Decision on Gen. Fonseka’s stay in hospital on 9 May

By S.S. Selvanayagam

The Supreme Court yesterday (2) fixed the hearing on 9 May before a Divisional Bench of five Judges to decide on whether to extend the stay of Gen. Sarath Fonseka at Nawaloka Hospital for medical treatment.

The same Divisional Bench would on that day fix the date for hearing on the question as to whether it is proper to hear his bail application by the Supreme Court or the High Court as well as taking up the main appeal application against the judgment of the High Court in respect of the case known as ‘White Flag’.

In his bail application, Fonseka stated that a five judge Bench of the Supreme Court was due to commence hearing his appeal on 2 May (yesterday) against the verdict of the High Court in the ‘White Flag’ case and therefore he was requesting the Court to consider his bail application on the same day.

The main application against the High Court Judgment sentencing Fonseka to three years in jail and a fine of Rs. 5,000 or six months jail for default came up yesterday before the Bench comprising Chief Justice Shirani A. Bandaranayake and Justices K. Sripavan and P.A. Ratnayake.

Although the Divisional Five-Judge Bench was earlier constituted for hearing the main appeal on 2 and 3 May, the Court decided to reconstitute the Bench as some of the Judges are abroad. Fonseka has filed his appeal against the High Court judgment sentencing him to three years in jail and a fine of Rs. 5,000 or six months jail for default.

When the matter was taken up yesterday (2), Counsel Nalin Laduwahetti appearing for Fonseka submitted it was necessary for him to make submission regarding Fonseka’s stay at the Nawaloka hospital in order to obtain medical treatment.

In support of the bail application, he maintained the Supreme Court could hear this bail application. He submitted that out of the three Judges of the Trial-at-Bar, one judge was elevated to the Court of Appeal and another had retired.

He also submitted that last Friday (27), they filed the bail application before High Court but the Registrar of the High Court had refused to accept the same.

The Chief Justice retorted that she was perturbed to hear that the Registrar had refused to accept the application and that it was the duty of the Registrar to accept it. She said there are two duties, namely that of Registrar and that of a Judge; the duty of the Registrar is to accept the application and it is up to the Judge to decide on the application.

Counsel Laduwahetti said the Registrar spoke to a Judge before refusing to accept the application.

Solicitor General Palitha Fernando submitted the Supreme Court is an appellate Court and it is not proper to entertain the bail application.

Nalin Laduwahetti with Niroshan Perera and Chathuranga Amaratunga instructed by Paul Ratnayake Associates appeared for the Appellant Fonseka. Solicitor General Palitha Fernando with Deputy Solicitor General Buvenega Aluvihare, Senior State Counsels Detan Ratnayake, Navavi and Suresh de Silva appeared for the Attorney General.

Former Army Commander Sarath Fonseka was sentenced to three years in prison and fined Rs. 5,000 by the Colombo High Court with two of the three Judges on the Bench in the ‘White Flag’ case finding him guilty of “propagating a false rumour” in violation of Emergency regulations and the Criminal Procedure Code.

Fonseka was found guilty on the first of the three counts he was charged with by High Court Judge Deepali Wijesundera and M.Z. Razeen while Judge W.T.M.P.B. Warawewa found him not guilty on all three counts.

The Court handed down a three-year sentence, to run consequently, while he was fined Rs. 5,000, which has to be paid within six months, failing which he would be required to serve another six-month jail term.

The ‘White Flag’ case stems from an interview given by Fonseka to The Sunday Leader newspaper when he was the common opposition candidate at the last presidential election, in which he purportedly alleged that LTTE leaders who were surrendering to the Army carrying white flags were ordered to be shot by Defence Secretary Gotabaya Rajapaksa.

He was indicted before the Colombo High Court on 8 December 2009 on three counts including “propagating a rumour,” for attempting to promote hatred and cause ill-will and hostility among the people and for inciting the public against the State.

Judges Deepali Wijesundara (President), Zulfikar Razeen of the High Court Trial-at-Bar in their majority judgment ruled it has been established without doubt that the statement made by Fonseka claiming that Defence Secretary had ordered Major Gen. Shavendra Silva to kill any LTTEer who came to surrender was a violation of the Emergency regulations. They held that on the second and third charges the accused was not guilty.

Judge W.T.M.P.B. Warawewa in his dissenting judgment ruled that the prosecution had failed to prove the charges against former Army Commander Sarath Fonseka beyond doubt and acquitted and discharged the accused on all three counts.