SC re-fixes for support on May 30 Fonseka’s appeal on CA judgment

By S.S Selvanayagam

The Supreme Court yesterday re-fixed for support on May 30 the petition filed by the former Army Commander Sarath Fonseka for special leave to appeal against the judgment of the Court of Appeal which dismissed his Writ application challenging the verdict of the second Court Martial that imposed him a sentence of 30 months imprisonment.

The Bench comprising Justices N.G Amaratunga, S.I Imam and Priyasath Dep re-fixed the matter to be supported on 30 May, sequent to a move by the Petitioner’s Counsel for further date.

Petitioner Sarath Fonseka who is presently being incarcerated at the Welikada Prisons cited Army Commander Lieutenant General Jagath Jayasuriya, Maj. Gen. M.P Peiris, Maj. Gen. S.W.L Daulagala, Maj. Gen. M. Hathurusinghe, Rear Admiral W.J.S Fernando (Deputy Solicitor General) and the Attorney General as Respondents.

Romesh de Silva PC with Riad Ameen, Sugath Caldera, Shanaka Cooray and Eraj de Silva instructed by Paul Ratnayake Associates appeared for the Petitioner. Instructed by Sudath Perera Associates, S.L Gunasekera appeared for second and third Respondents while Sanjeeva Jayawardena appeared for the fourth Respondent. Additional Solicitor General Bimba Tilekaratne appeared for the first, fifth and sixth Respondents.

The Petitioner states that he was charged and found guilty by a purported General Court Martial II.  

He filed an application in the Court of Appeal for a writ of certiorari and prayed for the quashing of the purported conviction and sentence imposed on him. He states the purported order of the Court Martial was in the main that – he was purportedly guilty of the charges; and he was purportedly sentenced to 30 months imprisonment.

He states the order of the Court Martial was given on 17/09/2010; the application for the writ of certiorari was filed on or about 13/10/2010; the Judgment of the Court of Appeal was given on 16/12/2011.

He further states he has already served a period of more than one year and three months since the purported conviction and sentence. The Petitioner states the submissions in the said case was concluded on 15/09/2011 and the judgment was reserved for 15/12/2011 which is a period of three months and 90 days.

He states, in the circumstances, he had to serve 1/10th of his period of imprisonment while the Court of Appeal considered the judgment.

He states that the pith and substance of the charge was that he as Army Commander presided over a tender board which awarded the tender to a limited liability company in which it was alleged his son-in-law had connections.  

He points out that admittedly his son-in-law was not a shareholder or a Director or an employee of the limited liability Company. The prosecution at the Court Martial did not dispute this position.

The Petitioner states that it was common ground that the tender was correctly awarded to the limited liability company to which it was awarded; all persons recommended that the tender be awarded to the said limited liability company which was the lowest tenderer;

In the circumstances he claims it was common ground that the tender was awarded to the correct party; the Government or the Army did not suffer any loss by the award of the said tender.

He pleaded that the conviction was ex facie wrong, in that the evidence did not in any way disclose that his son –in- law had any connection to the Company to which the Contracts were awarded; he was in any way aware that his son-in-law had any connection with the company to which the tender was granted.

The totality of the evidence of the prosecution even if accepted, could not and did not constitute any offence under the Army Act in particularly section 109 of the Army Act, he maintained.

He pleaded that his conviction was without jurisdiction, ultra vires and incorrect in law.

Without prejudice to the aforesaid, the Petitioner pleads the sentence is illegal and/or unlawful; and/or the sentence is excessive.

He further pleaded that in terms of Section 109 of the Army Act it was inconceivable, completely wrong, unfair, unreasonable and disproportionate that the he be sentenced to 30 months imprisonment.  

He further stated the conviction and sentence was mala fide in that he was taken into custody only after he declared himself a candidate in the Presidential Election.  Till then he was described as the best Army Commander by the Defence Secretary.

He states that the Court of Appeal refused and/or did not even consider any of these submissions and did not give its mind at all to any of these submissions.

In the circumstances, the court of Appeal did not consider and/or refused to consider the main points upon which the writ was based, namely, inter-alia, there was no evidence to find him guilty of the Charges; even if guilty of the charges, there was no offence committed; the conviction was wrong in law; the sentence was unlawful; the sentence was excessive.  

He states the Court of Appeal dismissed the writ application by judgment dated 16/12/2011 merely on the ground that the Petitioner has suppressed material facts.

He states the only ground for the dismissal of the case was the alleged suppression of material facts.  The Petitioner states that the Court of Appeal did not in its judgement  – indicate what the particular suppression was; and how it became material to the case.

He further pleads it is abundantly clear that a suppression if at all on bias could not have been material to the main grounds of the Writ Application.

The Petitioner states that justice was not done to him in the case; justice did not appear to have been done to him in the case.

He states he did not withdraw the ground of bias but merely submitted that even if bias is not proved his appeal will succeed. He contends in the circumstances, the judgment of the Court of Appeal is ex facie wrong.