The never-ending Fonseka tragedy


A crowd had assembled near the Colombo High Court complex from around 10.30 in the morning on Thursday, the day the judgement of the ‘white flag case’ was delivered. Sarath Fonseka, the accused in the case had been brought to the courts by 11.00 am and the three judges came on the bench at 11.30 am. By noon, Fonseka was declared guilty of one of the three charges and sentenced to three years in prison. By that time, the crowd had swelled to around 200 people. There was a heavy police presence and the STF had also been deployed.

But this did not stop a small group of persons who had been behaving as if they were ‘possessed’ in the words of one eye witness, screaming "General Fonseka apata diyaw!" and shouting abuse at President Rajapaksa after Fonseka had been brought to the courts. They had even shaken the doors of the high courts almost off their hinges. Quite clearly, the Fonseka supporters were not expecting a judgment that would go in his favour. The courtroom itself was packed with people who had come to hear the verdict. After the sentencing, there was pandemonium again, with unruly elements within the crowd even shouting abuse against the judges.

That was perhaps a suitably unedifying end to this sordid saga which began during the last presidential election campaign. From the beginning, Fonseka’s defence counsel Nalin Ladduwahetty was fighting a rear guard battle as Fonseka is not the kind of client who will help those who are trying to help him. On one occasion, Herman Gunaratne of "For a Sovereign State" fame who knew both Fonseka and president Mahinda Rajapaksa and had ready access to the president wanted to mount a rescue operation to save the imprisoned war hero and the present columnist readily agreed to help. His plan was to work out a deal between Fonseka and Rajapaksa where Fonseka gives certain pledges in exchange for presidential leniency.

We published an interview outlining what Guneratne thought Fonseka should do to smoothen ruffled feathers at the top but two days after it was published, Fonseka shot his mouth off again during one of his visits to a private hospital and that was the end of our rescue operation. During the presidential elections, members of the UNP who had access to him had been trying to advice Fonseka not to spew hatred from the election platform but he had been deaf to all advice. His latest sentencing is also due entirely to Fonseka’s inability to guard his tongue. There was never any doubt that he would be found guilty in the ‘white flag’ case. He repeated what he had told the Sunday Leader at some election rallies and these were widely disseminated over the electronic media. The present writer can clearly remember those broadcasts.

The Judgment

The ‘white flag case’ was about a statement that was made to the Sunday Leader by Sarath Fonseka during the last presidential elections to the effect that Defence Secretary Gotabhaya Rajapaksa had instructed the commander of the 58th division Shavendra Silva to kill all surrendering LTTE leaders. This was published in a headline story in the Sunday Leader on 13 December 2009. In declaring Fonseka guilty, the judges drew reference to the following facts. Before publishing the story, Frederica Jansz the editor of the Sunday Leader had called Fonseka again and told him that she was going to publish it and he had stood by his story. Later Jansz was to explain in an article on 3 January 2010 that she had given this story prominence because she thought it would portray Gotabhaya Rajapksa as a war criminal but that the other side had turned the tables on her by using that headline story to portray Fonseka as a traitor instead.

Among the other things that Jansz said in that article of 3 January was that the management of the Sunday Leader had taken a policy decision to support Fonseka’s candidacy and that the UNP was paying the newspaper one million rupees a week to increase the number of copies printed. This explanatory article too had much to do with getting Fonseka convicted. After the Sunday Leader headline story appeared, Fonseka had wanted to see Lal Wickremetunga, the owner of the Sunday Leader and Jansz. When they went there, in addition to Fonseka and his personal assistant Senaka Silva, the others present had been Anura Kumara Dissanayake, Mangala Samaraweera and Tiran Alles.

At this meeting, Samaraweera and Dissanayake had asked Fonseka to publish a correction denying that he had mentioned Shavendra Silva’s name but Fonseka had refused to do so. Then Fonseka had told Jansz and Wickremetunga that he was under pressure from his political backers and asked them to carry a clarification. This clarification which had been carried in the Sinhala sister paper of the Sunday Leader, the Irudina, was that even though Gotabhaya Rajapaksa had in fact issued such orders to Shavendra Silva, they were never implemented and that those LTTE leaders who died had been killed during the hostilities. This clarification had been carried in Fonseka own words, and was one of the main factors that cooked his goose.

Many people do not realize what this case was about. Fonseka was not being tried for treason or any big issue of that nature. He has in effect been found guilty and convicted for "rumour mongering" which is a punishable offense under emergency regulations. He is the only person that this writer has heard of who has actually been charged and convicted for rumour mongering in this country! The emergency regulations prohibit the spreading of rumours by word of mouth or other means in such manner as to cause public alarm or unrest and this is what Fonseka got himself fixed on.

In getting the above mentioned clarification published in the Irudina, Fonseka made two assertions. 1) Gotabhaya Rajapaksa did issue illegal orders to Shavendra Silva 2) But these orders were never implemented and no surrendering LTTEers were killed by the army.

This in fact is a text book case of disseminating unsubstantiated hearsay because as Jansz herself had pointed out to courts, Fonseka had admitted the most important part of the assertion she had made earlier to the Sunday Leader which is that Gotabhaya Rajapaksa did issue illegal orders to Shavendra Silva. When Jansz had called Fonseka the day before she published this fateful headline story, he had told her that he had been told that story about Gotabhaya Rajapaksa having given illegal orders to Shavendra Silva, by a journalist who was attached to the 58th Division. This addition that Fonseka had been told about this by a journalist had appeared in the Late City Edition of the Sunday Leader.

So the General managed to tie himself up in knots firstly by telling the Sunday Leader some unconfirmed story that he had heard. Then he had got the Irudina to publish a ‘clarification’ where he had stated that the first part of the story was true while the other part was not. Fonseka may have been able to escape punishment if it had stopped at this. But true to form, he took it further, by talking about it at election meetings and other fora. The footage captured by Sirasa TV of a press conference given by Fonseka on 14 December 2009, footage captured by Derana TV of him speaking at an election rally in Ratnapura on 23 December 2009 also featured prominently in this case.

At the Ratnapura meeting, Fonseka once again said that the defence secretary had issued wrong orders to those on the battle field and that journalists had been aware of this and that what he (Fonseka) had told the press was what had been told to him by journalists - that orders had been given out to shoot anybody even if they have white flags. And that if such ‘low down’ (pahath) orders had been given, he is not willing to stick his neck out to save those who had issued such orders. Here we see that he has once again asserted that the defence secretary had issued wrong orders and that journalists had been aware of it.

At the press conference which had been captured on Sirasa cameras, Fonseka had asserted that no surrendering LTTE leaders were shot by the army. So the courts came to the conclusion that Fonseka, knowing fully well that this charge of killing surrendering LTTEers was false, he still told Jansz about it and spoke about it on the public platform in a manner that brings the entire country into disrepute. The court held that when a person like the former army commander says such things, it tends to be believed by the public and the wider world. The court took into consideration the fact that there had been queries from the UN about the statement made by Fonseka. It had spread consternation not just among the locals but within the international community as well.

Fixed for rumour mongering!

The courts decided that all that while, Fonseka was knowingly and deliberately disseminating something that he himself knew was false. The question was that if Fonseka knew that the army had not killed any surrendering LTTE leaders, what was the point in telling the Sunday Leader and the general public in other fora that certain journalists had told him that Gotabhaya Rajapaksa had issued orders to Shavendra Silva that surrendering LTTE leaders should be killed? Fonseka was not able to explain the contradictions in the stories he had been giving out.

Even though most journalists record interviews nowadays, the Sunday Leader had not recorded the interview but only taken notes. In courts Fonseka stated that the Sunday Leader headline story had distorted what he had said. However, he was hard put to explain why he did not demand an immediate retraction of that statement from the Sunday Leader. What Fonseka had told courts was that when Lal Wickremetunga and Jansz had met him in the presence of Anura Dissanayake and Mangala Samaraweera, after the publication of the contentious headline story, Jansz had wept and told them that if the story is retracted she will be arrested. Wickremetunga too had pleaded with him saying that it will be a big blow to him if Jansz is arrested. Fonseka had said that since this was a newspaper that had come forward to support his candidacy, he did not want to cause discomfiture to them by insisting on a retraction of the headline story.

The courts came to the conclusion that Jansz had no reason to lie as she worked for a newspaper that had taken a policy decision to support Fonseka’s candidacy and the paper was getting paid a large sum of money by the principal political party backing Fonseka; and such a newspaper has no reason to fabricate highly damaging false stories about the candidate they were backing. The courts refused to believe the story that Fonseka did not ask for an immediate retraction due to the fear that Jansz would be imprisoned. If the story was damaging politically to a candidate at a crucial presidential election, the court’s view was that the story should have been retracted. However, not only was it not contradicted, it was confirmed in other statements that Fonseka subsequently made in other fora. It was thus that Fonseka came to be convicted for rumour mongering under the emergency regulations.

UNP reformists including Sajith Premadasa, Karu Jayasuriya, Sujeewa Senasinghe, and Rosy Senanayake were prominent among those who had come to the high courts on the day of the sentencing.

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