'Court of Appeal placed on determining'

Sarath Malalasekera

Court of Appeal Judge Justice Eric Basnayake dismissing Inlimine an application by G Sarath C Fonseka recently stated that this is a clear instance of this Court having been placed under the daunting task of determining, as it happens frequently, not to look at the merits of the petitioner's case, for which eventually he has to blame himself.

No doubt by reason of the decision reached in this application, the petitioner has missed a perfect opportunity to involve the Court in the interpretation of the law on the two issues referred to earlier, as there are no direct authorities on those points.

Petitioner G Sarath C Fonseka has cited LT. Gen. J Jayasuriya and five others as respondents.

Justice Basnayake in his judgment, agreed by Justice AWA Salam and Justice Upaly Abeyratne, stated however, in passing it may not be inappropriate to have it placed on record that the application of the petitioner is dismissed Inlimine and therefore this judgment is entered NUNC PRO TUNC.

The judgment also stated, the petitioner filed this application seeking a writ of certiorari inter alia to quash the decision of the 2nd to 4th respondents to convict (conviction on September 17, 2010) the petitioner in Court Martial II and to quash the sentence of 30 months imprisonment. When this case was supported, several preliminary objections were raised on behalf of the 1st, 5th and 6th respondents. After an inquiry this court (consisting of two Judges at the time) pronounced an order on December 15, 2010 by which the Court postponed the answering of the preliminary objections to the end of the case.

At that time, objections were not filed for the respondents. Objections and counter objections have been filed. Thereafter submissions were made for the petitioner and the respondents and the President's Counsel for the petitioner made submissions in reply. Written submissions too were filed. "Having considered all the submissions, I am of the view that this application for certiorari should be dismissed Inlimine. Hence, there is no necessity to answer to the preliminary objections," Justice Basnayake stated in his judgment.

According to the petition filed on October 13, 2010, the petitioner is the ex-Army Commander. The first respondent is the present Army Commander, the 2 to 4 respondents are the President and the members of the Court Martial II. The 5th respondent was the Judge Advocate.