By S.S. Selvanayagam
The Court of Appeal yesterday issued notice on the three-member General Court Martial GCM) and other respondents cited in the Writ Application filed by former Army Commander Sarath Fonseka challenging the first General Court Martial verdict ordering him to be cashiered from the army. The Bench comprising Justices Rohini Marasinghe and Upali Abeyratne issued notice returnable on December 17 on the submission made by retired General Fonseka’s Counsel Romesh de Silva PC. Notice was issued on Army Commander Jagath Jayasuriya, the Court Martial panel comprising Maj. Gen. H.L. Weeratunga, Maj. Gen. A.L.R. Wijetunga, Maj. Gen. D.R.A.B. Jayatilake, Solicitor General (Rear Admiral) W.J.S. Fernando and the Attorney General.
The Defence Counsel asked that five grounds submitted by General Fonseka before Court be considered – that notices had already been issued on the respondents in respect of the writ application challenging the Court Martial proceedings against him and his continuous military custody; that he was not subject to military law. Any person who is no more in the service of the army cannot be tried before the court martial. He cannot be cashiered from the army. If he is not in the army, he cannot be charged; that even if he is subjected to army law, under the law of proportionality, the sentence to be cashiered imposed by the said Court Martial cannot stand. He could be subject to some other sentence; Are the charges traitorous/disloyal words as well as neglect to obey garrison or other orders. What is the sin? Even if it is an offence, he could not be thrown out from the Rank of General; sentence has only been confirmed but the conviction has not been confirmed by the competent authority.
Presiding Judge Ms Rohini Marasinghe said the conviction is interim and it had to be confirmed by the competent authority and that it would become valid only after it is confirmed.
Romesh de Silva PC with Riad Ameen and Eraj de Silva instructed by Paul Ratnayake Associates appeared for General Fonseka. Deputy Solicitor General Sanjay Rajaratnam with Senior State Counsel Nerin Pulle appeared for the Attorney General.