Sarath Fonseka’s appeal against the sentence of the court martial in the Hycorp case
Posted on December 17th, 2011
Extract from Political Watch Column Courtesy The IslandƒÆ’-¡ƒ”š‚ News Paper 18th December 2011
ƒÆ’-¡ƒ”š‚ Let us look at this unedifying and highly tragic spectacle of a war hero tying himself up in knots with every utterance he makes! Last Friday, a three member panel of the Court of Appeal rejected his petitionƒÆ’-¡ƒ”š‚ to have the sentence of the court martial in the Hycorp case quashed (This relates to the first jail sentence that he is still serving. The other sentence in the white flag case will begin only when the current sentence ends.) When reading the judgement delivered last Friday, one can get a pretty good idea why the Inter-Parliamentary Union has said nothing about the Fonseka case 18 months after it was first brought to their notice.
The court martial that sentenced Fonseka comprised of Maj Gen M.P.Peiris, (Chairman) Maj Gen S.W.L.Daulagala, and Maj Gen M.Hathurusinghe. with Rear Admiral W.W.J.S.Fernando as the Judge-Advocate. Fonseka had filed a petition in the Court of Appeal citing all members of the court martial and the Judge Advocate as well as the commander of the army Jagath Jayasuriya as respondents.
The court martial was about four tenders called by the army in 2007 and 2008 where Fonseka was accused of sitting on tender boards that awarded tenders to his son in law Dhanuna TillekeratneƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s firm Hycorp International. The defence counsel had argued that not revealing the relationship between Fonseka and Tillekeratne did not constitute an offense and that there was no obligation on FonsekaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s part to disassociate himself from the tender board or even disclose the relationship because the tender procedures were guidelines only and not law.
They had also argued that there was no evidence to prove that Fonseka had influenced the tender board, and that there was no allegation that the tender had been made wrongly and no allegation that anybody gained unlawfully and that therefore the whole matter was ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”technicalƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢. The defence had also argued that the Army Act did not allow the prosecution and punishment of those who cease to be subject to military law, six months after the offence was committed and that the said offences were committed in 2007 and 2008 while the charges were brought in 2010 and therefore action against Fonseka was subject to a time bar.
The defence had also argued that even if Fonseka had chaired the tender board knowing that his son in law was involved, that would at most be ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”unethicalƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ and that an offense of that nature did not warrant such a harsh sentence. A representative from the Inter-Parliamentary Union came to Sri Lanka some months ago to observe FonsekaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s court cases and if this is what he heard in courts, no wonder he fled and we have heard nothing from the IPU observer thereafter!
The centerpiece of FonsekaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s petition however was the allegation of bias on the part of the members of the court martial against Fonseka. The general allegation was that all the members of the court martial were biased against him because Fonseka had shifted them from the ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”command streamƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ of the army to the ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”common streamƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ when he was the commander.
There were allegations against the members of the court martial which had a quintessential Fonseka touch to it.ƒÆ’-¡ƒ”š‚ He alleged that Maj Gen Mahinda HathurusingheƒÆ’-¡ƒ”š‚ who was a member of the court martial of being biased because he had been bribed and was in the pay of the LTTE and that Fonseka had taken action against him when he was army commander and was to take further action when he was removed from the position of army commander.
What was said in HathurusingheƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s defence by his counsel was that contrary to being in the pay of the LTTE, Hathurusinghe had been under direct threat from the LTTE and that an army Major named Anuruddha Perera had been tried, convicted and sentenced to death for providing intelligence to the LTTE to kill Hathurusinghe when he was the Overall Operations Commander Colombo. The allegations of bias against the other two members of the court martial were also countered though not as spectacularly as in the case of Hathurusinghe. What the other two members of the court martial had said was that they had not been demoted from the command stream to the common stream as Fonseka had alleged but were very much a part of the command stream because of the positions they held.
Besides, the court found that the allegations made by Fonseka against Hathurusinghe were founded on nothing but hearsay. Fonseka had claimed that the director of the CID had told him that an LTTE suspect in custody had told him that Hathurusinghe was in the pay of the LTTE!
This is the second time in as many months where FonsekaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s predilection to repeat gossip got him landed in trouble. Readers will remember that even the white flag case went against him because the High Court decided that Fonseka had gone around repeating allegations that he claimed to have heard from others, but which he knew were to be false and had said so himself! As we pointed out in this column, he was convicted in the white flag case on nothing more than a gossip mongering charge.
In this latest case, the Appeal CourtƒÆ’-¡ƒ”š‚ found that even though Fonseka says that Hathurusinghe was in league with the LTTE, the latter was in the Philippines following a course and if he himself had attached any credence to the allegations he would have recalled the latter to take further action. After the members of the court martial who were respondents in the petition made their representations and alleged that Fonseka was suppressing material facts from the court and making misrepresentations, Fonseka refrained from responding to what the members of the court martial said in their defence on the allegation of bias.
When a judge had asked FonsekaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s counsel what he has to say about the allegation of suppression of material facts and misrepresentation, the lawyerƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s answer had been that one is required to disclose everything only in an ex-parte application and that it does not apply in the case of inter-parte applications!
It appeared that FonsekaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s lawyers were running round in circles trying to rescue their client. You canƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t really blame the lawyers for what happened. In desperation, the lawyers had tried to salvage the case by withdrawing the allegation of bias, which were really based only on FonsekaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s fulminations which he has the unfortunate habit of passing off as facts.ƒÆ’-¡ƒ”š‚ It was however too late by that time. The court dismissed the application on the basis of the suppression of facts and misrepresentation when alleging bias on the part of the members of the court martial.
Fonseka is obviously the lawyerƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s ultimate nightmare. You canƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t really base court cases on his fulminations. Members of the UNP and the JVP who go to see Fonseka instead of trying to humour him, should tell him point blank that he doesnƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t have a leg to stand on and that it is best if he stops making his highly abrasive comments to TV cameras every time he comes out of jail and to try and come to some accommodation with the government. At present Fonseka seems to be living on the satisfaction that he gets by taking pot shots at the Rajapaksas once a week or so and he obviously rehearses the pithy anti-government snippets he utters to the TV cameras. But these are not conducive to his ever being given a pardon.
Fonseka may have derived some satisfaction by saying that Mahinda Hathurusinghe was in the pay of the LTTE but that is what finally messed up his application for relief with the courts even observing that no deception should be practiced on courts and further that a petitioner who seeks relief by way of a writ which is an extraordinary remedy must in fairness to the court bare every material fact so that the discretion of the court is not wrongfully invoked.. When reading the judgement it becomes clear that this was not a legal challenge. It was more like a court room fiasco.
December 17th, 2011 at 11:16 pm
“What was said in Hathurusinghe’s defence by his counsel was that contrary to being in the pay of the LTTE, Hathurusinghe had been under direct threat from the LTTE and that an army Major named Anuruddha Perera had been tried, convicted and sentenced to death for providing intelligence to the LTTE to kill Hathurusinghe when he was the Overall Operations Commander Colombo.”
“Besides, the court found that the allegations made by Fonseka against Hathurusinghe were founded on nothing but hearsay. Fonseka had claimed that the director of the CID had told him that an LTTE suspect in custody had told him that Hathurusinghe was in the pay of the LTTE!”
Trust Fonseka to spit on and sell out our great soldiers like he did to Shavendra Silva.
Maj Gen Mahinda Hathurusinghe was the guardian of Colombo who cleaned Colombo of all infiltration groups, LTTE sleepers cells and “intelligence” cadres that entangled themselves within the city and its suburbs in their hundreds during the CFA period of Ranil. He ensured attacks within Colombo were at a near zero.
The sickening lack of honesty and integrity and pure selfishness of the Fonseka family is stomach churning. The treachery of this man and his family (with daughter Aspara addressing LTTE rallies in Los Angeles and Toronto) is truly unbelievable. Thanks to his selfishness and greed coupled to a foul mouth the Army and MoD which would have been considered prestigious institutions unquestionably respected as the best in the world was single-handedly destroyed thanks to his venom. There was nothing the enemies of this nation could do to defame our Army that would be taken seriously or “stick” until the moment Fonseka opened his foul mouth and gave them the impetus and revitalising energy to do so. And that is just heart breaking.
Once again the short sightedness, selfishness and greed of the Fonseka family shines through as evident from the lies he keeps spewing. The evidence continues to mount that this man had little to do with the war effort, its strategies, plans and contingency plans that eventually led to victory –he is no military genius. How else could such a “genius” who “did everything by themselves” when apparently running a one man Army (as boasted by him, his Marxist/JVP backers and other political opportunists) so easily spit on and take apart his own “great” work. The answer is simple: he had no part in it so he does not understand the complexities and hard work and thought involved. Hence why he does not care and has no problem desecrating the Army and its achievements.
December 17th, 2011 at 11:18 pm
His sickening, baseless mud slinging against Maj Gen Mahinda Hathurusinghe is also more evidence of his selfishness, personal glory hunting and deep jealousy over the achievement of others which he tries to pass off as his own (such as the capturing of the Eastern province –he court marshalled and removed the Army commanders and even the DIG of the STF who ran the operations in securing the East then claimed all credit for himself).
Fonseka has evidently not learnt a single lesson from the white flags saga and continues to undermine his own position through short sighted, selfish, renege driven desires egged on by an ego. He is a man of low intelligence with no morals who got trust into position of fame and power following the wars end (thanks to the work, intelligence and dedication of others) and as a result as made a mess because he is just too dumb to see beyond himself.
Fonseka soiling himself is not a problem, it is his revenge driven ugliness that has made him decide to take the nation to hell with him. Thus in turn exposing what a foul uncaring man he truly is that deserves nothing. Even prison is too good for him.
December 18th, 2011 at 4:36 am
It is sad to read all these things about disunity among the Sinhalese.
I hope this comment will not be deleted.
Mr Sarath Fonseka did what SWRD did three years after the independence in 1948. The force behind these two splits are the same.
Just after the conclusion of the war after a meeting among mainly of Tamil yerrorists, a sad Tamil professional aske one of the most leading Tamil terrorist leader what are we going to do now. This leader said “wait till the dust settle” and I was wondering what he meant.
This guy’s fathercwas a leading Tamil politician of the days gone by and now I beleive his father may have been behind the SWRD leaving.
There is another observation I have made about SF’s plight locally and Internationally. What happened to his ardent suppoters, mainly Tamil terrorists and the JVP?
December 18th, 2011 at 12:30 pm
It is so pathetic to watch the drama that the UNP and the affiliated rest (including the legal brains) are staging to get Mr. Fonseka released, without follwing the procedures laid down. Is’nt it that the very person aggrieved and his immediate family who should make a formal appeal to the HE the President? Instead, what are they doing or forced to do? Do they think that in conducting protest rallys, signing petitions to outside world govenments, challenging in courts outside the perview of the Sri Lanka Government, enlisting outside sources for negotiations with the Government etc. are going to be of any use? They are living in a dream world OR perhaps my guess is that this man’s case is used to gain their own political gains.
What happened to this man was simple. In the field of Politics there are “Vampires” who are roaming around looking for people who could be made a prey to suck the blood and quench their thirst. They are very capable of indentifying at least one big weakness in a man and they start their task. SF was overflowing with a massive sense of “pride”, “ego” and “ruthlessness” and the vampires started working and catered to these needs. Their main aim was to suck his blood of these qualities and achieve their goals. SF never ever doubted their intentions, because he was blinded with his personal qualities, and he fell a prey. This happens all the time in the Political field and even now it is happening.
This was revealed in an interview that Tilvin Silva of JVP gave to YaTV on 3rd February 2010. He was asked by the inteviewer at what point of time JVP established relations with SF. He said, when the Govt. decided to recruite 100,000 persons to the armed forces, they made contact with SF. That evidence would have been enough to assess the gravity of the situation that was developing in the country. The next person was Mangala Samaraweera who brokered a marriage between Ranil and SF. All that was to destry Mahinda Rajapaksa.
So what can SF do now? He should meditate (that also these vampires want allow him to do, because of their frequest visits to the jail) and realize his own weakness and faults and go about the correct procedure in getting out of this mess. I appeal to these vampires to allow him and his family to embark on this mission and seek redress from the authorities concerned. And that is the only way.