A five-judge Bench of the Supreme Court would consider on May 9 (Wednesday), whether or not the former Army Commander should be allowed to continue to receive medical attention at the private hospital where he is currently being treated for asthmatic bronchitis.
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| Gen Fonseka |
The court decision was taken after considering an application by Counsel Nalin Ladduwahetti appearing for Mr. Fonseka, submitted an appeal he was making on humanitarian grounds that Mr. Fonseka should be allowed to continue receiving treatment at the private hospital till the court rules on the bail application filed by Mr. Fonseka seeking his enlargement on bail pending an appeal in respect of the ‘White Flag’ Case.
Counsel submitted that the consultant physician who is treating Mr. Fonseka had recommended in-house treatment for Mr. Fonseka since his condition could worsen if he is to be taken back to prison. It was also recommended that Mr. Fonseka should be kept in a dust-free environment and should be regularly nebulised since his lungs are weak as there are some pellets still embedded in his lungs following the attempt by a suicide bomber sssson Mr. Fonseka’s life.
Solicitor General Palitha Fernando, PC., objected to the application as he had not seen any medical reports. Accordingly, the court directed the Registrar of the Supreme Court to call for the medical reports from the private hospital.
However, the main appeal in the ‘White Flag’ case that was to be taken up on Wednesday was postponed to May 9, as some members of the five Judge-Bench who were appointed earlier were out of the country.
Accordingly, the five-Judge Bench sitting on May 9, would fix dates to hear the main appeal.
The Chief Justice also noted that the same Bench would decide further dates to consider whether the bail application filed by Mr. Fonseka should be filed in the High Court or in the Supreme Court. Mr. Fonseka filed the bail application in the Supreme Court on April 26, seeking bail pending the hearing on the main appeal.
The Solicitor General argued that the bail application too should be filed in the High Court, though the bail application was wrongfully filed in the Supreme Court, which is an appellate court.However, Mr. Fonseka’s counsel averred that since the main appeal is pending in the Supreme Court and the Court had already taken up the case once, it was correct to file the bail application in the Supreme Court. The counsel also brought to the notice of the court that the Registrar of the High Court had after consulting a judge refused to accept the bail application.
The court noted that it was wrong to do so.
Accused-appellant Fonseka in his appeal stated that two judges in their majority judgment in the ‘White Flag’ case had failed to consider certain evidence. He also argued that the judges erred in law as they failed to fully evaluate the evidence and documents presented by the defence to the effect that the prosecution has not been able to prove the case beyond reasonable doubt.
Mr. Fonseka also argued that the two judges failed to consider and analyse incidents in terms of the provisions in the Evidence Ordinance and accepted principles of law.
Mr. Fonseka is seeking to set aside the sentence and conviction and acquit him of the charge of making a false statement to a newspaper with regard to the final stages of the war with the LTTE.The majority judgment of the Trial-at-Bar delivered its judgment on November 18, 2011 and found Mr. Fonseka guilty on one count and convicted him sentencing him to a three-year imprisonment. He was acquitted on the other two counts.
High Court Judge D.M.P.D. Waraweva in the dissenting judgment acquitted Mr. Fonseka on all three counts observing that the newspaper editor Frederica Jansz should be held responsible for the publication of the statement in question.
Judges Deepali Wijesundera (President) and Zulfikar Razeen in their majority judgment held that Mr. Fonseka was guilty of the first charge i.e. making a false statement to The Sunday Leader Editor Frederica Jansz that Defence Secretary Gotabaya Rajapaksa had told Brig. Shavendra Silva to eliminate white flag waving LTTE cadres wishing to surrender, during the final stage of the war, which statement could create racial disharmony and instil fear in the public. However, they had acquitted him on the second and third charges.
He was indicted on three counts under the Criminal Procedure Code and the Emergency Regulations.
Senior Counsel Nalin Ladduwahetti with Jinajith de Silva, appeared for Mr. Fonseka.
Solicitor General Palitha Fernando and Deputy Solicitor General Buvaneka Aluvihare appeared for the Attorney General.
Military court sentence cannot be remitted: Prisons official
By Wasantha Ramanayake
Prison authorities have so far not officially informed former Army Commander Sarath Fonseka he would not be granted remission of his prison term imposed by the military court, senior counsel Nalin Laduwahetti said.
Prisons Director General P.W. Kodippili last week told the Sunday Times that Mr. Fonseka could not be given remission of his sentence for good behaviour since he was sentenced by a military court. According to him Mr. Fonseka should serve his full sentence of two and half years that would end in March next year.
Responding to a query as to what action he could take if Mr. Fonseka is not granted a remission, Mr. Ladduwahetti said it would all depend on the decision of the Supreme Court whether he could be released on bail or not. He said if the Supreme Court releases Mr. Fonseka on bail pending the result of the appeal against the High Court judgment in the ‘White Flag’ case, then the prison authorities should officially inform us their decision.
“Then they should tell us whether Mr. Fonseka would be granted or refused the remission of his prison sentence given by the military court. We could then take whatever consequential action accordingly,” he said.
“But now I am concerned with getting him released on bail,” he said.
Mr. Fonseka was committed to be remanded after the delivery of the judgment in the ‘White Flag’ case.
In their majority judgment, a Bench of three High Court judges found Mr. Fonseka guilty of making a false statement to a newspaper that could create racial disharmony and imposed a three year prison sentence on him.
Junior Counsel U.L.G. Bandara appearing for Mr. Fonseka said that persons who are found guilty by any court of law are entitled to remission of sentence. He added that civilian courts like District and Appeal Courts and the Supreme Court have some jurisdiction to commit persons who are found guilty of certain offences to prison. Even these people are entitled to remission of their sentence if their behaviour is good.
Fonseka still at Nawaloka despite transfer
order to National hospital
Colombo High Court Judge Sunil Rajapaksa on Friday ordered the transfer of former Army Commander Sarath Fonseka from Nawaloka hospital to the Colombo National hospital for further treatment.
This was after a report was filed by Prisons Commissioner Ashoka Hapuaarachchi that they cannot ensure security at a private hospital, but could ensure security in a State hospital.
However, a spokesman for the family of Mr Fonseka last night said that he was still warded at the Nawaloka hospital.
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