SF’s writ application against CM I

Notice issued on Army Chief, others

By Chitra Weerarathne

The Court of Appeal yesterday issued notice, returnable on December 17, 2010, on the present Army Commander, the members of the court martial I and the Judge Advocate.

The members of the Tribunal I are Major General Weeratunga, Wijetunga, and Jayatillake. The Judge Advocate Shavindra Fernando and the Attorney General were also among the respondents who were noticed.

Romesh de Silva PC at the outset told the Court of Appeal, that his client, General Sarath Fonseka, retired from the Army on November 14, 2009 and thereafter he ceased to be governed by the Military Law. The court martial I had no jurisdiction to conduct proceedings against Fonseka, convict, cashier and remove him from rank, and disqualify his medals of merit.

Counsel said that the Court of Appeal has already issued notice on the tribunal, in respect of the Writ Application against the Court Martial II. Hence, the petitioner was entitled to ask for notice on the tribunal, in respect of the court martial I, as well.

The Court Martial I had convicted Fonseka of being involved in politics while in the Army. As a penalty, he was cashiered.

The Writ Application in respect of court martial I, said that the members of that Tribunal were biased and Fonseka was not given a fair trial.

Fonseka was charged in the court martial I for getting Johnston Fernando and Lakshman Seneviratne to promote him as a Presidential Candidate, Counsel said adding that it was not charge all that bad to cashier him. "He is a war hero, who defeated the LTTE."

Counsel for the petitioner said the punishment imposed on Fonseka was far too severe, even if it was assumed that the accusation was true. Fonseka was even depraved of his pension, after 40 years of service in the Army. On the law of proportionality, the sentence imposed by the court martial I, cannot stand, Counsel said. He said the conviction had not been confirmed by the convening authority, who is the President.

Only the sentence had been confirmed, he said. Hence, there was no effective conviction. "If conviction is not confirmed, the sentence could be quashed by the Court, counsel said. Counsel requested that notice be issued.

The Deputy Solicitor General said that he will take a preliminary objection on the mentionability of the application, in terms of Article 35(1) of the Constitution.

Romesh de Silva PC, appeared with Sugath Caldera and Viraj de Silva for the petitioner Fonseka.

The Deputy Solicitor General Sanjay Rajaratnam appeared with Senior State Counsel.

Arjuna Obeysekera and Senior State Counsel, N. G. Pulle for the Attorney General.

The Bench Comprised, Justice Rohini Marasingha and Justice Upali Abeyratne.

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