Senior Lawyers point out that the conduct of the legal proceedings against Gen. Fonseka by the first military Court during Court holidays ignoring the request of the defense lawyers
not to hold sessions during the holidays is itself a violation of fundamental rights, denial of the rights vested in the Lawyers under the constitution and a defiance of the Supreme Court
rules and regulations.
Court holidays are decided upon by the Supreme Court (SC). It is the latter with the consent of the Lawyers which grants the holidays in accordance with SC rules. Under the fundamental rights laid down in the constitution, an individual is entitled to employ a Lawyer according to his wishes. That right he enjoys under the general provisions of the law whether in the military Court or in any Court in the country, the senior Lawyers explained.
By violating the SC rules, there has been a contempt of Court committed, they added.
The Lawyers appearing for Gen. Fonseka had only asked the military court to suspend sittings during the holidays granted by the SC. That request was based on the right granted to them under the law. Court Holidays are declared to give the lawyers a brief rest and some mental peace away from the tensions they are subjected to during court proceedings. These holidays last ten days and are an entitlement the Lawyers are granted as a fundamental right under the constitution.
The military court has violated that fundamental right the SC has granted, as well as the right of an individual to retain a Lawyer conferred on him by the constitution. The Lawyers who appeared for the accused have enlightened the military court on these facts for a long time and made their request well ahead, the senior Lawyers observed.
Senior lawyer Rishard Ameen had clearly told the military Court well ahead that Attorney at law PC Rienzie Aresecularatne, the Lawyer for the General cannot be present during the court holidays and can appear on the 6th of August. But the military court does not sit on that day because it is a day on which the Parliament sessions are on. While Aresecularatne had made it abundantly clear to Court that he is available on the 17th afternoon, 23, 25 and 26, the Judge advocate of the military Court decided to conduct the trial from 9th to the 13th of August.
The dates for hearing in all Courts from the lower to the Supreme Court are determined by the relevant Lawyers. In the second military Court too, when requests were made by the lawyers for the accused regarding dates for proceedings, they had been allowed by the Court.
Hence, primarily, the decision taken by the first military Court is a violation of the fundamental right of the Lawyers. Thus, like the Lawyers, the Lawyers` Associations should take up this issue , otherwise this situation will become an obnoxious norm and practice, the Senior Lawyers stated with concern. They claim that this was a premeditated plan. When it was a requirement that the General should be served with the charge sheet within 24 hours, it took two months to do that. In addition, denying Fonseka the opportunity of defending himself and precluding his Lawyers from cross examining the prosecution witnesses by holding the trial during the Court holidays, while also deciding the case suddenly and giving the judgment in such an unholy haste only go to confirm this is a cold calculated premeditated plan, the senior Lawyers emphatically pinpointed.
What is the justice that a Court can dispense without the Lawyer for the accused being given an opportunity to cross examine the prosecution witness Johnston Fernando who gave evidence against the accused? the Senior Lawyers questioned.