The Supreme Court yesterday (17) dismissed the rights petition filed by the former Army Commander and former Chief of Defence Staff Sarath Fonseka in respect of his impugned security reduction and issue on his residence.
The Bench comprising Chief Justice Asoka de Silva, Justices N. G. Amaratunga and P. A. Ratnayake observed the Commissioner of Elections has the sole discretion to consider to provide adequate security under Article 104(B)4 of the Constitution.
Court also observed if the Court intervene at this stage, it would impede the powers of the Commissioner of Elections vested by the Constitution.
President s Counsel Romesh de Silva with A. P. Niles and Eraj de Silva instructed by Paul Ratnayake Associates appearing for Fonseka submitted that the threat to life of the Petitioner who is the retired Army Commander is apparent.
Senior Counsel further submitted there is no normal life in the country since Emergency Regulations are still existence and there is a threat from the LTTE to the former Army Commander. He contended that the Commissioner of Elections has no power to provide security but he can recommend to the President what type of security could be provided. He maintained that providing security is in the hand of the Supreme Court.
Chief Justice: The war is won. How can we provide security?
Counsel de Silva responded that the Petitioner, who is the Commander of the Army when the war was won is a potential target of the LTTE and that even the intelligence of the country believe that there are 2,000 remaining LTTE cadres in Sri Lanka and abroad.
Justice Amaratunga: You have come under Article 12 of the Constitution. You have not made out the case. The petitioner is a retired public officer. When he was in office, he could have assigned any number of persons to his security.
Counsel Romesh de Silva: Even though he had left office, the threat against his life had not ceased.
Justice Amaratunga: How can you gauge it?
Counsel Romesh de Silva: That is mathematics. Security threat is equal to that of the right to equal protection. The threat is there when he was the Commander of the Army. The threat to the Petitioner Fonseka is equal to the threat to the Defence Secretary. The LTTE want to target him whether he is in office or not.
Attorney General Mohan Peiris with Senior State Counsel Nerin Pulle appearing for the State submitted that the security to the Petitioner is given beyond his requirement. In his affidavit, he asked for 600 soldiers but in his paper he asked for 520 soldiers. This is not confirmed in his pleading. He is asking for more security arbitrarily.
The State contended the security provided to him is more than adequate. Even the preferential privileges granted by the Cabinet of Ministers to the former President Chandrika Kumaratunga too had been struck down by the Judgment of the Supreme Court.The Attorney General further said that the security presently given to Fonseka is grossly excessive.
Petitioner Fonseka cited Defence Secretary Gotabhaya, the Army Commander, the IGP, the acting Chief of Defence Staff, the Secretary to the President and the Attorney General as respondents. He sought a declaration from the Court that the Defence Secretary and the State have acted arbitrarily and capriciously, and in breach of his fundamental right to equality by reducing his personal security, and by failing to provide him with adequate personal security.