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Maintainability of Fonseka Habeas Corpus application:
Order reserved for May 3
Wasantha RAMANAYAKE
The Court of Appeal yesterday reserved the orders on the
maintainability of a Certiorari and Habeas Corpus applications filed
respectively by General Sarath Fonseka and his wife Anoma Fonseka, for
May 3.
The court also directed the parties to file written submissions on or
before April 19.
Attorney General Mohan Peiris PC for the Army Commander raised
objections stating that both applications could not be maintained in the
Court of Appeal.
He argued that the Court Marshal could not be challenged in the court
since it had been convened by the President who has immunity under the
Article 35 of the Constitution.
The AG also argued that since the relief sought by the petitioners in
their Fundamental Rights case in the Supreme Court and the Certiorari
and Habeas Corpus applications are similar, they cannot maintain the two
applications in the Court of Appeal.
President’s Counsel Romesh de Silva argued that the Habeas Corpus and
Certiorari applications were not identical to the Rights case in the
Supreme Court. The Court has the jurisdiction to hear both cases.
He submitted that even if the petitioner could not establish a prima
facie case, still the court has no discretion but to issue notice.
Petitioner Fonseka challenged the Court Marshal convened to try him
and his detention. Anoma Fonseka filed Habeas Corpus application seeking
the Court to direct the respondents to produce General Fonseka in Court
to be dealt with according to Civil Law.
President’s Counsel Romesh de Silva with Sudath Caldera and Eraj de
Silva appeared for the petitioners. The petitioner cited Army Commander
Jagath Jayasuriya, three members of the military tribunal H. L.
Weeratunga, A. L. R. Wijetunga, D. R. A. B. Jayatilake, and Judge
Advocate W. J. S. Fernando and the Attorney General as respondents.
Attorney General Mohan Peiris, PC with Deputy Solicitor General S.
Rajaratnam, Senior State Counsel A. H. M. D. Nawaz and Nerin Pulle
appeared for the Army Commander.
Senior Counsel S. L. Goonesekera and Sanjeewa Jayawardane appeared
for the members of the military tribunal. The order was reserved for May
3.
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