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Full text of petition filed in courts by Sarath Fonseka against Gotabhaya Rajapaksa

PETITION

In The Supreme Court Of The Democratic Socialist Republic Of Sri Lanka - S.C.F.R./ 2009

In the matters of an application under Article 126 of the Constitution.

Gardihewa Sarath Chandralal Fonseka,
Army Commander’s House,
Baudhaloka Mawatha,
Colombo 7

Petitioner

Vs.

1.Gotabhaya Rajapaksa,
Secretary,
Ministry of Defence,
Colombo 1

2.The Commander,
Sri Lanka Army,
Army Headquarters,
Colombo 1

3.The Inspector General of Police,
Police Headquarters,
Colombo 1

4.The Acting Chief of Defence Staff,
Office of Chief of Defence Staff,
Colombo 1

5.The Secretary to His Excellency the President of Sri Lanka,
Presidential Secretariat,
Colombo 1

6.Hon. The Attorney General,
Attorney General’s Department,
Hulftsdorp,
Colombo 12

RESPONDENTS

On this 24th day of November 2009.
To Their Lordships the Chief Justice and the other Justices of the Supreme Court of the Democratic Socialist Republic of Sri Lanka.

The petition of the above named Petitioner, appearing by his registered attorneys-at-law ………………………………, respectfully states as follows :

Outline Of The Case

This application pertains to the drastic reduction of the personal security provided to the Petitioner, and the failure to provide the Petitioner with adequate personal security, and related matters.

Office

The Petitioner was enlisted to the Regular Force of the Sri Lanka Army, on 5th February 1970. He received his Commission as a Second Lieutenant on 1st June 1971, in terms of the Army Act. He was promoted repeatedly over the years, and eventually became the Commander of the Sri Lanka Army, with the rank of Lieutenant General, on 6th December 2005. He was promoted to the rank of General (four star) in the Sri Lanka Army, on 18th May 2009. He was thus the first serving officer of the Sri Lanka Army to attain that rank. The Petitioner served as Commander of the Sri Lanka Army for 3 years and 7 months. True photo copies of relevant documents are annexed hereto collectively marked P1, and are pleaded as part and parcel hereof.

On 15th July 2009, the Petitioner was appointed Chief of Defence Staff, in terms of the Chief of Defence Staff Act No. 35 of 2009. As provided in the said Act, the Petitioner had the rank of General, and remained an officer of the regular force of the Sri Lanka Army. True photo copies of relevant documents are annexed hereto collectively marked P2, and are pleaded as part and parcel hereof.

The Petitioner sought permission to terminate his services and to retire, by his letter dated 12th November 2009. The letter was addressed to his Excellency the President of Sri Lanka, and was forwarded through the Secretary to His Excellency. A true photo copy is annexed, marked P3, and is pleaded as part and parcel hereof.

Reasons for the said letter were set out in an Annex (with enclosures.) A true photo copy is annexed, marked P4, and is pleaded as part and parcel hereof.

His Excellency the President responded, through the Secretary to the President, by a letter dated 14th November 2009 of the said Secretary. This letter stated that the Petitioner was retired from the Sri Lanka Army with immediate effect. The letter also stated that the Petitioner would consequently cease to hold office as Chief of Defence Staff with immediate effect. A true photo copy is annexed, marked P5, and is pleaded as part and parcel hereof.

As Commander of the Sri Lanka Army, the Petitioner gave direction to the war against the Liberation Tigers of Tamil Eelam. Therefore, the Petitioner was under constant danger of attack from the said organization. The Petitioner was subjected to an attempted assassination by a suicide bomber, on 25th April 2006. The Petitioner was severely wounded. The Petitioner had to undergo several surgical operations, and his life was saved. Even though the Petitioner had not fully recovered, he returned to active duty as Commander, and continued to direct the war, until its conclusion as a conventional war in May 2009.

Nevertheless, the Liberation Tigers of Tamil Eelam has continued to be active abroad, and cadres of the said organization are engaged in clandestine operations within Sri Lanka. This has been revealed by investigations being carried out by the relevant authorities in Sri Lanka and abroad, and by intelligence reports received by the authorities in Sri Lanka.

The Petitioner states that the Petitioner is unwilling to declare information/contents of discussions that took place at the National Security Council meetings, but suffice it to say that the real threat against the life of the Petitioner has not subsided.

The Petitioner pleads that the last Security Council meeting he attended was on the 11th of November 2009.

Therefore, the Petitioner has been, and remains, under a high level of danger of attack by the said organization. This danger is likely to continue for the rest of his life.

In these circumstances, the Petitioner was provided with extensive personal security by the Sri Lanka Army, during his period as the Commander of the Army and during his period as the Chief of Defence Staff.

In his said letter dated 12th November 2009, the Petitioner described how the retired Chief of Army Staff of India, General A.S. Vaidya, was assassinated two years after he had retired.

In his said letter, the Petitioner stated that he now entrusted his personal security to His Excellency the President, and requested adequate personal security for the rest of the Petitioner’s life.

Responding to this, the above mentioned letter of the Secretary to His Excellency the President assured that the Petitioner would be provided with adequate security commensurate with the level of threat.

The Petitioner states that the State provided him with adequate security, until the news media alleged/speculated that he would be a Presidential Candidate opposed to His Excellency the President.

There has now been a drastic reduction in the personal security provided to the Petitioner. The Petitioner is now provided with only 62 security personnel and 3 vehicles, for his personal security. (The Petitioner was initially given only 25 infantry soldiers, and this was increased only after the Petitioner made a request.)

The Petitioner pleads that the bullet proof vehicle presently provided has done almost 50,000 kilo meters, has run its life, and the two jeeps are also old.

This may be contrasted with the following :

The recently retired Commander of the Navy, Vice Admiral W.K.J. Karannagoda, has been provided 120 security personnel and 11 escort vehicles and one bullet proof vehicle, for his personal security.

Mrs. Suganthi Kadirgamar, the widow of the late Foreign Minister Lakshman Kadirgamar, is presently provided with approximately 31 security personnel, including commandos.

His Excellency the President is presently provided with about 2,000 security personnel.

The Secretary to the Ministry of Defence is presently provided with about 500 security personnel and about 25 vehicles.

The present Commander of the Army is provided with about 600 security personnel, including 40 commandos, and about 25 vehicles.

Basil Rajapaksa, Member of Parliament, is provided with about 250 security personnel.
By his letter dated 16th November 2009 to the Secretary to His Excellency the President, the Petitioner made a detailed request for increased security. A true photo copy is annexed marked P6 and is pleaded as part and parcel hereof.

The Secretary to His Excellency the President replied by a letter dated 18th November 2009, permitting 10 commandos, 2 non-commissioned officers and 50 soldiers from the Sinha Regiment, one bullet proof vehicle, 2 security Land Rovers, and 4 drivers. (These were much less than those requested by the Petitioner.) A true photo copy is annexed marked P7 and is pleaded as part and parcel hereof.

In recent times, commanders of the armed forces have been permitted to remain in their official quarters for several months after retirement. (Thus, the former Commander of the Navy is still occupying his quarters, six months after retirement.) However, the said letter requires the Petitioner to vacate his official quarters with effect from 22nd November 2009.

These events are happening notwithstanding the official proposal to provide the retired commanders of the armed forces with quarters and security for the rest of their lives. Honourable the Prime Minister, speaking recently in Parliament referred to this, and stated that the matter was now before Honourable the Attorney General for legal formulation.

(The permission of Your Lordships’ Court is respectfully sought to tender the relevant portion of the Hansard.)

By retaining the deed to the land gifted to the Petitioner by the State, the 1st respondent is acting arbitrarily and capriciously, and in breach of the Petitioner’s fundamental right to equality as enshrined in Article 12 [1] of the Constitution of Sri Lanka.

In the circumstances of the grave danger in which the Petitioner is now placed, it is lawful and proper and necessary that an order be made, directing the provision of adequate personal security to the Petitioner, for the rest of his life.

In the circumstances of the grave danger in which the Petitioner is now placed, it is lawful and proper and necessary that an order be made, directing the provision of adequate and secure quarters to the Petitioner, for the rest of his life.

In the circumstances afore said, it is necessary that an interim order be made directing the provision of adequate personal security to the Petitioner, until the determination of these proceedings.

In the circumstances afore said, the provision of adequate security to the Petitioner, would require at least 600 security personnel and at least 10 escort vehicles at least two bullet proof vehicles. It is also necessary that the security personnel should have been investigated and given security clearance.

In the circumstances, it is necessary that the same security cleared personnel who were assigned to protect the Petitioner be restored to him, to continue in that assignment for the immediate future. Details of these security requirements are set out in a separate note annexed hereto marked P8 and pleaded as a part and parcel hereof.

In the circumstances afore said, it is necessary that an interim order be made directing the provision of adequate and secure quarters to the Petitioner, until the determination of these proceedings.

In this application, specific relief is sought against the 1st respondent and the State. The 2nd to 5th respondents have been made parties hereto for the purpose of giving them notice, and no relief is sought against them. The 6th respondent has been made a party, to represent the State.

The Petitioner has not previously invoked the jurisdiction or Your Lordships’ Court in respect of this matter.

The permission of Your Lordships’ Court is respectfully sought to tender further documents when they are obtained.

Wherefore the Petitioner humbly prays:

For leave to proceed with this application;

For a declaration that the 1st respondent and the State have acted arbitrarily and capriciously, and in breach of the Petitioner’s fundamental right to equality as enshrined in Article 12 [1] of the Constitution of Sri Lanka, by reducing the Petitioner’s personal security, and by failing to provide the Petitioner with adequate personal security;

For a declaration that the 1st respondent and the State have acted arbitrarily and capriciously, and in breach of the Petitioner’s fundamental right to equality as enshrined in Article 12 [1] of the Constitution of Sri Lanka, by failing to provide the Petitioner with adequate and secure quarters;

For a declaration that the 1st respondent and the State have acted arbitrarily and capriciously, and in breach of the Petitioner’s fundamental right to equality as enshrined in Article 12 [1] of the Constitution of Sri Lanka, by retaining the deed to the land gifted to the Petitioner by the State;

For an order directing 1st respondent and his successors in office, and the State, to provide the Petitioner with adequate personal security (consisting of at least 600 security personnel and at least ten escort vehicles and at least two bullet proof vehicles) and for such other period as the Court shall deem fit.

For an order directing 1st respondent and his successors in office, and the State, to provide the Petitioner with adequate and secure quarters for the rest of his life;

For an order directing 1st respondent and his successors in office, and the State, to hand over to the Petitioner the deed to the land gifted to the Petitioner by the State;

For an interim order directing 1st respondent and his successors in office, and the State, to provide the Petitioner with adequate personal security (consisting of the same 600 security personnel last provided to him, and at least ten escort vehicles and at least two bullet proof vehicles) until the determination of these proceedings;

For an interim order directing 1st respondent and his successors in office, and the State, to provide the Petitioner with adequate and secure quarters until the determination of these proceedings;

For costs; and

For such other and further relief as to Your Lordships’ Court shall seem meet.
……………………………….
Registered Attorneys-at-Law
of Petitioner

DOCUMENTS ANNEXED
Marked “P”

At the conclusion of the war, the Commanders of the three forces were each gifted with a land by the State, and the respective deeds were executed. However, the Secretary to the Ministry of Defence has retained the deed No. 532 / 2009, of the land gifted to the Petitioner. (The permission of Your Lordships’ court is respectfully sought to tender the relevant documents.)

There has been much speculation in the news media about the possibility of the Petitioner entering the field of politics.

In fact, the Petitioner intends to engage in politics.

In the circumstances, the Petitioner will have to participate frequently in public meetings, perhaps several times a day, and to engage in a considerable amount of travelling to various parts of the country.

Therefore, the Petitioner will face increased danger, and will require significantly enhanced personal security.

There was another senior army officer who entered politics after retirement. That was General Janaka Perera. He was not provided with adequate personal security. While he was at a political meeting, he was assassinated by a suicide bomber, and a number of people died with him.

The Petitioner states that all retiring Army Commanders from the time of General D.S. Attygalle were given promotion on retirement, but the Petitioner was not given such promotion.

The 1st respondent (Secretary to the Ministry of Defence) and the State are responsible for the provision of personal security to the Petitioner. The 1st respondent is particularly responsible for providing personal security to civilians.

The Petitioner pleads that the aforementioned acts took place because of the belief that the Petitioner would be a presidential candidate.

The Petitioner pleads that the 1st respondent acted without bona fides when he decided/directed that the Petitioner be not given adequate security and reduced the Petitioner’s security, because of the belief that the Petitioner would be a presidential candidate.

In the circumstances the Petitioner pleads that:

the Petitioner is entitled to adequate security that the Petitioner is not provided with adequate security

the decision not to provide the Petitioner with adequate security has been taken malafide for the reasons inter alia that the Petitioner would be a presidential candidate and/or opposing the president politically the security necessary is setout in the annexure P8 (marked below.)

By drastically reducing the personal security provided to the Petitioner, and by failing to provide adequate personal security to the Petitioner, the 1st respondent and the State are acting arbitrarily and capriciously, and in breach of the Petitioner’s fundamental right to equality as enshrined in Article 12 [1] of the Constitution of Sri Lanka.

By failing to provide the Petitioner with adequate and secure quarters, the 1st respondent and the State are acting arbitrarily and capriciously, and in breach of the Petitioner’s fundamental right to equality as enshrined in Article 12 [1] of the Constitution of Sri Lanka.

1 Comments

Thus far MR and Co was able to use and discard people as well as harrass and subdue them when done with. With SF they seem to have met their match.

Posted by: SriLankan | November 29, 2009 10:06 PM

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