Within a period of nearly two years and three months former Army Commander Sarath Fonseka filed a number of cases and appeals in the Court of Appeal well as in the Supreme Court and fought five cases - two cases in the Army Court Martial and three cases against him in the High Court.
He was arrested on February 8, 2010 by the Military Police.
First he was tried by the Army Court Martial on charges of engaging in politics while functioning as the Army Commander.
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| A picture of a happy family: Anoma Fonseka and daughters speak to the media last morning at the Nawaloka Hospital. Pic by S. Sudarshana Pathirana |
While the decision of the Court Martial was pending Mr. Fonseka challenged his detention by the Court Martial convened to try him. He stated that he could not be tried under the military law but could be dealt with only under the ordinary law.
The first Court Martial found Mr. Fonseka guilty and sentenced him to a dishonorable discharge from rank. He then challenged in the Court of Appeal, the proceedings of the first Court Martial.
Later, on May 25, 2010 he filed a petition in the Supreme Court challenging the order of the Court of Appeal which refused an application seeking to extend an interim order which stayed the proceedings of the Court Martial against him.
He then stated that the Court of Appeal order dated May 21, 2010 which refused an application by him seeking to extend the interim order dated May 3, 2010, staying the first Court Martial, was bad in law and sought to set aside the same.
He also challenged the decision of the second Court Martial on grounds of bias as the tribunal consisted of junior officers who had been punished by him while he was serving as the Army Commander.
In the second Court Martial he had been charged with presiding over a tender board and awarding a tender for military procurements to a company called Hi-Corp where his son-in-law had interests, without disclosing the fact.
On June 29, 2010 the Court of Appeal dismissed the application without costs. The court, without going into the merits of the case, dismissed the case noting that he had suppressed facts.
Then he appealed against the Appeal Court order in the Supreme Court. However he withdrew the application as he had challenged the 30 month imprisonment imposed by the second Court Martial in the Court of Appeal.
He challenged in the Appeal Court the decision of the second Court Martial, alleging bias of the Military Tribunal.
The Appeal Court, by its judgment dated December 16, 2011 dismissed the appeal on the basis of the suppression of material facts. Mr. Fonseka appealed to the Supreme Court challenging the judgment of the Court of Appeal that dismissed his appeal based on the findings and the sentence imposed by the second Court Martial, on the basis of suppression of material facts.
He stated that there was no suppression of material facts and the court dismissed the case without going into its merits.
Mr. Fonseka also sought to quash the decision of the Military Tribunal to convict him on the charge of presiding over a tender board as the Army Commander and awarding the tender to the company where his son-in-law is alleged to have had connections and to sentence him for 30 months imprisonment. Further, he sought to nullify the Appeal Court proceedings in its entirety.
He stated his son-in-law was not a shareholder or a director or an employee of the Company and the prosecution at the Court Martial did not dispute this position.
Ms. Anoma Fonseka filed a habeas corpus and revision application in the Court of Appeal, seeking Court to direct the Army Commander, Army Provost Marshal, Navy Commander and the Attorney General as the respondents to produce General Fonseka in Court to be dealt with according to civil law.
She stated that since Mr. Fonseka had retired from the Army he would no longer come under military law.
She sought a court order that Mr. Fonseka be produced in the court and be dealt with under the ordinary law. She further requested that Mr. Fonseka be released under any conditions court deems fit.
The habeas corpus and revision applications are still pending in the Court of Appeal.
Ms. Fonseka and the National Democratic Front General Secretary Shamila Perera complained to the Supreme Court on February 10, 2010 that the arrest and detention of Mr. Fonseka is illegal and were in violation of his fundamental rights.
Mr. Fonseka also challenged his unseating from Parliament stating, among other grounds that he was wrongfully unseated as a result of the prison sentence imposed not by a court recognized by the Constitution but by the Court Martial which was not recognized by the Constitution. Later this limited issue was referred to the Supreme Court and the court determined that the Military Court is a competent court. Since there are other contentions the case is pending in the Court of Appeal.
He also filed an appeal in the Supreme Court against the judgment in the White Flag case that imposed a three year imprisonment. In his appeal he stated that two judges in their majority judgment had failed to consider certain evidence. He also urged 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 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 war with the LTTE.
The appeal is pending.
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| High Court Registrar takes the lift to former Army Commander’s room at Nawaloka Hospital on Friday to get his signature for the relevant bail documents. Pic by Susantha Liyanawatte |
Cases defended in the High Court
The majority judgment of the Trial-at-Bar delivering its judgment on November 18, 2011 found Mr. Fonseka guilty on one count and convicted and sentenced him to a three-year imprisonment. He was acquitted on the other two counts.
High Court Judge D.M.P.D. Warawewa in his dissenting judgment acquitted Mr. Fonseka on all three counts observing that the newspaper editor should be held responsible for publication of the statement in question.
The Chief Justice appointed three High Court Judges to try Mr. Fonseka on three counts in respect of making a false statement to a newspaper with regard to the final stages of the war with the LTTE.
In the Hi-Corp case the Attorney General indicted former Mr. Fonseka on charges of cheating and criminal breach of trust in connection with the Hi-Corp incident.
Colombo High Court Judge Sunil Rajapakse upholding the preliminary objections acquitted Mr. Fonseka of all charges and discharged him from proceedings in the Hi-Corp case.
The defence made the preliminary objection on the basis that Mr. Fonseka had already been tried in the second Army Court Martial for similar charges in connection with Hi-Corp incident.
On September 17, 2010, the second Army Court Martial found Mr. Fonseka guilty, under Section 109 of the Army Act, of disgraceful conduct and sentenced him to two and a half years rigorous imprisonment.
The trial in the case filed against Mr. Fonseka for harbouring Army deserters is pending in the Colombo High Court.
Mr.Fonseka and his onetime secretary Senaka De Silva are charged with harbouring Army deserters in the aftermath of the last Presidential election and conspiring against the Government.
The court granted him one million rupees cash bail and 2.5 million surety bail pending the hearing of the case.
Court ordered him not leave the country.
Counsel seeks time for ex-Army chief to pay bail money
By Manopriya Gunasekera
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| Saliya Pieris, counsel for Mr. Fonseka, briefing the media on the bail conditions. Pic by Saman Kariyawasam |
Colombo High Court Judge Sunil Rajapksha granted conditional bail to Former Army Commander Sarath Fonseka in the case where he is charged with harbouring 12 army deserters.
The judge ordered the ex-Army chief to deposit cash Rs. 1 million in bail and provide two surety bails of Rs. 2.5 million each. Mr. Fonseka’s passport was impounded.
The court took into consideration Dr. Vajira Tennakoon’s medical report which stated that Mr. Fonseka was medically not fit enough to be produced in court, and directed Registrar H.A. Adikari to visit the ailing army chief at Nawaloka Hospital to obtain his signature on bail documents.
Mr. Fonseka’s counsel Saliya Peiris sought more time to pay the cash bail, saying the family could not find the money immediately. He said his client was a government servant who had been stripped of his pension. But the court said bail could be granted only if the conditions were met.
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| Ven. Maduluwawe Sobhitha Thera visiting the former Army Commander at the Nawaloka hospital. |
Earlier supporting the bail application, counsel Pieris told court that the President had obtained Cabinet approval for his release and if the court refused bail he would not be able to enjoy the benefit of his release. He said his client had been serving a prison sentence since September 28, 2010 and it was unlikely that his client would abscond.
Senior State Counsel Damit Totawatte did not object to the bail application. He said the offences committed were bailable and the second accused had been already released on bail.
Saliya Pieris with Anjana Rathnasiri instructed by Paul Ratnayake Associates appeared for Mr. Fonseka.Upul Jayasuriya appeared for the second accused Senaka de Silva.
Senior State Counsel Damit Totawatte with State Counsel Riyaz Barrie appeared for the Attorney General. |
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