Courts made sure that men in uniform have rights too | Daily News

Courts made sure that men in uniform have rights too

Soldiers are not spared unfair extensions of services, etc., even though there are strict laws against desertion of post, etc.

A soldier – at the height of the war, though that was incidental – petitioned the Court of Appeal for a grant of a writ of certiorari quashing a military communication, effectively extending his time in the Army.

He had joined the Sri Lanka Army on May 24, 1988 as a soldier and had served as a Nursing Assistant till 1992. Thereafter he followed a Nursing Course for a period of three years. Prior to following the Nursing Course, the petitioner signed a bond to serve for five years after the completion of the Course, as is customary. He completed the nursing course on October 15, 1995.

The petitioner opted to resign from the Army in the year 2001, but found that his services were extended until 2001. Subsequently, he wrote to the First Respondent, the Army Commander, reminding him of his desire to resign but received no response. However, in 2001 he received a letter from the First Respondent stating that he is required to serve until 2003.

This was the last straw as far as the man was concerned, and he came to Court seeking the remedy of certiorari as stated above. Justice Sripavan in his judgement in the above case under review observed:

“In terms of clause 2 of the Soldiers Service Regulations No. 1 of 1994 the period of original enlistment of a soldier is 12 years of which he shall serve the first five years in the Regular Force and the remaining seven years in the Reserve unless otherwise ordered by the Commander of the Army. However, clause 3 of the said Regulation provides for a re-engagement of a soldier for a further period of military service in the Regular Force, not exceeding 12 years subject to the proviso referred to in the said clause.”

The Solicitor General making submissions stated that the petitioner’s extension of service had been reviewed and approved by the President.

Sripavan J observed: “I am unable to agree with the submissions made by the learned Deputy Solicitor General. Section 20 of the Army Act reads as follows: ‘Where the time at which a soldier is entitled to be discharged from the Army occurs during the period when the whole or any part of the Army is on active service, the President may by order prolong the service of that soldier in the Army for such period.”

The Court, duly considered the following three issues considering the terms of the above section:

(i)The whole or any part of the Army must be on active service

(ii) A decision has to be taken by the President whether the prolongation of the service of that soldier is required; and

(iii) If so, the President must decide the duration of the period to which such prolongation can be made.

The judgement eventually did not mince any words:

It was held: “Where an act or thing required by a section of a statute is a condition precedent, it would not be competent to a court to dispense with what the legislature has made the indispensable foundation of its jurisdiction. The duty of the Court is to interpret the words in accordance with the language used by the legislature and not to travel outside on a voyage of discovery. Thus, it appears that the President has to consider the prolongation of service of each and every soldier on a case by case basis. In other words, the President has not acted according to the letter of the law, according to the judgement.”

This is interesting. Presidents don’t seem to have the time to attend to these legally mandated though somewhat peripheral functions – and rarely does an Army officer of a relatively lower rank get this kind of case-by-case attention.

In a separate case in the Supreme Court for instance, another soldier appealed to the President to have his case reviewed. That case is encapsulated in this paragraph from the particular judgement: “Thereafter, upon being informed that his appeal was not favourably considered by the Commander of the Army, the Petitioner had preferred an appeal to the President, as further provided for by Section 32 of the Army Act. The Petitioner has asserted that even at the time of filing written submissions on his behalf in the instant application on September 12, 2018, the Petitioner had received no response to his appeal to the President.”

It seems that a case-by-case appraisal by the President is not the norm to say the least, considering all of the above.

In the case under review of the soldier who challenged his extension of service, Court observed in judgement: “For the proper or lawful exercise of a statutory power, there should not only be compliance with the substantive formal and procedural requirements laid down, but also the fair and reasonable exercise of discretion by the Authority vested with such power. In the absence of any order made by the President in terms of Section 20 of the Army Act, prolonging the petitioner’s service after the lapse of the period of original enlistment, this Court cannot arrive at a finding that the documents P4.P6 and P11 were in fact communications made after an order made by the President. (These were the documents informing the enlistee of his extension.)”

The State had submitted that the Petitioner had not been re-engaged, but that merely a ‘prolongation’ of his services had been ordered. But such a prolongation had to observe due process, and that was the considered judgement entered by Court. Be it extension or retirement, the internal Army decision making bodies clearly do not have carte blanche.

In a separate case also in the Court of Appeal, it was held that the decision of the Respondents to have the Petitioner retired prematurely – with effect from November 28, 2015 – referred to in the Army Board decision, has been made by that board without any such lawful authority conferred on that Board. Therefore, that decision is ultra vires the power conferred on that Board, it was held, and a writ of certiorari issued quashing that particular decision as well.