will be held first.

Courtesy: AdaDerana

Posted on Monday, November 09, 2009 @ 15:50:36 LKT by SaNDuN

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