Commander abusing President, a military offence - Counsel

If the Commander of the Army abused the President, it will be a military offence, Counsel S. L. Gunesekera told the Court of Appeal yesterday, when the Writ Application, filed by General Sarath Fonseka, against the jurisdictions of the Court Martial was taken up.

Gunesekera appeared for two members of the Second Court Martial Tribunal, convened by the President to inquire into retired General Sarath Fonseka’s conduct.

He said that on November 12, 2009, General Sarath Fonseka wrote to the President requesting to be allowed to retire from the Regular Force of the Army. It was not that he sought to resign from the post of the Chief of Defence Staff. On November 11, 2009 he sought to retire from the Army. He cannot say that on July 14, 2009 he relinquished his commission with the Army and that he was not subjected to the military law thereafter. He had relinquished his post as commander and not relinquished his commission with the Army.

He said according to section 2/3 of the CDS Act, he continues with the commission with the Army, by being the CDS, since July 15, 2009. Hence, he is within the purview of the military law.

The Court of Appeal refused interim relief against the proceedings of Court Martial (1). Thereafter he could not ask for interim relief against the Second Court Martial. The applicant Fonseka has not told the Court of Appeal about the refusal of interim relief against the First Court Martial.

The petitioner has failed to tell the court of Appeal even about his continuation with the commission in the army, after July 14, 2009, and after becoming the Chief of Defence Staff on July 15, 2009.

He said the Court Martial refused notice on the Judge Advocate, Deputy Solicitor General, W. J. S. Fernando, of the First Court Martial. Fonseka had not told the Court of Appeal about that in this particular writ against the Second Court Martial.

The issue, whether Fonseka is subjected to Military Law is before the Supreme Court, in a fundamental rights application filed by Fonseka. Hence, the Court of Appeal should not decide on that, before the Supreme Court decides on the same.

Sarath Fonseka, as the Commander was an officer of the Army. Officers come within the Regular Force and therefore within the Military Law. The Regular Force of the Army consists of officers and soldiers. There cannot be a third category, in the membership of the Army, S. L. Gunesekera said.

The Army Commander has not been granted immunity from the Military Law, by the Constitution of Sri Lanka, counsel Gunesekera said.

The Commander of the Army cannot abuse the President. It will be a Military offence. A normal civilian may do that, but not a Military officer, he explained. The Commander of the Army and the Chief of Defence Staff is subjected to Military Law. Fonseka was subjected to Military Law up to November 14, 2009, when his retirement from the commission of the Army was accepted, Fonseka is now retired. Hence he could be Court Martialled by a Major General, Counsel Gunesekera said. At present Fonseka is not the Army Commander. He is a civilian. He could be summoned by a tribunal comprising Major Generals, although Major Generals are below in rank to the Commander.

Fonseka, while in office as Commander, awarded a contract that benefited his son-in-law, Counsel Gunesekera said. By hiding the issue the offence becomes disgraceful conduct. The time bar objection does not apply to the offence of disgraceful conduct, Counsel said.

Section 38/1, of Court Martial Regulations says that the accused has no right to object to the Judge Advocate, at the Court Martial Tribunal proceedings, counsel said. W. J. S. Fernando is functioning in the Court Martial, as a Rear Admiral of the Navy, and not as an officer of the Attorney General’s Department. W. J. S. Fernando is made the Judge Advocate as he is an Admiral of the Sri Lanka Navy. It is not an issue of the Judge Advocate being the same as the prosecutor who is the attorney General. Fernando has been a Rear Admiral for sometime, prior to his appointment to the Court Martial against Fonseka.

Major General Pieris was appointed vice Chancellor of the Kotalawala Defence Academy. Fonseka could not allege that Pieris was untrustworthy, and was demoted to the common stream of the Army, Counsel Gunesekera explained.

Fonseka in his petition had alleged that Major General Hathurusinghe had terrorist links. But this allegation is baseless, counsel said. Hathurusinghe had been sent for a superior training course to China, he added.

There was no credible evidence of the alleged terrorist links, Counsel said adding that Major General Dawulugala could not be accused of bias against Fonseka merely because he is said to have a professional friendship with the Secretary Defence, Counsel said.

Fonseka is alleged to have committed offences at the tail end of his career. This has nothing to do with his decision to contest the election, Counsel said.

Sanjeewa Jayewardene who appeared for the fourth respondent Dawulugala, associated with the submission of S. L. Gunesekera. Jayewardene said that the President appointed Fonseka as the CDS on July 13, 2009. Persons appointed as CDS continue to be in the regular force of the Army. Fonseka relinquished his post as Commander on July 14, 2009 while being CDS, he could hold the rank of General of the Army.

When Fonseka applied to the Supreme Court, claiming that he did not have adequate security as the CDS, he had said that he was an officer of the regular force, Counsel Jayewardene said.

Fonseka did not raise at the Court Martial, the animosity he had alleged the present Army Commander had towards him. He alleged animosity only in the Writ application.

Counsel said that Major General Hathurusinghe had been a prime target of the LTTE. Fonseka had not told that to the Court of Appeal in the Writ application.

S.L. Gunesekera appeared for Majors General, Pieris and Hathrusinghe, members of the Tribunal, and made second and third respondents in the Writ application.

Sanjeewa Jayewardene appeared for the fourth respondent Major General Dawulugala, a member of the Court Martial tribunal. The Deputy Solicitor General Sanjay Rajaratnam appeared with Senior State Counsel Nerin Pulle and State Counsel Shamindra Wickrama for the first respondent, the present Commander of the Army.

The Bench comprised Justices Sathya Hettige (President), Rohini Marasinghe and Sarath de Abrew.

Romesh de Silva PC appeared for the petitioner Sarath Fonseka.

Proceedings resume on Friday.

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