CA dismisses without cost Fonseka’s Writ challenging second Court Martial’s verdict

By S. S. Selvanayagam

A panel of three judges of the Court of Appeal yesterday (16) on an unanimous decision dismissed the Writ petition of former Army Commander Sarath Fonseka challenging the verdict of the second Court Martial that imposed him a sentence of 30 months imprisonment.

Justice Eric Basnayake with Justices A.W.A.Salam and Upaly Abeyratne agreeing in his judgment noted that the Petitioner is guilty of non disclosure and held that therefore he is not entitled to a discretionary remedy.

The Court dismissed the petition in limine and in view of the fact that the Petitioner is serving a sentence of imprisonment, he made no order for costs.

Petitioner Fonseka filed his Writ petition seeking a Writ of Certiorari inter alia to quash the decision of The second Court Martial which convicted him and the sentence of 30 months imprisonment imposed by it.

In his petition, he cited Army Commander Lt. Gen. Jagath Jayasuriya, Maj. Gen. M.P Peiris, Maj. Gen. S.W.L Daulagala, Maj. Gen. H. Hathurusinghe, Deputy Solicitor General (Rear Admiral) W.J.S Fernando and the Attorney General as respondents.

President’s Counsel Romesh de Silva with Sugath Caldera, Wasantha Batagoda, Riad Ameen, Shanaka Cooray and Eraj de Silva instructed by Paul Ratnayake Associates appeared for the Petitioner.

Additional Solicitor General Ms Bimba Tilekeratne with Deputy Solicitor General Buveneka Aluvihare and Senior State Counsel Nerin Pulle, State Counsels Shaminda Wikcramesinghe and Deepthi Tilegewardene appeared for the first, fifth and sixth respondents.

S.L Gunasekera and Sanjeeva Jayawardene instructed by Sudath Perera Associates appeared for second, third and fourth respondents.

Petitioner stated he was invited by the major political parties in the opposition to contest the 2010 Presidential Election as the “common candidate”. He lamented ever since his nomination as common candidate, there had been a coherent, systematic and discernible course of events, amounting in law to targeted malice.

Reducing and thereafter removing his security totally, the armed forces surrounding the hotel he occupied on the day of the Presidential Election, arresting and searching his supporters can be described as some of those events, Petitioner elaborated.

Petitioner Fonseka was taken into military custody on 8 February 2010 and kept in custody until the Court Martial. In the first Court Martial, he was charged that he engaged in political activities whilst being subject to military law.

He was convicted of the charges and was imposed the sentence of cashiering from the Army. He stated while in military custody, he contested Parliamentary Elections held in April 2010 and was elected to the Parliament.

The second Court Martial was convened on March 17 of 2010 which four charges relating to him having served as Chairman of the Tender Board pertaining to the procurement of military merchandise.

In the four charges, the tenders were awarded to M/s British Borneo Defence – Australia through Hicrop Ltd. The charges alleged that his son-in-law Danuna Tilekeratne had an interest or concern with Hicrop Ltd. It this relationship was disclosed, the Petitioner should have disassociated himself from the tender process in accordance with the Procurement Guidelines of 2006.

The charges alleged the Petitioner by concealing or failing to disclose that Danunu Tilekeratne is the son-in-law did commit a fraudulent act punishable under Army Act.

The Court of Appeal held that the Petitioner cannot escape without clearing the issue relating to bias with a sweeping statement that it is not relevant and observed that the Counsel for the Petitioner is no longer relying on bias as a ground to support for a Writ.