At forenoon last Thursday, retired General Sarath Fonseka had a visitor. It was at the heavily-guarded Navy Headquarters annexe where he is confined.
Major General Crishantha Silva, the Military Secretary, was to convey to him officially that he would have to face a General Court Martial. He wanted to hand over a set of documents including:
(a) A Convening Order by President Mahinda Rajapaksa (as Commander in Chief) assembling a General Court Martial to hear charges against him in the Ward Room (Officers’ Mess) of Navy Headquarters. They were to sit on March 16 and 17. It gave the names of the President and two members, all Major Generals. It also contained the names of four more Major Generals as "Waiting Members."
(b) Charge Sheet 1 containing three charges.
(c ) Charge Sheet 2 containing two charges.
(d) Abstracts of "summary of evidence" recorded at the Ward Room of the Navy Headquarters by Chief of Staff of the Army Major General Daya Ratnayake.
The video camera of a soldier rolled, as Major General Crishantha Silva tried to convince the former Commander of the Army to accept them. His response came in both English and Sinhala. It seemed senior Army officials wanted to have some evidence that Gen. (retd.) Fonseka was indeed directed to appear before a General Court Martial. "I am not under legal arrest," he intoned and added "mama meka baara ganney nehe (I am not accepting this). Maj. Gen. Silva walked away with the documents in his hand.
After much deliberation among senior Army officers, Government officials and legal advisors, President Mahinda Rajapaksa, signed a convening order for assembling a General Court Martial. Major General Harsha Weeratunga will be the President. He is Director General, Financial Management at Army Headquarters. Other members are Major General Lalith Wijetunga, Quarter Master General at Army Headquarters and Major General Aruna Jayatilake, Commandant, Sri Lanka Army Volunteer Force. (SLAVF). The latter replaced another Major General who was earlier selected.
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| At Thursday’s media conference Maj. Gen. Prasad Samarasinghe announcing the composition of the General Court Martial to try Gen. Fonseka |
The original plan to appoint a tri-services General Court Martial with acting Chief of Defence Staff, Air Chief Marshal Roshan Gunatilake, as President had to be abandoned. This was after Government's legal advisors pointed out that the Army Act, which was the first to become law, had no provision for a tri-service court martial to try offences committed by those in the Army. However, such provision was available in both the Air Force and the Navy Act that had become law later. This was how a naval rating who tried to assault the late Indian Prime Minister Rajiv Gandhi with a rifle butt in Colombo in July 1987 was tried by a tri-services court martial. It had been constituted under the Navy Act.
The Convening Order named Rear Admiral Shamindra Fernando as the Judge Advocate. He is a volunteer naval officer and is attached to the Attorney General's Department. His task will be to give advice to the court on questions of law or procedure relating to the charges. He is empowered to invite the attention of the court to any irregularity in the proceedings. He could question witnesses on any relevant matter and if felt necessary by the court sum up the evidence and advice upon the law relating to the case.
The names of four Major Generals have been listed as ‘Waiting Members.’ This is in keeping with Court Martial Regulations where an accused who challenges the composition of the General Court Martial could opt for a name from "Waiting Members." Army sources told the Sunday Times the four are Major General M.P. Peiris, Major General Lalith Daulagala, Major General M. Hathurusinghe and Major General Kamal Gunaratne.
However, the need for such a move will not arise in this instance. Gen. (retd.) Fonseka has taken up the position that he is not liable for any action under military laws since his retirement. He boycotted the recording of "summary of evidence." Thus, he wants to keep away from the General Court Martial too.
A significant feature of the Convening Order by President Rajapaksa is the following assertion. He has said, "I am of the opinion having regard to the exigencies of service the aforementioned officers shall constitute the members of the Court Martial, as officers of equal rank to that of the accused officer above named are not available."
This clearly showed that the Government wanted to appoint a General Court Martial comprising members in the same rank as General Fonseka. However, they could not find officers in the rank of four star Generals. Hence, they settled for the closest rank by naming three Major Generals.
Provision for such appointments under "exigencies of service" is contained in Section 6 (2) of the Subsidiary Legislation under the Army Act (The Court Martial - General and District - Regulations). It says: "The members of a court martial for the trial of an officer shall be of an equal, if not superior, rank to that officer, unless in the opinion of the convening officer to be stated in the order convening the court, officers of that rank are not, having regard to the exigencies of the service, available."
When the General Court Martial begins on Tuesday, it will first hear indictments against retired General Fonseka contained in Charge Sheet 1. On Wednesday, it will take up accusations against him in Charge Sheet 2.
Confirmation that the retired General will not attend the General Court Martial came at a news conference on Friday. JVP's Anura Kumara Dissanayake, joint spokesperson for Gen. (retd.) Fonseka at the Presidential elections, said lawyers would attend the Court Martial hearing (on behalf of Gen. (retd.) Fonseka) and challenge the "legality of trying the former Army Commander before a Bench comprising officers junior to him in rank." He claimed that there was no provision in the Army Act to arraign him before a Court Martial and such a trial was "illegal." Hence, he said, the retired General would not attend hearings.
Gen. (retd.) Fonseka's absence at the General Court Martial will not impede proceedings. Army officials are likely to place a loudspeaker at his annexe for Gen. (retd.) Fonseka to follow the proceedings. In addition, on Tuesday, a Major General will visit him to escort him to the Ward Room nearby (Officers’ Mess) where proceedings will be held. If he refuses, the officer concerned will report to Court that the accused has declined to attend court. Thereafter, the court is likely to resume proceedings in absentia.
Since investigations are still in progress on some serious allegations against retired General Fonseka, charges on these matters before the General Court Martial will not materialise. Instead, Government's legal advisors have recommended that such charges be framed under civil laws when inquiries are complete. These relate to allegations of a conspiracy to overthrow the Government and an alleged attempt to assassinate President Mahinda Rajapaksa.
The Criminal Investigation Department (CID) and the Terrorism Investigation Division (TID) are continuing investigations into these aspects. Also being investigated are a number of other deals by Hicorp (Pvt) Ltd., a company associated with retired General Fonseka's son-in-law Danuna Tillekeratne. Today, the Sunday Times on Page 20 exclusively reveals one such deal.
This week, TID detectives recorded statements from three journalists who were closely associated with General (retd.) Fonseka. They are Ruwan Weerakoon, Prasanna Fonseka and his brother Mihiri Fonseka.
On Thursday, Military Spokesman Major General Prasad Samarasinghe announced at a news conference at the MCNS (Media Centre for National Security) the composition of the General Court Martial. Though he gave the legal provisions, under which retired General Fonseka was being tried he declined to reveal the exact charges.
Highly placed Army sources told the Sunday Times that on Tuesday the General Court Martial would take up for hearing three different charges on Charge Sheet 1. On Wednesday, they will take up the two charges in Charge Sheet 2.
CHARGE SHEET 1 - The first charge, the Sunday Times learnt, is said to relate to remarks General Fonseka, who was then serving as Chief of Defence Staff, had made to one time United National Party Parliamentarian Johnston Fernando. He has since joined the UPFA Government. This is before Gen. Fonseka returned to Sri Lanka from a visit to the United States in October last year. He has spoken on the telephone and made what is being described by Army sources as some "sensitive and serious remarks."
These sources charged that the remarks were "traitorous and disloyal words." Johnston Fernando has claimed that Gen. Fonseka had a lengthy telephone conversation with him when he testified before Major General Daya Ratnayake who recorded "summary of evidence." He has in his testimony given details of the utterances made by the former CDS.
This is alleged to be a violation of Section 124 of the Army Act which deals with "traitorous words." It says: "Every person subject to military law who uses traitorous or disloyal words regarding the Sovereign shall be guilty of a military offence and shall, on conviction by a court martial, be liable, if he is an officer, to be cashiered or to suffer any less severe punishment in the scale set out in section 133, and, if he is a soldier, to suffer simple or rigorous imprisonment for a term not exceeding three years or any less severe punishment in the scale set out in section 133."
The second, these sources said, relates to General Fonseka, whilst serving as Chief of Defence Staff, sought the help of former UNP Kurunegala district Parliamentarian Johnston Fernando to have his name proposed at the UNP Working Committee as the Presidential candidate. The third charge, these sources revealed, relates to having political discussions with former UNP Parliamentarian Lakshman Seneviratne whilst serving as Chief of Defence Staff. Seneviratne has confirmed these discussions and what Gen. (retd.) Fonseka told him when he testified before Maj. Gen. Daya Ratnayake who was recording "summary of evidence."
The Sunday Times has learnt that Gen. Fonseka had been in constant touch with Seneviratne before he retired as Chief of Defence Staff (CDS).
On some occasions, Gen. Fonseka had sent his own CDMA telephone to Seneviratne through an intermediary, a journalist in an English Sunday weekly, to continue the dialogue. It had been at a later stage that Gen. Fonseka had made contact with opposition leaders, a move that paved the way for the opposition coalition that backed him at the January Presidential elections. Both Johnston Fernando and Lakshman Seneviratne are expected to testify at the General Court Martial.
Both the second and third charges in Charge Sheet 1, Army sources alleged, relate to Section 102 (1) of the Army Act. Titled "neglect to obey garrison or other orders," this section says: "Every person subject to military law who neglects to obey any general or garrison or other order shall be guilty of a military offence and shall, on conviction by a court martial, be liable, if he is an officer, to be cashiered or to suffer any less severe punishment in the scale set out in section 133 and, if he is a soldier, to suffer simple or rigorous imprisonment for a term not exceeding three years."
CHARGE SHEET 2 - The two charges in Charge Sheet 2 deal with transactions the Sri Lanka Army has involved itself with Hicorp (Pvt.) Ltd., where Gen. (retd.) Fonseka's son-in-law, Danuna Tillekeratne is involved. It is alleged that Gen. Fonseka committed "fraudulent acts."
The first deal relates to the procurement of fifty 5 KVA power generators from the Australian based firm British Borneo Defence through Hicorp (Pvt.) Ltd. As Chairman of the Tender Board, General Fonseka awarded the tender to this company though he was aware that his son-in-law Danuna Tillekeratne had an interest or concern. Despite knowledge of his son-in-law's involvement, he had not dissociated himself from chairing the Tender Board in contravention of procurement guidelines. General Fonseka had allegedly concealed the relationship until he retired in November last year.
The second deal involves the awarding of a tender to Hicorp (Pvt.) Ltd. to supply Sri Lanka Army with three VHF Direction Finders. It had been made through British Borneo Defence in Australia. Though General Fonseka had full knowledge that the local company was linked to his son-in-law Danuna Tillekeratne, he had chaired the Tender Board that had awarded the tender to the local company. He had concealed this relationship until he retired in November last year.
The Army says that Gen. Fonseka's actions in these two deals contravene Section 109 (e) of the Army Act, which deals with "Disgraceful Conduct." It says "Every person subject to military law who….. (e) commits any other fraudulent act herein before not particularly specified, or any act of a cruel, indecent or unnatural kind……. shall be guilty of a military offence and shall, on conviction by a court martial, be liable to suffer simple or rigorous imprisonment for a term not exceeding three years or any less severe punishment in the scale set out in section 133."
Section 133 deals with Scale of Punishment by a Court Martial. In a descending order of severity, it lays down what may be inflicted on officers convicted by a court martial. They include death, rigorous imprisonment, simple imprisonment, cashiering, dismissal from the Army, forfeiture in the prescribed manner, of seniority of rank……, severe reprimand, reprimand, or such penal deductions from pay as are authorised by the Army Act.
It is not immediately clear whether the General Court Martial sittings on Tuesday and Wednesday, inquiring into two different Charge Sheets, will conclude their sittings on the same day. A legal source said yesterday "it all depends on how much evidence they are able to lead. If it is not possible to finish on the same day, it could continue for days," the source added.
A team of lawyers are to appear before the General Court Martial on Tuesday and Wednesday. As our front page report reveals, the retired General's backers have retained the services of President's Counsel Daya Perera. Until last year, he was Sri Lanka's High Commissioner in Canada. The task for Gen. Fonseka's legal counsel on Tuesday and Wednesday would be to raise objections on the grounds that his arrest is and the constitution of the court are both illegal. It is on the same grounds that General Fonseka has refused to take part in the proceedings.
If found guilty on the charges levelled against him, the first consequence General Fonseka faces is cashiering. That means he will no longer be entitled to use the decorations of RWP (Rana Wickrema Padakkama), RSP (Rana Soora Padakkama), and VSV (Vishista Seva Vibushanaya). He will also not be able to use the terms rcds (Royal College of Defence Studies) and psc (Passed Staff College).
It was barely a year ago that General Fonseka was hailed as a war hero. Within weeks he will not be even a common man but a convict if charges against him are proved. That is the fate of a man who was once hailed as the best Army Commander in the world. |
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