By Uvindu Kurukulasuriya –

The three member Trial–at–Bar comprising  Justices Deepali Wijesundara, M. Zurfick Razeen and W. T. M. P. B. Warawewa delivered a  dissenting judgment, two to one, ruling that former General Fonseka was guilty of disseminating disinformation that could incite communal hatred,  and creating anti-government feelings under Article 28 of the Emergency Regulations, 2005.

Justice Warawewa dissented with the majority judgment and questioned the credibility of the primary witness Frederica Jansz, who he stated, “had lied and then said hundred more lies to justify the first lie”.

Fonseka allegedly made a statement in an interview held on December 8, 2009 with Frederica Jansz of The Sunday Leader, to the effect that Defence Secretary Gotabhaya Rajapaksa ordered then Brigadier Shavendra Silva, the commander of the 58th Division to shoot surrendering LTTE leaders.

Nobody knows what exactly was said during that interview, except Frederica, Lal and Sarath Fonseka. Apart from the lead story published under the title: “Gota Ordered Them to Be Shot” – General Sarath Fonseka, on December 13, 2009 in The Sunday Leader, we now have other evidence to support Frederica’s claim that Sarath Fonseka did indeed tell that story to her.

A classified US diplomatic cable from Patricia A. Butenis, the US Ambassador to Colombo states that Presidential candidate General Sarath Fonseka stood by the controversial “White Flag” story published by The Sunday Leader even after it was published on December 13, 2009.

The cable written on December 14, 2009 at 1.50 p.m. by Ambassador Butenis and classified as “Confidential” recounts the details of a lunch meeting she had with UNP deputy leader Karu Jayasuriya and Sarath Fonseka on December 14, 2009.

“After Fonseka arrived, the former general discussed his interview in The Sunday Leader newspaper on December 13, in which he had accused Defence Secretary Gotabhaya Rajapaksa of ordering at the end of the war the shooting of any LTTE leaders who might try to surrender under flags of truce.” she wrote to Washington. The Ambassador further wrote “Fonseka claimed he did not know until two days later about the flurry of phone calls between Gotabhaya, the Norwegian ambassador, and the LTTE leadership regarding surrender and said he had been told details by journalists. Nevertheless, he said he took full responsibility for the actions of the men in uniform.”

What does it mean? This clearly shows us Fonseka stood by Frederica’s story! Unfortunately the Judge would not have had this information. He would also take this into account only if it was part of evidence led in court. So can we say Frederica “had lied and then said hundred more lies to justify the first lie”?

What has really happened then? After the story broke, the government began to portray Fonseka’s allegation as an act of treachery.  The story of the massacre was irrelevant. What mattered was that by speaking out Fonseka was betraying Gotabhaya, the Army and the country. A government-backed campaign commenced to publicise particularly in Sinhala, a distorted version of the story, and present the General as a traitor.  The objective behind the campaign was to convince the General that his accusations were eroding his popularity and to force him to back down in the interest of winning more votes. This campaign began immediately after the newspaper went on sale with radio shows denouncing the story as an act of treachery by early Sunday morning.

It was only as the government’s denunciation campaign intensified with TV, radio and internet sites declaring the former war hero a traitor that Fonseka’s advisors Mangala Samaraweera, Anura Kumara Dissanayake and Vijitha Herath in particular advised him to retract part of the story.

At a meeting with the Chairman of The Sunday Leader, Lal Wickrematunge on Monday, December 14, senior UNP leaders together with Samaraweera and the JVP insisted that a retraction was necessary as the story had damaged Fonseka’s reputation as a patriot.

So, I am not willing to accept Justice Warawewa’s dissenting judgment. Then can we accept the majority judgment? No! I would like draw two points to your attention.

Firstly, Fonseka was guilty of disseminating disinformation and inciting violence and offence. So, did violence actually take place because of Fonseka’s statement? The answer is no. So how  can one say this judgment is correct?

Secondly, an interesting question of law has arisen in relation to the Fonseka White Flag case. Justice W. T. M. P. B. Warawewa reached the age of retirement of 61 years while the case was going on. President Rajapaksa gave him an extension to enable him to continue to hear the case. Legal experts say that the age of retirement of a High Court Judge is fixed at 61 years by section 6 of the Judicature Act and there is no legal provision for an extension to be given. They point out that the Three-Judge Bench was thus not properly constituted and any decision by the bench is illegal. Colombo Telegraph posed the question whether Fonseka’s lawyers raised the issue in Court. One expert stated that the lawyers may purposely not have raised the question, so that the question can be raised in Appeal. “Consent does not give jurisdiction” is a well-known legal principle and maybe the lawyers will raise it in Appeal” another legal academic said.

*You can also read this article in Sunday Leader