The two war heroes marched in shoulder-to-shoulder. Alas, they were not going to receive their medals for valour, but one of them was to face a Military Court Martial; the other was only accompanying him to his seat as is customary in such matters.
Then, General (retd.) Sarath Fonseka turned to his onetime comrade-in-arms, Major General Shavendra de Silva and told him "Thama neda mata kivve sir mata thaththakenekwage kiyala". (Weren't you the one who said that I'm like a father to you).
The two brave warriors had fought many battles together to defeat one of the world's deadliest, best organised, utterly inhumane, deadly terrorist organisations the modern world had seen. Within ten months of that epic victory, circumstances had changed so much. Gen. (retd.) Fonseka, dressed in a flowing white national, now a politician who aspired to be the President of the Republic and Commander-in-chief of the Armed Forces was being arraigned before a Military Court Martial.
Maj-Gen. de Silva had turned up in his former Commander's annexe at Navy Headquarters to escort him to last Tuesday's General Court Martial at the Ward Room (Officers’ Mess). By then, there had been a change of stance by retired General Fonseka. As reported in these columns last week, it was Military Secretary Major General Chrisantha Silva who turned up last week to deliver documents including the Convening Order signed by President Mahinda Rajapaksa as Commander-in-Chief. This was exclusively revealed in the Sunday Times last week. However, the Sunday Times stands corrected on one fact. The Military Secretary did not take back the documents after Gen. (retd.) Fonseka refused to accept them and declared "mama meka baara ganney nehe." (I will not accept this).
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| An artist's impression of the General Court Martial |
Instead, Major General Chrisantha Silva left the documents, which were in a package on a table in the annexe and withdrew. Military Police officers, who were posted for duty, were to record this fact. Things began to take a different turn after Anoma Fonseka visited the retired General.
The latter was to ask her to hand over the document package to his lawyers. A military policeman intervened to say he would have to record that in his note book. There was a pause. Then, Gen. (retd.) Fonseka retorted "oka gannawa meheta" (Get that here) and placed his signature acknowledging the receipt of documents. Thus, Gen. (Fonseka) shifted his stance from boycotting the initial process leading to the General Court Martial (GCM) and the recording of 'summary of evidence'.
Sources close to the former Army Commander said he was legally advised to present himself before the General Court Martial (GCM). Such a move, he was told, would form the basis for raising issue before the civil courts. If he did not turn up before the GCM, the legal grounds to file action in civil courts would be stronger (or weaker) since matters relating to the conduct of the GCM could also be raised. Such a move was also to be important since the first consequence of the GCM finding him guilty would be cashiering him. This would mean stripping him of all his ranks and titles of honour. The sentence by the GCM, if found guilty, would need the endorsement of the President who is Commander-in-Chief.
So whilst Gen. (retd.) Fonseka chose to turn up before the GCM, his lawyers went ahead to file a writ application in the Court of Appeal against the Commander of the Army, the members of the GCM and the Judge Advocate General appointed for the purpose. More on that later.
Major General Shavendra de Silva escorted his one time Commander to the Ward Room of Navy Headquarters in Colombo Fort. The three-member Court Martial comprises Major General Harsha Weeratunga (President) Major General Lalith Wijetunge and Major General Aruna Jayatillake. Once the retired General came face to face with the Court Martial he remarked sarcastically, "usawiya patan gaththada?" (Have you started the court?)
The Court Martial itself was being held under controversial circumstances. With the world watching its proceedings, ironically, the same world that bereted him as a villain for the no-nonsense manner in which he prosecuted the war against the LTTE is now seeking justice for him; while at home, particularly in Government quarters, the very man hailed as a war hero is now being treated as a peace zero.
The procedure at a Court Martial differs from the proceedings before a normal court of law where the public and the media are permitted to be present and watch and cover proceedings. Here, the judges come first and take their seats, unlike in a court of law where the accused, the witnesses, the registrar, the media and the public take their seats first and rise when the judge or judges arrive last. A host of other legal procedures and rules of evidence tend to differ particularly because the offences under the law, in this case, the Army Act have extraordinary circumstances under which a military man has to be tried before a Court Martial.
The Army Act provides for General Court Martial, Field Court Martial and a District Court Martial. Gen. (retd.) Fonseka is being tried before a General Court Martial. In these matters, there is a panel of three Army officers hearing the evidence with a Judge Advocate who is someone well versed with the law. In this particular case, a senior lawyer from the Attorney General's Department, Shamindra Fernando, a volunteer in the Sri Lanka Navy holding the rank of Rear Admiral, is the Judge Advocate.
In what might seem peculiar, each of these judges take their oaths before the Judge Advocate, and he before the President of the Court Martial; the stenographers and interpreters all take their oaths, and so on and so forth. Even tea and cakes are served during breaks.
The point taken by Gen. (retd.) Fonseka and both his political backers and his legal team is that he is not subject to military law since he retired as Army Commander, and therefore should not be subjected to a trial before a Court Martial. At first, he refused to accept the set of documents containing his charge sheet from Major General Crishantha Silva, the Military Secretary.
This column referred previously to how he refused to respond to the preparation of his charge sheet which comes in these cases through a 'summary of evidence' which was recorded by the Army's Chief of Staff Major General Daya Ratnayake. The former Army Commander, well-known in the military establishment for his temperamental mood-swings, often barked in choice language at the Major General.
He once kicked the speaker placed in his room at the Navy barracks and yelled repeatedly at senior officers "Thamuselata Sinhala therenne naddo oiy" (don't you understand Sinhalese, men) when he refused to co-operate in the investigations. He still barks orders at the naval and army orderlies detailed to guard him, and on one occasion pulled up his wife, Anoma, for getting late with his lunch, only to calm down when told that she was talking to a visiting British politician regarding his case.
As reported in this column last week "The video camera of a soldier rolled as Major General Crishantha Silva tried to convince the former Commander of the Army to accept the charge sheet. 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".
Gen. Fonseka's lawyers received the documents including the charge sheet (containing two separate charges) last Thursday and it was on Friday that Paul Ratnayake Associates was retained to appear for the retired General. A leading President's Counsel Romesh de Silva was retained to lead the defence team, but another President's Counsel Rienzie Arsekularatne was retained to appear in the General Court Martial.
The defence team met over last weekend as the Court Martial dates had been fixed by President Mahinda Rajapaksa for Tuesday (March 16) and Wednesday (March 17). They decided to take two preliminary objections; one was to the jurisdiction of the General Court Martial, arguing that the former Army Commander was no longer subject to the Army Act, as he had retired from the Army, and also to the composition of the Court Martial.
They decided that they were going to argue that Major General Harsha Weeratunga, Director General, Financial Management at Army Headquarters was a brother-in-law of the present Army Commander, Lt. General Jagath Jayasuriya, and therefore could be prejudiced against the former Army Commander in view of the circumstances that arose soon over the sudden exiting of Gen. Fonseka as Army Commander late last year.
The legal team also decided they should object to the other two members of the Court Martial, Major General Lalith Wijetunga, Quarter Master General at Army Headquarters and Major General Aruna Jayatilake, Commandant, Sri Lanka Army Volunteer Force. (SLAVF). They were to say that one of them was removed by the former Army Commander, the accused before them, from the mainstream of the Army then fighting the LTTE, and the other had a prejudice against the then Army Commander for refusing to accept a tender that he had purportedly supported.
In such instances, the procedure is for two members of the panel to confer regarding the objections against the third; and so the three members of the Court Martial conferred with each other on each other's objections and came to the decision that these objections should be over-ruled, and that they were fit and proper persons to hear the charges against the former Commander.
On Tuesday, Arsekularatne said that he was only retained over the weekend, and that there were important legal questions that had to be gone into on the jurisdiction of the Court Martial. He asked for time.
The Court Martial then asked the accused, Gen. Fonseka if he pleaded guilty or not guilty; but he responded saying that he did not accept the jurisdiction of the Court Martial. It is not clear if the Court Martial recorded that as a 'Not Guilty' plea, or left it for another date; as April 6 - two days before the parliamentary General Election was fixed for the resumption of the Court Martial. Gen. Fonseka is a candidate at these polls.
On the next day, Wednesday (March 17) when the Court Martial resumed sittings to hear charge No. 2 against the ex Army Commander, the Judge Advocate Rear Admiral Shamindra Fernando made a statement from the bench stating that the Court Martial will seek a direction from President Rajapaksa as to whether he should not constitute a separate bench to sit on charge 2, which relates to alleged corrupt procurements of military hardware for the Sri Lanka Army during its campaign against the LTTE.
The Army website reporting these proceedings stated that the defence team had raised these objections, but the defence team says that they did not make such an objection, and the statement came from the Judge Advocate himself.
The Sunday Times learnt that on the night of March 17, hours before the second General Court Martial could begin sittings, there was a hive of activity in military circles and the security establishment. They were debating on several legal issues on the three-member General Court Martial hearing allegations of fraudulent activity over military deals involving Gen. Fonseka's son-in-law. One source said "some knotty issues cropped up and we needed to recommend that a new GCM be constituted to hear allegations in Charge Sheet 2."
Here again, the issue of constituting another General Court Martial has raised an issue. There were no members of an equivalent rank like that of Gen. Fonseka to hear the case. Hence, a new Convening Order to be issued by the President would have to invoke provisions in the law that would allow the appointment of ranks below a four star General under 'exigencies of service'. Several names are now under consideration.
In what appears to be a multi-pronged attack, much like the Army's final assault on the LTTE around this time last year, the retired General's defence lawyers went to the Court of Appeal on two separate cases; one was a Habeas Corpus application and the other a Writ application.
In the writ application, the retired General's lawyers have hit back hard. They have made some serious charges about the personal conduct of the present Army Commander and said that an inquiry initiated against him by the former Army Commander had led him to be prejudiced against Gen. Fonseka. Equally, they said that the members of the panel were officers who were handling pay and records, removed from command duties in the front lines and assigned functions relating to the co-ordination of supplies;
logistics, transport and medical care and the other was in charge of engineering and had a spat with the then Army Commander over some tender for the supply of vehicles. The lawyers claim that all of them are therefore prejudiced against the former Commander.
Some of the other highlights of the writ application:
- Almost immediately after the military victory an Act titled Chief of Defence Staff Act No 35 of 2009 was brought into operation in a rushed manner.
- Gen. Fonseka was appointed under the said Act titled Chief of Defence Staff with effect from July 15, 2009.
- Almost simultaneously, Lt. Gen. Jagath Jayasurya was appointed the Commander of the Army.
- Gen. Fonseka ceased to be the Commander of the Army with effect from July 14, 2009.
- As Chief of Defence Staff, Gen. Fonseka was not subject to the orders of the Commander of the Army; in fact, the said Office was higher in status than that of the Commander of the Army, Commander of the Navy, Commander of the Air Force and placed General Fonseka in a sui generis category of his own. This is a Latin expression, literally meaning of its own kind/genus or unique in its own way.
- Gen. Fonseka resigned from the post of Chief of Defence Staff on November 12, 2009 and the resignation was accepted by the President on November 14.
The case came up before the Court of Appeal on Friday, and has been postponed for March 25 (next Thursday) as Justice D.S, C. Lecamvasam, one of the judges listed to hear the petition declined to do so on personal grounds. A three member bench has now been constituted with Justices Satya Hettige (President of the Court of Appeal), Anil Gooneratne and Ranjith de Silva to hear the arguments.
With just over two weeks to go for the parliamentary election, taking the centre stage was not only the Gen. Fonseka issue. The campaign is now showing signs of peaking.
Those backing the retired general have been in a quandary; they find it difficult to defend the corruption charges levelled against him and his fugitive son-in-law Danuna Tillekeraratne. They are maintaining that Gen. Fonseka should not be held in military custody and leaving it at that.
The Fonseka team has retained the services of United National Party (UNP) National Lawyers Union President, Upul Jayasuriya to file action against the Rupavahini Corporation on contempt of court charges. It is significant that Jayasuriya was overlooked by the UNP High Command for a slot on the National List, and his legal services are not channelled through the party, but on an individual basis.
The UNP has taken up the position that it is also opposed to the detention in military custody of Gen. Fonseka, and that only a UNP Government can have him released.
The party's position is that even in the case of the allegation of corruption in the procurement of weapons, for which he is separately charged, the matter is essentially a civil matter because under the 2006 Procurement Guidelines signed by President Mahinda Rajapaksa, the Army Commander is responsible for tenders as a Head of Department like any other Head of Department, and therefore comes under the civil law.
The UNP launches its campaign from today (Sunday) with its media campaign and its leader Ranil Wickremesinghe visiting Jaffna and Vavuniya where a separate manifesto was released dealing with issues relating to the IDPs (Internally Displaced Persons), housing, the economic development of Pallai and Pooneryn etc.
In Colombo, two manifestos -- one relating to women -- were released. The strategy seems to be to issue short-targeted manifestos. Having learnt its lesson when it was in Government from 2001-2004 when it held back on jobs and welfare measures until the economy was put right, only to be played out of time by then President Chandrika Kumaratunga, the party has now promised implementation of its manifesto pledges within two years; the slogan being "kola thekai; avurudhu dekai" (2 pages;2 years).
President Rajapaksa meanwhile, launched the ruling United People's Freedom Alliance (UPFA) coalition's inaugural rally in Kandy on Friday. It was not an auspicious start with a section of the crowd hooting when the name of Minister Sarath Amunugama, standing for election from the Kandy District was mentioned by Rajapaksa (see news item on page 12). The President reportedly lost his temper and gave the other organisers a piece of his mind.
Infighting within the UPFA has reached almost unmanageable proportions with strong under-currents as E-day approaches on April 8. Most of the UPFA candidates are not fighting the Opposition, but among themselves to top the list and show their colours to the President, who seems unimpressed by the jostling. |
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