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Fonseka Trial: Free and Fair? (Opinion)

Aug 13, 2010 11:23:57 AM - thesundayleader.lk
Fonseka waving outside court

Fonseka waving outside court

A short while ago, reports began to surface that DNA MP and former Army Commander Sarath Fonseka was found guilty of engaging in political activity while in uniform. MCNS head Lakshman Hulugalle and military spokesman Ubaya Medawala said they were both awaiting official confirmation.

If indeed the reports are true, the word “travesty” springs to mind. After all, the proceedings continued despite court holidays. More importantly, despite the fact that Fonseka’s own legal representation was absent.

The ‘right to counsel’ is one of the most basic rights of the accused. The defendant has the right to a lawyer to state his case. If he cannot afford this, the state should be able to provide one. Violating this right is not exactly a criminal offence. However, as lawyer Upul Jayasuriya pointed out, “the right to counsel… is a cardinal principle.” That makes the decision to proceed despite the fact that Fonseka’s lawyer was ‘on holiday’ somewhat controversial.

Of course, Fonseka has been vociferous about his rights being violated. When he was first detained at the Navy headquarters, he reportedly refused to eat any food not provided by his wife, convinced that he was at risk of poisoning. He went on a hunger strike when he was told he couldn’t use his personal mobile phone to communicate to his daughters via Skype. He even demanded that an air conditioning unit be installed in his room, since he had respiratory problems.

Fonseka did, however, retain his civic rights, since he wasn’t officially sentenced. This meant he could attend Parliamentary sessions. On the few occasions he was prevented from doing so, he (rightfully) vigourously protested. And he has remained very much in the public eye, simply because of his unique position- a former war hero now labelled as a traitor. The frequent protests organised by his party, the Democratic National Alliance, and spearheaded by his wife Anoma have gone some way to maintaining public interest.

The right to a fair trial- another basic fundamental right. Was it fair to continue proceedings despite the notable absence of Fonseka’s counsel? Probably not. Then again, “fair” is not a word that appears often in Sri Lankan vocabulary.

At the end of the day, the accused’s rights should not be ignored-even if he is guilty of the crime.