The Judgment On The White Flag Case

Sarath Fonseka was found guilty on the first charge in an indictment filed in the High Court of Colombo, consequent to an article carried in The Sunday Leader on December 13 2009 -  front page under the caption “Gota Ordered Them To Be Shot - Gen. Sarath Fonseka.”

The case was heard at a Trial-at-Bar before High Court Judges Deepali Wijesundera, Zulfikar Razeen and  W. T. M. P. B. Warawewa. The judgement was delivered on the November 18 with High Court Judges Wijesundera and Razeen agreeing that Fonseka was guilty and Judge Warawewa dissenting.
An exhaustive Trial-at-Bar examined and cross examined 20 witnesses for the prosecution and eight for the defence. The accused Sarath Fonseka made a statement from the dock. The witnesses for the prosecution included Frederica Jansz, Editor The Sunday Leader, Major General Shavendra Silva, Kshenuka Seneviratne, Gayan Kanchanamal Kudagama, Camera Journalist, Derana TV, Dinusha Jayakoddy, Journalist, Derana TV,  W. Nandana Wimalasena of Sirasa TV, District Court Judge Champa Janaki Rajaratna, formerly Magistrate, Nandasena Gotabhaya Rajapaksa, Secretary Defence and Anura Silva, Inspector of Police, Criminal Investigation Department.
The defence called Sukumar Rockwood, Press Complaints Officer of the Sri Lanka Press Institute, Professor Rajiva Wijesinghe MP, Anura Kumara Dissanayake MP JVP,  Chandrasekera Attapattu, Director General Foreign Ministry /UN Affairs,  Karu Jayasuriya Deputy Leader UNP and Professor Ashley Halpe.

The Order of Two Judges

The order of Justices Wijesundera and Razeen considered all the evidence led by the prosecution and the defence and the cross examinations. In delivering the judgment of ‘guilty’ in the first count the learned judges took into due consideration the dock statement of Sarath Fonseka.
The two judges concluded that on 08.12.2009 an interview did take place between Sarath Fonseka and the Editor of The Sunday Leader together with three others of the same organisation. This fact was established beyond doubt, they ruled. They further ruled that Raknish Wijeywardene and the cameraman Thusitha Kumara were asked to leave the interview and thereafter Lal Wickrematunge and Frederica Jansz remained and that Lal Wickrematunge asked the accused a question whilst Frederica Jansz too remained, is proved. Thereafter that Frederica Jansz asked the accused whether the newspaper and website reports that said Secretary Defence had given instructions to kill terrorist leaders and other terrorists who surrendered during the last stages of the war has been proved by evidence.
Therafter the learned judges considered whether the published article in The Sunday Leader of 13.12.2009 was what the accused had said to Frederica Jansz. Frederica Jansz in her evidence had stated that the accused had said this information had been given to the accused by two journalists embeded with the troops during the last stages of the war. The accused too in his dock statement agreed that such information was given to him in that manner but no shooting had taken place.
The two learned judges then took into consideration whether such a statement would have brought the government into disrepute and or whether the people’s feelings would have been aroused by such statement. The accused, the judges concluded had a deep resentment towards the President and the Defence Secretary, according to his statement from the dock. “Therefore the accused had an intention of bringing the government into disrepute and to instil fear into them during the Presidential election. This appeared so by evidence of witnesses and the statement from the dock of the accused.”  Though the accused denied having made such a statement in court why had he not done so when it was first published, was questioned by the Judges. The judgement stated, the witnesses appearing for the defence had stated that this article had been to the detriment of the campaign of the accused at the Presidential elections. The accused had stated, that legal action was not taken as Frederica Jansz would have been jailed and both Wickrematunge and Jansz had appealed against doing so. The learned Judges held that they did not accept that the accused would make such a sacrifice for an Editor, if such a false report was going to harm his election campaign to such an extent.
Thereafter, in the judgement the learned Judges took into account the defence suggestion the Editor of The Sunday Leader Frederica Jansz  was a person who changes her positions from time to time and was prone to lying. The Judges concluded that the defence was unable to prove contradictions or deficiencies in her evidence. The Court further concluded that she had no reason to lie. Even  the accused’s  party had given the newspaper Rs 1 Million a week for the Presidential campaign and as such the Court finds it difficult to believe that the Editor would lie about the accused.The contention of the defence was that Frederica Jansz had written this controversial article to win an award. The defence did not at any stage suggest that the Editor had any animosity towards the accused  nor was the defence able to even create any doubt in this regard, the Judges reasoned.

Rs 4 million given to The Sunday Leader

The UNP Deputy Leader Karu Jayasuriya in his evidence had confirmed that Rs 4 Million a month was given to The Sunday Leader for advertisements during the Presidential election campaign and when he did ask the accused about the controversial statement he had said that he had been quoted out of context.
Therafter the learned Judges had considered the evidence in relation to the note book of the Editor. The defence alleged that this note book was introduced later by the Editor and that her statements to the CID made no reference to it. Further it was suggested that she had informed the Derana reporter that she had recorded it and not said specifically that it was written in a note book. The Editor had clarified this by saying that the purported interview was fixed for a later date and since it was rescheduled at short notice there was no recourse to a tape recording device. She had also declined to give the original note book to the CID but did give a photo copy of it. She had retained  it as it is her personal property for her work and even said so in her statement to the CID.  The court accepted that a note book of a journalist was used by the profession in their day to day work. The Derana journalist in his evidence had said that when he asked the Editor whether she recorded it she said “yes, yes” but the telephone connection was intermittant and the Editor spoke in Sinhala as well as English. Since the Editor is a Burgher lady the court concluded as other evidence too suggested that when she said that she recorded it she meant that it was taken down in her note book. The Judges concluded that even in the court house  “please record this” is meant that such should be written down.  “On record” is also usually meant that something is written down.  Raknish Wijeywardene’s interview too was written down and the accused did not say that it was recorded.
The defence suggested that the note book of the Editor in question was introduced later and cannot be accepted in evidence. IP Anura Silva in his evidence had said that he took over the investigation after SP Samarasekera and had seen the photo copies of the note book in the investigation file. The Editor too had said that photo copies were handed over to the CID and therefore the court concludes that the note book was not a fabrication at a later date.

Derana TV camera’journalists evidence

The Derana TV camera/ journalists evidence was that he covered a rally of Fonseka at Ratnapura during the Presidential elections and the compact disc was handed over to the TV station in a secure manner. The learned judges came to the conclusion that when the accused said the same things that said to Frederica Jansz at a subsequent rally even though he said he heard it from a third party, he would have known that it was not only going to be believed but was going to cause panic.
The Presidential Candidate Sarath Fonseka uttered the following words at the rally in Ratnapura. “The Secretary Defence speaking without any responsibility,  in a disparaging manner, I think he is unable to loosen the tie knot he has been wearing for four years, has been giving wrong instructions to those in the war front from time to time. These, the reporters on the ground had known. We have said just what those reporters have said. Shoot anyone, even if there are white flags shoot them. If such low words were used I am not prepared to sacrifice myself to save them.”
The accused at a press conference subsequent to the article in responding to a question from a journalist said, “ I do not think this article was written with a political motive”. He also responded to another question saying, “I do not think that this was done deliberately.” Therefore, the court concludes that Frederica Jansz did not write this story to win an award as the Defence Counsel had suggested.
The defence consistently said that Frederica Jansz was a liar and her evidence was weak . The defence cited “K. Padmatilleke a.k.a. PS Elpitiya Vs Director General of The Bribery Commission” where the  judgement states that simply because the evidence of the defence is weak the prosecution case is not proved unless the evidence proves it beyond doubt.  The Court held that the cited instance was in a bribery case and since this was an indictment under Emergency Regulations  2005 Section 1 the stated judgement was not relevent to this case.
The defence had come to a conclusion that Lal Wickrematunge’s evidence would have been important to the prosecution and not doing so was akin to “Queen Vs G. M. D. Abeyratne” judgement.  This too was before a jury and is relevent when addressing a jury and not to this case, the Judges held.
“Both Seneviratne and Secretary Defence and Gen. Shavendra Silva had said that such a shooting did not take place. The Secretary Defence had said in his evidence that such an order was not given and so did Gen. Shavendra Silva. Therefore by saying that the accused heard such from a journalist embedded in the front, he was disseminating false statements to The Sunday Leader. By later clarifying that such a thing did not happen he was spreading false rumours. That the accused had a motive to do such was shown when he displayed anger at the President and the Secretary Defence in his dock statement.”
The defence also charged that Frederica Jansz had not followed the practised norms of journalistic etiquette in verifying this story.  “Shavendra Silva in his evidence stated that Frederica Jansz did speak to him on the telephone a few days prior to the article being published and questioned him on this issue. Jansz in her evidence stated that she spoke with the accused on December 12, 2009 on the phone to say that the story was going to be published. The accused also admitted that Jansz did speak to him on 12.12.2009 on his mobile but it was only for about two minutes. Frederica Jansz also said that she verified the story with the military spokesperson Udaya Nanayakkara. Therfore one cannot accept that Frederica Jansz did not verify the story prior to writing it.”
Therefore the two learned judges concluded that the first charge was proven against the accused beyond doubt.
The second charge was not one that could have been brought against the accused hence he was discharged on that count.
Since the third charge was under the penal code and was in conformity with the first charge and as a person cannot be charged for the same offence twice the accused was discharged on the third count.

Judge Warawewa Discharges Fonseka

Judge Warawewa in his dissenting judgement discharged the accused from all three counts. In his judgement he stated that any doubt created to court in the evidence led  to necessarily accrue to the defendant. Judge Warawewa  stated that the evidence given by the Editor of The Sunday Leader could not be believed.  Judge Warawewa stated that there was no requirement to go into the evidence of the other witnesses as the first witness’ evidence that the prosecution relied on was not to be believed.
Judge Warawewa further states that when the Editor was questioned by the Derana journalist she said that she recorded the conversation but later said that she wrote it down, to court. Judge Warawewa therefore states that there is a doubt created about the truthfulness of the story. The learned judge further states that the Editor called Shavendra Silva, Udaya Nanayakkara, the Army Commander and the Secretary Defence to verify the story but there is no mention of that in the note book. Therefore he concludes that there is proof  the controversial article was written without verificaion.
The defence is to appeal against the judgement in due course. Some political analysts consider Sarath Fonseka has been politically victimised. The opposition is to hold a rally on November 29, at Hyde Park to protest against the jailing of Fonseka.