CA calls for copy of President’s order to release Fonseka

By S.S. Selvanayagam

The Court of Appeal yesterday (14) called for the copy of the order by the President granting pardon to former Army Commander Sarath Fonseka enabling his release.

The Bench comprising Justices W.L. Ranjith Silva, A.W.A. Salam and Upaly Abeyrathne directed the Registrar of the Court to send letters to the Secretary to the Justice Ministry as well as the Secretary to the President asking for the copy of the said order.

Court called for the copy of the said order upon the move by President’s Counsel Romesh de Silva who appeared for the Petitioner Fonseka in the Writ application seeking to sit and vote in Parliament. The Court re-fixed the argument on 17 July at 2 p.m.

Counsel Romesh de Silva submitted that the President made an order under Article 34 of the Constitution that the Petitioner Fonseka should not serve the sentence imposed on him.

He further said that they wrote to the Secretary of the Justice Ministry for a copy of the said order but they are still not in possession of the same.

The President granted pardon to Fonseka under Article 34(a) which reads as follows: The President may in the case of any offender convicted of any offence in any court within the Republic of Sri Lanka grant a pardon, either free or subject to lawful conditions.

Petitioner Fonseka is seeking the Court for an order directing the Respondents to take all necessary steps according to law to enable him to sit and vote in Parliament and to exercise his powers, privileges and immunities as a Member of Parliament.

 Secretary General of Parliament Dhammika Kithulegoda, Deputy Secretary General of Parliament Dhammika Dassanayake, Elections Commissioner Dayananda Dissanayake, Returning Officer J.Sylvester, Commissioner General of Prisons Maj. Gen. V.R. de Silva, Army Commander Lt. Gen. Jagath Jayasuriya, Lakshman Nipunarachchi and the Attorney General were cited as Respondents.

Romesh de Silva PC with Saliya Peiris, Sugath Caldera, Riad Ameen, Shanaka Cooray and Eraj de Silva instructed by Paul Ratnayake Associates appeared for Fonseka. Deputy Solicitor General Farzana Jameel with Senior State Counsel Arjuna Obeysekera and Nerin Pulle appeared for the Attorney General.

Petitioner Fonseka is asking the Court to Make interim orders suspending and/or staying the operation of the communications/letters until the final determination of this application: namely (a) Sent by the 2nd Respondent informing the 3rd Respondent that in terms of Section 64(1) of the Parliamentary Elections Act that the Petitioner’s seat as a Member of Parliament has fallen vacant; (b) Sent by the 3rd Respondent directing the 4th Respondent to fill the vacancy in terms of Article 99 (13) (b) of the Constitution; and (c) Sent by the 4th Respondent to the 3rd Respondent containing the name of the 7th Respondent in order to publish his name in the Gazette as the Member of Parliament declared elected for the Colombo District in respect of the purported vacancy.

He is also seeking the Court to stay the operation of the Gazette Notification declaring the 7th Respondent as being duly elected as a Member of Parliament from the Colombo District until the final determination of this application

He is asking the Court to grant and issue mandates in the nature of Writs of Certiorari quashing (i) The decision of the 2nd Respondent (acting for and on behalf of the 1st Respondent) informing the 3rd Respondent that in terms of Section 64(1) of the Parliamentary Elections Act that the Petitioner’s seat as a Member of Parliament has fallen vacant; (ii) the direction made by the 3rd Respondent to the 4th Respondent to fill the vacancy in terms of Article 99 (13) (b) of the Constitution; (iii) the decision by the 4th Respondent to send a return to the 3rd Respondent containing the name of the 7th Respondent in order to publish his name in the Gazette as the Member of Parliament for the Colombo District for the purported vacancy; and (vi) the Gazette Notification  causing the name of the 7th Respondent to be published as being declared elected to Parliament

He is also asking the Court to grant and issue a mandate in the nature of a Writ of Mandamus directing the 1st and 5th Respondents to take all necessary steps according to law to enable the Petitioner to sit and vote in Parliament and to exercise his powers, privileges and immunities as a Member of Parliament.