SC Divisional Bench rules to continue Fonseka’s stay at Nawaloka Hospital

By S.S. Selvanayagam

A Divisional Bench of five-judges of the Supreme Court yesterday ruled that the Status Quo (the affairs as it prevails) should remain enabling the former Army Commander Gen. Sarath Fonseka’s further stay at Nawaloka Private Hospital to obtain medical treatment.

The Bench comprising Chief Justice Shirani A. Bandaranayake, Justices N.G Amaratunga, P.A Ratnayake, S.I Imam and Priyasath Dep made this order until the specialist physician makes a decision to send him back to the Prisons.

The Court also fixed his bail application for 31 May to be considered in respect of an appeal against the judgment of the High Court on the ‘White Flag’ case before the same Bench on the question of jurisdiction and the merit of the application.

The Court yesterday took up the matter on limited issue as to whether the stay of Gen. Fonseka at Nawaloka Hospital for medical treatment should be extended.

Counsel Nalin Laduwahetti appearing for Fonseka submitted that on an application made to the Colombo High Court – which is hearing the indictment that Fonseka harboured army deserters – the High Court made a decision on April 25 that Fonseka should be transferred to Nawaloka Hospital for in-house medical treatment.

He submitted that the Supreme Court on 2 May fixed 9 May the hearing on this issue. Subsequently the High Court varied its decision on 4 May to transfer him to Colombo National Hospital on the grounds made by the application of the prisons authorities that required security could not be provided to Fonseka at Nawaloka Hospital.

He further submitted that prior to 2 May, the High Court judge had made an order to transfer Fonseka to Nawaloka Hospital and there was a subsequent application to vary the decision. He brought to the cognizance of the Court however that Fonseka continue to stay at Nawaloka on other reasons.

He told Court that he is being treated by Consultant Physician and Specialist in Chest Ailment Dr. Vajira Tennakoon who is not a Government servant.

He said according to Dr. Tennekoon, he is having a dedicated ward in Nawaloka for the treatment of chest ailments and he is not prepared to go to a Government hospital as he is a consultant physician at Nawaloka Hospital.

Counsel maintained the National Hospital, Colombo does not have a dedicated ward for the treatment of chest ailments, doctors treating chest ailments are not in the National Hospital and that there is no proper equipment or medicine there.

Counsel quoting a report by National Hospital security expert Sooriya Bandara submitted that there is no adequate security at the National Hospital when Gen. Fonseka was admitted there on a past attack on him.

He said Bandara had informed him that it was a “nightmare” to provide security at the National Hospital. He contended in contrast, there is a dedicate ward for the treatment of chest ailments at Nawaloka Hospital and the appellant Fonseka is paying his bill there. He told Court that Dr. Tennakoon has forwarded a medical report and all the details are set out in it. He said there are dust environment problem at the prisons and the Court premises and that the Court is being asked to let Fonseka continue his treatment at Nawaloka Hospitial as a humanitarian request.

Solicitor General Palitha Fernando appearing for the Attorney General submitted that the High Court made an order on 25 April that Fonseka be treated at Nawalaka Hospital and that order is not connected to the case. He said that it is related to the case that Fonseka has harboured some army deserters and that  provisions of the Prisons Ordinance which deals with prisoners.

He said according to the Prisons Ordinance Section 69, if adequate medical treatment could not be provided to the prisoners, they should be admitted to Government hospitals.

He submitted that Fonseka is still serving the prisons terms and no other order is made yet. He maintained that Fonseka is a convicted prisoner and that he should continue to remain in Prisons and there is a pending case in the High Court and his appeal had been rejected by the Court of Appeal in one case. In these circumstances, he should not be treated differently from other prisoners, he contended.

The main application was an appeal against the High Court Judgment sentencing Gen. Fonseka to three years in jail and a fine of five thousand rupees or six months jail for default.

Gen. Fonseka has filed his appeal against the High Court judgment sentencing him to three years in jail and a fine of five thousand rupees or six months jail for default. 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 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 she is perturbed to hear that the Registrar has refused to accept the application and that it is 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 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. 5000 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 years sentence, to run consequently, while he was fined Rs. 5000 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 by Defence Secretary Gotabaya Rajapaksa to be shot.

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 the 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 is 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.