Colombo: Detained former Sri Lankan Army chief Gen Sarath Fonseka has moved the country's apex court, saying he can't be tried by a military court six months after his retirement.
His plea which came up before a Court of Appeal yesterday could not be taken up as one of the judges of the Court withdrew from the panel citing personal reasons.
The Lankan was hero's new move to challenge his detention came even as the government made it clear that it did not have a four star general to head the court martial panel trying him of various charges.
"General Fonseka is a four star general. We don't have an officer who is of the same rank or of a higher rank. There are provisions in the army act to appoint officers of a lower rank", senior cabinet minister Dullas Alahapperuma said.
Alahapperuma said even when Fonseka as the Army commander initiated court martial proceedings against Major General Parakrama Pannipitiya in 2008, the situation was no different and the former Army chief had to appoint officers who were junior to the accused officer.
Pannipitiya was the Sri Lanka Army's Eastern Commanding Officer responsible for capturing Thoppigala and other areas in 2007.
The Battle of Thoppigala was fought between Sri Lankan security forces and the LTTE for the control of the tiger dominated Thoppigala peak in Eastern Batticaloa.
Pannipitiya faced charges including misuse of power and resources and disciplinary flaws.
Meanwhile, Fonseka, in a writ application filed in the Court of Appeal, had complained that he could not be produced before a court martial under the Army Act in March 2010 as it was beyond six months after retirement.
He had retired from the Sri Lanka Army in July 2009.
Fonseka in the Habeas Corpus application filed on his behalf had requested the Court of Appeal to quash the decision of the Sri Lanka Army Authorities to court martial him.
Fonseka said that Majors General HL Weeratunga, ARL Wijetunga and DRAB Jayatillake, all of the Sri Lanka Army, had no jurisdiction to hear the court martial against him and make any decision on the issue. The former Army chief appealed to the Court to quash the decision of the present Army Commander (army chief) to hold a court martial against him.
The writ application requested the court to quash the decision of the present Army Commander, Lt General Jagath Jayasuriya, to arrest Fonseka under the Military Laws on February 08, 2010 and to hold Fonseka in continuous detention.
The petition pleaded the Court to order the present Army Commander to release Fonseka from detention custody, the 'Island Newspaper' reported.
The petitioner also wanted the court to prohibit Rear Admiral WJS Fernando (Deputy Solicitor General of the Attorney General's Department) from functioning as the Judge
Advocate in the Court Martial first convened on March 16, 2010.
Fonseka objected to the Court Martial bench alleging that Majors General Wijetunga and Jayatillake were his subordinates and he had pulled them up on earlier occasion while serving as the Army chief.
Hence, the bench could be biased against him (Fonseka).
The petition also said that the Judge Advocate has been summoned from the Attorney General's Departments when there are Judge Advocates available in the Army.
The first respondent is General Jagath Jayasuriya the Present Commander of the Sri Lanka Army, the newspaper said.
PTI
First Published: Saturday, March 20, 2010, 16:07