FR Application on behalf of Sarath Fonseka:

SC grants leave to proceed

Sarath MALALASEKERA and Wasantha RAMANAYAKE

The Supreme Court yesterday granted leave to proceed with the fundamental rights applications filed by Anoma Fonseka, wife of Sarath Fonseka and New Democratic Front Secretary Shamila Perera.

The Court granted leave to proceed in connection with alleged infringements of Articles 11, 12 (2), 13 (1) and 13 (2) of the Constitution. The petitioners reserved their rights to support for certain other right violations guaranteed under the Constitution. The Court also directed respondents to permit the first petitioner Anoma Fonseka to accompany an Attorney-at-Law and a Justice of Peace enabling Fonseka to sign legal documents.

The petitioners also reserved their rights to support for an interim order i.e. seeking the release of third petitioner Sarath Fonseka and an order to ensure his safety while in custody.

The Bench comprised Chief Justice Asoka de Silva and Justice Shiranee Tillekewardena and Justice Chandra Ekanayake.

At the outset, Deputy Solicitor General S. Rajaratnam appearing for the Attorney General gave an undertaking to Court that the third petitioner would not be relocated. He informed Court that the third petitioner Sarath Fonseka has been provided with medical facilities with Navy and Army medical officers assigned to his care.

He also submitted that his wife, first petitioner and President’s Counsel Wijedasa Rajapaksa had been allowed to visit Sarath Fonseka and provide him with lunch, dinner and medicine.

DSG Rajaratnam then raised a preliminary objections to the petition that in terms of Article 126 of the Constitution that petitioner Anoma Fonseka could not have filed the rights application on behalf of her husband and that the second petitioner Shamila Perera who filed through the rights application has not submitted an affidavit as required by Supreme Court Rules. The applications before court are not properly constituted, he added.

President’s Counsel Shibly Aziz, Senior Counsel for the petitioners citing several authorities submitted that Supreme Court had widened its fundamental rights jurisdiction beyond what is stated in the Constitution.

Justice Tillekewardena said that not to go mereley on words in the Constitution, but it should go by the spirit of the Constitution.

The court having heard the parties overruled the preliminary objections raised by the Deputy Solicitor General.

President’s Counsel Shibly Aziz emphasised that even after a lapse of five days the third petitioner has not been told the reasons for his arrest.

The President’s Counsel also submitted that his client’s arrest by Military Police was not warranted under the Army Act since he was not an officer contemplated in the Act. He submitted that the Commander is the disciplinary authority and would not be subjected to the Army Act. However, he submitted that his client could have been arrested under the country’s normal law. He submitted that this equally applies for retired Army Commanders as well.

The President’s Counsel submitted that the Chief of Defence Staff (CDS) is also not an officer in the regular service but a member of the Forces which has been differentiated from an officer of the regular forces in terms of the CDS Act.

DSG Rajaratnam objecting to the Leave to Proceed being granted submitted that the Army Commander as well as the CDS were both governed by the Military Law and submitted that the arrest and the subsequent detention are both legal.

The DSG submitted that even when he was appointed as the CDS he continued to be a member of the regular forces thus is subjected to the military law.

Answering the Chief Justice, DSG Rajaratnam said that the charges was read out to the third petitioner before he was arrested.

The court granted respondents four weeks to file objections.

Three petitioners Anoma Fonseka, Shamila Perera and Sarath Fonseka complained to court that the arrest and detention of Fonseka were illegal and was in violation of his fundamental rights.

The petitioners cited the Army Commander, the officer in charge of the security of the Colombo city, the head of the Military Police and the Attorney General as respondents.

The petitioners stated that Fonseka was a candidate at the recently concluded Presidential Election under the NDF nomination and was illegally arrested on February 8 evening by the Army Military Police and detained at the Naval headquarters. They stated that the detention has prevented Fonseka from taking his regular medicine.

President’s Counsel Shibly Aziz with President’s Counsel Wijedasa Rajapaksa, Upul Jayasuriya and Chrishmal Warnasuriya appeared for the petitioners.

DSG S. Rajaratnam with Senior State Counsel A. Nawaz and Senior State Counsel Nerin Pulle appeared for the Attorney General.

S.L. Gunasekera instructed by Sudath Perera Associates appeared for Major General Sumith Manawadu who is in charge of the Colombo Security.

Sanjeewa Jayawardane instructed by Sudath Perera Associates appeared for Chief of the Military Police.

The Court will consider granting interim relief on February 23.