Counsel tells court :

Fonseka subject to military law

Wasantha RAMANAYAKA

Although petitioner General Fonseka retired as the Commander of the Army he continued to be a member of the Army until his retirement from the office of the Chief of Defence Staff, Senior Counsel S.L. Gunasekera submitted the Court of Appeal, yesterday.

Making his submissions opposing the issuing notice in the second application by the petitioner challenging the second Military Tribunal to try him of an offence committed while he was holding the office of the Army Commander, Counsel Gunasekera told court that letter of retirement from the Army was a deliberate falsehood uttered by the petitioner under oaths.

The Bench comprised Justice Sathya Hettige PC, Justice Sarath Abrew and Justice Rohini Marasinghe.

The counsel appearing for the two member of the Military Tribunal Major General M.P.Pieris, Major General W.W.L. Daulugala submitted that what the petitioner asked was to retire from the office of the Commander of the Army. The counsel submitted that there is distinction between the rank and the post in the Army. The Army Commander is one of the posts of the Army.

The counsel argued although the petitioner retired from the post of Commander of the Army in July 2009, he continued to be a commissioned officer in the Army thus subject to the Military Law.

He submitted that the reliefs prayed in the two cases filed by the petitioner are identical and the court refused notice in respect of the fifth respondent functioning as the Judge Advocate.

He said that the obligations of the petitioner to bring these to the attention of the court.

In the first application the court did not issue notice in respect of the writ of prohibition against the fifth respondent Judge Advocate.

The petitioner’s counsel was guilty of not disclosing fully the material facts of the case to the court.

The counsel also submitted that the issue whether or not the petitioner subject to the Military law could not be decided by this court as the issue is before the Supreme Court.

The counsel submitted that the petitioner is subject to military law. In terms of the Army Act all officers and soldiers are subject to the Military Law.

There are no any other category of persons who are neither soldiers nor officer as argued by the petitioner. The members of the army consists of the officers and soldiers.

The fact that the President could appoint any person fit proper to be the Commander of the Army would not mean that he would not be subject to the Military Law.

He also submitted that if the Commander of the Army has immunity it should be expressly conferred not by the implication.

He submitted that there are instances where the civil law could not try certain offences such as drunkardness and insubordination. They could only be tried under the Military Law. If the Army Commander could not be tried under the Military Law, he could not be tried for these offences, he said.

He submitted that until the petitioner’s retirement on November , 2009 he was subject to the Military Law.

The Senior Counsel submitted that when the petitioner was arrested he was a civilian and as a result, the question that he should be arrested by a senior officers and tried by a tribunal consisting of senior officers, would not arise.

The Senior Counsel submitted that disgraceful conduct of the petitioner to hide the awarding of his tender to his son-in-law is an continuing offence as there could not be a time bar of six months would not be applicable.

He submitted that the petitioner could not object to the fifth respondent Judge Advocate. He submitted that the Attorney General is not the prosecutor in the Military Tribunal. The Counsel submitted that there was no requirement to give reasons to overrule the petitioners objections to the Military Tribunal.

Counsel Sanjeewa Jayawardane appearing for Major General Hathurusinghe submitted that he associate with all the submissions made by Senior Counsel S.L. Gunasekera.

He also submitted that in terms of Chief Defence Staff Act the petitioner continued to be a member of the Army thus subject to the Military Law.

He submitted that it is premature to decide on the issue by this court should let it run on its course.

President’s Counsel Romesh de Silva with Sugath Caldera appeared for the petitioner.

DSG Sanjay Rajaratnam with Senior State Counsel Nerin Pulle and State Counsel S. Wickremasinghe appeared for first, fifth and sixth respondents. Senior Counsel S.L. Gunasekera with Sanjeewa Jayawardane and Manoj Bandara appeared for the second and third respondents.

Sanjeewa Jayawardane with Manoj Bandara appeared for fourth respondent.

The case resumes tomorrow.