The appeal filed on behalf of former Army Commander Sarath Fonseka who was sentenced to a three year jail term in the ‘White Flag’ case is seeking his acquittal on the grounds that he was sentenced under a non-existing law. The Appeal filed said that the Emergency Regulations, under which Mr. Fonseka was sentenced, was lifted on August 30, 2011 and when he was sentenced on November 18 the law was not in operation.
The plea is one of several points raised in a 35 page Appeal handed over to the High Court Registrar on Thursday. On Friday the case was forwarded to the Supreme Court for hearing.
Mr. Fonseka was sentenced to three years in prison and fined Rs.5,000 by the Colombo High Court with two of the three judges on the Bench finding him guilty of ‘propagating a false rumour’ in violation of Emergency Regulations and the Criminal Procedure Code .
Mr. Fonseka was found guilty on the first of the three counts he was charged with by High Court Judge Deepali Wijesundera and M.Z. Razeen while Judge W.T.M.P.B. Warawewa found him not guilty on all three counts.
The ‘White Flag’ case stems from an interview given by Mr. Fonseka to The Sunday Leader in which he alleged that LTTE leaders who were surrendering to the Army, carrying white flags, were ordered to be shot dead by Defence Secretary Gotabaya Rajapaksa.
The Appeal says that the charges against Mr. Fonseka were not proved beyond reasonable doubt and were against accepted legal principles and therefore he should be acquitted and discharged.
The Appeal said that though in the judgment it was mentioned that the defense counsel failed to show any contradiction in the evidence given by The Sunday Leader Editor Frederica Jansz, It said that during cross examination of Ms. Jansz there were at least 20 occasions she made contradictory statements and there were 100 more occasions where she made false statements.
Therefore the learned judges had failed to note the contradictions and properly analyse the evidence by Ms. Jansz, the Appeal said. The credibility of Ms. Jansz as a witness has been another issue raised in the appeal. The reasons for questioning the creditability of the witness have been cited as making a false complaint lodged at the Cinnamon Gardens police station against the panel of judges of the Journalism Awards, making a false statement about her application submitted for the Journalism Awards organized by the Editors’ Guild and the claim by her that the words ‘wanted’ and ‘attempted’ gave the same meaning.
There was also a doubt about the note book of Ms. Jansz which was forwarded to Courts, but no attention had been paid by the learned judges about that doubt.
Though Ms. Jansz had claimed that she does not publish false information she has been warned by Courts for violating directives by the Courts and has been charged for contempt of courts, the Appeal said.
The Appeal said that the learned judges had arrived at a wrong conclusion by determining that ‘it cannot be stated that Ms. Jansz published the news item without verification.
The Appeal said that the learned judges had failed to compare statements made by Ms. Jansz who has been charged for publishing false statements with those of a four star General who served the nation for 40 years.
The Appeal said that though Defence Secretary Gotabaya Rajapaksa in his evidence said that the statement made by Mr. Fonseka had caused disaffection among the Tamils and protests by them it was not established by evidence.
The evidence given by Ms. Kshenuka Seneviratne and Dr. Rajiv Wijesinha also said that the statement reported to have been made by Mr. Fonseka did not create any disturbance among the public.
The Appeal was filed by Paul Ratnayake Associates. The Appeal was settled by Senior Counsel Nalin Laduwahetty and Attorneys Asela Muthumudalige, Anushka Amaratunga and Janajith de Alwis.
Fonseka release: Appeal to President would be considered
President Mahinda Rajapaksa yesterday re-iterated his offer to consider ‘sympathetically’ releasing former General Sarath Fonseka from jail if his wife Anoma makes a request.
But the wife of the war hero told the Sunday Times “I don’t want to make any appeal because my husband has done no wrong.”
President Rajapaksa’s renewed offer was made by his spokesperson in the wake of reports that Ms. Fonseka and her daughters were planning to petition US President, Barack Obama, seeking help for the release of Fonseka.
“Appealing to the President of another country is a futile exercise,” the spokesperson said adding that the White House was thousands of miles away. “It does not cost anything to visit Temple Trees which is in Colombo 3,” he said.
The spokesperson said “Ms. Fonseka should not follow the practice of the Leader of the Opposition and run to foreign governments and countries. President Rajapaksa could be described as the most accessible Head of State in the world.”
The spokesperson’s remarks came in the wake of last Tuesday’s rally organized by United National Party (UNP) leader, Ranil Wickremesinghe at Hyde Park, Colombo 2. The main demand at the rally was the release of Fonseka – a move that appears to have angered the government. A counter protest rally against the Opposition Leader was held in Colombo Fort on Friday afternoon.