By Colombo Telegraph –

The President made a show of appointing her in place of Chief Justice Asoka de Silva, who was thought to be more sympathetic to the case

“The court was presided over by Acting Chief Justice Shirani Bandaranayake, considered a Rajapkasa loyalist. Several days ago, the president made a show of appointing her in place of Chief Justice Asoka de Silva, who was thought to be more sympathetic to the case but is traveling abroad.” the US Ambassador to Colombo wrote to Washington.

A leaked US diplomatic cable records the Supreme Court decision on General Fonseka’s Fundamental Rights petition re his unlawful detention. The Colombo Telegraph found the cable from WikiLeaks database. The cable written on February 24, 2010 and classified as “CONFIDENTIAL” by the Deputy Chief of Mission Valerie Fowler.

The US Ambassador to Colombo Patricia A. Butenis wrote “On February 23, the Sri Lankan Supreme Court denied former presidential candidate General Fonseka’s petition for release as interim relief in his fundamental rights case challenging the legality of his detention. The court ruled that because the basis of the submission for interim relief was ‘linked’ to the final relief requested, the court was ‘not in a position’ to grant the interim relief.”

There was no reason to detain him

“The court adopted the Attorney General’s argument that Fonseka’s claim that there was no reason to detain him could be verified until the investigation had been completed. While no charges have been filed against Fonseka, areas of investigation mentioned by the Attorney General included the alleged 400 army ‘deserters’ at the hotel with Fonseka during election day, Fonseka’s statement that he would release ‘top secret’ information on the final stages of the war, and the Hi-Corp military procurement corruption case involving his son-in-law.” ambassador Butenis further wrote.

Several senior human rights lawyers practicing in Colombo have told the Colombo Telegraph that Chief Justice Bandaranayake cannot be regarded as impartial and independent in cases involving sensitive political issues, particularly those that have a connection to the Rajapaksas. Dr. Shirani Bandaranayake’s direct elevation to the Supreme Court from the Faculty of Law at Colombo University during the Kumaratunga administration was itself a political appointment, in which her mentor at the Law Faculty, the then Justice Minister, and present Foreign Minister G.L. Peiris played a key role. Following her husband’s acceptance of a political appointment from the Rajapaksa regime, however, any semblance of independence that remained has completely disappeared. From the US Embassy cable below, which deals with the fundamental rights application of Sarath Fonseka challenging his detention following the presidential election in January 2010, it would seem that Ambassador Butenis also did not believe in the judicial independence of Justice Shirani Bandaranayake.

To read more about Sri Lankan Judiciary click here

Below we give a part of the confidential cable.

VZCZCXRO1439
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DE RUEHLM #0132/01 0550154
ZNY CCCCC ZZH
O 240154Z FEB 10
FM AMEMBASSY COLOMBO
TO RUEHC/SECSTATE WASHDC IMMEDIATE 1354
INFO RUCNMEM/EU MEMBER STATES COLLECTIVE PRIORITY
RUEHKA/AMEMBASSY DHAKA PRIORITY 2443
RUEHIL/AMEMBASSY ISLAMABAD PRIORITY 9460
RUEHKT/AMEMBASSY KATHMANDU PRIORITY 7715
RUEHLO/AMEMBASSY LONDON PRIORITY 5453
RUEHNE/AMEMBASSY NEW DELHI PRIORITY 3882
RUEHNY/AMEMBASSY OSLO PRIORITY 0039
RUEHOT/AMEMBASSY OTTAWA PRIORITY 0239
RUEHSM/AMEMBASSY STOCKHOLM PRIORITY 0855
RUEHKO/AMEMBASSY TOKYO PRIORITY 4502
RUEHCG/AMCONSUL CHENNAI PRIORITY 0021
RUEHBI/AMCONSUL MUMBAI PRIORITY 7255
RUEHON/AMCONSUL TORONTO PRIORITY 0234
RHEFDIA/DIA WASHINGTON DC PRIORITY
RUEHGV/USMISSION GENEVA PRIORITY 0146
RHHMUNA/HQ USPACOM HONOLULU HI PRIORITY
RUEHBS/USEU BRUSSELS PRIORITY
RHEHAAA/NATIONAL SECURITY COUNCIL WASHINGTON DC PRIORITY
RUEKJCS/SECDEF WASHDC PRIORITY
C O N F I D E N T I A L SECTION 01 OF 02 COLOMBO 000132

SIPDIS

DEPARTMENT FOR SCA/INSB

E.O. 12958: DECL: 02/23/2019
TAGS: PGOV PREL PREF PHUM PTER EAID MOPS CE
SUBJECT: FONSEKA CATCH-22: SUPREME COURT RULES NO RELEASE
WITHOUT CHARGES

COLOMBO 00000132  001.2 OF 002

Classified By: DEPUTY CHIEF OF MISSION VALERIE C. FOWLER.  REASONS: 1.4
 (B, D)

¶1. (C) SUMMARY:  At a Fundamental Rights hearing on February
23, the Supreme Court denied General Fonseka release as
interim relief because his claim that there was no reason to
detain him could not be verified until the investigation was
completed and, presumably, charges were filed.  At the same
time, however, the court authorized protection of Fonseka's
security, greater access by his family, access by his
attorneys, and possibly access by his physicians.  The next
hearing was scheduled for April 26, 2010.  Embassy PolOff
attended the hearing.  END SUMMARY.

RELIEF DENIED
-------------

¶2. (SBU) On February 23, the Sri Lankan Supreme Court denied
former presidential candidate General Fonseka's petition for
release as interim relief in his fundamental rights case
challenging the legality of his detention.  The court ruled
that because the basis of the submission for interim relief
was "linked" to the final relief requested, the court was
"not in a position" to grant the interim relief.  (NOTE: The
court was presided over by Acting Chief Justice Shirani
Bandaranyake, considered a Rajapaksa loyalist.  Several days
ago, the president made a show of appointing her in place of
Chief Justice Asoka de Silva, who was thought to be more
sympathetic to the case but is traveling abroad.  END NOTE.)
Fonseka was not present at the hearing and his attorney had
not had access to him.  The next hearing was set for April
26, 2010, after the parliamentary elections.

¶3. (SBU) The court adopted the Attorney General's argument
that Fonseka's claim that there was no reason to detain him
could not be verified until the investigation had been
completed.  While no charges have been filed against Fonseka,
areas of investigation mentioned by the Attorney General
included the alleged 400 army "deserters" at the hotel with
Fonseka during election day, Fonseka's statement that he
would release "top secret" information on the final stages of
the war, and the Hi-Corp military procurement corruption case
involving his son-in-law.
BUTENIS