Petitioner’s claim of bias cannot now be withdrawn, says Judge

The Court of Appeal in a unanimous decision, on Friday dismissed an appeal by former Army Commander Sarath Fonseka against the Court Martial ruling under which he was sentenced to a 30-month jail. term.

Prison officials covering Mr. Fonseka’s face as he leaves court on Friday. Pic by Indika Handuwala

The Bench comprised Justices Eric Basnayake, A.W.A. Salam and Upaly Abeyratne. Mr. Fonseka in a Writ of Certiorari filed, had sought to quash the conviction and sentence of 30 months imprisonment imposed by the second Court Martial ruling on September 9.

The Petitioner cited Army Commander Lt. Gen. Jagath Jayasuriya, Maj. Gen. M.P. Peiris, Maj. Gen. S.W.L. Daulagala, Maj. Gen. H. Hathurusinghe, Deputy Solicitor General (Rear Admiral) W.J.S. Fernando and the Attorney General as respondents.

The Petitioner, in his petition, stated that he was tried on four charges, claiming that he served as chairman of the tender board pertaining to the procurement of military equipment, and that he had awarded the tender to M/s British Borneo Defence-Australia through Hicorp (Pvt) Ltd, where his son-in-law Danuka Thilekeratne had an interest and was a beneficiary. The charges were that the petitioner was aware of the involvement of his son-in-law, and had willfully concealed this information to the board, which is a fraudulent act punishable under the Army act.

The Court of Appeal held that the Petitioner was guilty of non disclosure of facts. Therefore, was not entitled to a discretionary remedy, and hence, the Application was dismissed. Justice Salam observed, “As far as the stance of the petitioner is concerned, the issue relating to bias loomed large, both in the pleadings and the submissions. However, quite surprisingly, the petitioner has attempted to maintain at one stage of the case, that the ground of bias is not material to the Application, though it had been admittedly pleaded’.

The Court held that the petitioner cannot escape without clearing the issue relating to bias, with a sweeping statement that it is not relevant.