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The White Flag case: The reasons behind the two verdicts

Manopriya Gunasekara
Former Army Commander Sarath Fonseka was sentenced to three years in prison and fined Rs.5000 by the Colombo High Court on Friday with two of the three judges on the Bench, in the “White Flag” case, 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 judgment was announced to a packed court room with lawyers, supporters of Mr.Fonseka and media personnel thronging it to hear the much anticipated judgment. It was announced by the Court Mudaliyar following which Deputy Solicitor General Bhuwaneka Aluvihara requested a jail sentence of five years and a fine of Rs. 5,000 to be imposed on the defendant.

Nalin Laduwahetty, Counsel for Mr.Fonseka asked the court to consider the over 40 years of service to the country by the former Army Commander and the personal injuries he suffered in the line of duty to the nation when sentencing him.

The Court handed down a three years sentence, to run consequently, while he was fined Rs. 5000 which has to be paid within six months failing which he would be required to serve another six month jail term.

Mr.Fonseka made a statement from the dock after the sentencing in which he expressed his displeasure with the judgment (Please see Political Commentary on Pages 12 and 13).

The “white flag” case stems from an interview given by Mr. Fonseka to The Sunday Leader newspaper when he was the common opposition candidate at the last Presidential election in which he alleged that LTTE leaders who were surrendering to the Army carrying white flags were ordered by Defence Secretary Gotabaya Rajapaksa to be shot.

He was indicted before the Colombo High Court on December 8, 2009 on three counts including “propagating a rumour”, for attempting to promote hatred and cause ill-will and hostility among the people and for inciting the public against the State.

Excerpts of judgment by Deepali Wijesundara, President of the High Court Trial-at-Bar, and Judge Zulfikar Razeen:

It should be considered whether the accused had an intention of disrupting the Government and creating unrest among the public. In the statement made in courts it was evident that he had a grudge against the President and the Defence Secretary.

According to evidence given by the defendant, on July 12, 2009, two months after the war ended, the defendant was summoned to the President’s Office by the President and asked to take over as the Chief of Defence Staff (CDS) and hand over duties as the Commander of the Army. The defendant said he was shocked by the news as no such thing had happened in any other country. He said he was removed in an unprofessional manner as Army Commander by the President and the Defence Secretary. He said that as rumours were being spread that he was going to enter politics while serving as CDS, the President had at the Security Council meeting passed several hints at him. When the President’s Secretary Lalith Weeratunga inquired from him if he was planning on entering politics, he had replied that he would not do so while in uniform.

He said due to the unfair treatment meted out to him, he had resigned from the Army on January 12, 2009.

Prison guards dragging Fonseka to the prison vehicle
He said while he was engaged in the election campaign, a journalist by the name of Rakmish Wijewardene had contacted his secretary about an interview. He said that Wijewardene, Frederica Jansz, Lal Wickramatunga as well as a cameraman had come for the interview at the set time.

Wijewardene had interviewed him for about half an hour while Ms. Jansz and Wickramatunga remained silent. He said later Ms. Jansz and Wickramatunga had chatted with him for about five minutes when she questioned him about the allegation that LTTE leaders who were surrendering with white flags were to be shot on orders given by the Defence Secretary to Brigadier Shavendra Silva. He had said he had heard of such a story from two journalists who were in the war front. He said that he was unaware of anything beyond what he had heard from the journalists and that as far as he knows no one came forward with white flags and that the Army had not shot dead any such persons.

He also said that in the article “Gota ordered them to be shot,” he had not made any such comment and the Editor had imagined and written it. The defendant said that the Editor had not noted down anything he said and the notebook presented to the Court was something written on a later date.

The defendant has told the Editor that he received information about the shooting order from two journalists. We have to consider if the motive behind making such a statement was to discredit the Government and cause disaffection against the Government.

It should be considered whether the accused had an intention of disrupting the Government and creating unrest among the public. In the statement made in courts it was evident that he had a grudge against the President and the Defence Secretary.

It is clear he wanted to create fear among the public and bring disrepute to the Government during the Presidential election. The question arises why wasn’t the statement made by Mr. Fonseka claiming orders had been issued by the Defence Secretary to Brigadier Shavendra Silva to kill any of the LTTE leaders trying to surrender, was not denied soon after it was published.

During the evidence it transpired that the publication of the statement created a political disadvantage for Mr. Fonseka. It was mentioned that since The Sunday Leader Editor Ms. Frederica Jansz and Chairman of Leader Publications Mr. Lal Wickrematunge pleaded with him not to file action as Ms. Jansz could be jailed, the accused had not taken any action. The Court cannot accept the fact that he would make such a sacrifice for the Editor who reportedly lied.

The arrival of the judges: From left Judge Zulfikar Razeen, Judge Deepali Wijesundera and Judge W.T.M.P.B Warawewa

Defence Counsel said that Ms. Jansz is a person who made contradictory statements, but they could not point to a single instance where there was a contradiction in her evidence. There was no reason for her to lie and since the party of the accused had paid Rs. one million per week to the newspaper of Ms. Jansz to promote Mr. Fonseka as the common candidate the Court cannot accept the fact that she would make such a false statement. The Defence could not establish that there was a dispute between Mr. Fonseka and Ms. Jansz.

From the evidence of Ms. Kshenuka Seneviratne, the Defence Secretary and Major General Shavendra Silva it was clear that the statement made by Mr. Fonseka discredited the country. Major Gen. Shavendra Silva and the Defence Secretary said no such order was given to shoot the terrorists who were coming to surrender. Therefore it is a false and a controversial statement which has been told to The Sunday Leader Editor. Accepting the fact that no such incident took place proves that a false statement was made deliberately.

It is clear that there was a motive for Mr. Fonseka to make such a statement as he had a grudge against the President and the Defence Secretary. At a time when such a statement was adversely affecting the future of the Presidential candidate it cannot be accepted that such a statement was not denied by Mr. Fonseka because Ms. Jansz came to him and pleaded not to file action against her as she may be jailed. Mr. Fonseka does not deny making such a statement, but says it has been written in a different manner. He says also it was not done deliberately. Therefore it cannot be accepted that Ms. Jansz wrote the article to get an award.

Mr. Fonseka had said the LTTE leaders or terrorists coming to surrender were not shot. Therefore knowing that it was false a statement to that effect was made to Ms. Jansz. It has been told in a manner that it brings disrepute to the country. When such a statement is made by a former Army Commander the whole country accepts it.

It was mentioned by Major Gen. Shavendra Silva before the article was published Ms. Jansz called him and also had called the military spokesman Brigadier Udaya Nanayakkara. Therefore it cannot be stated that the news item was published without seeking confirmation.

It has been established, that Mr. Fonseka made the statement very well knowing that no such incident took place. Under the Emergency Regulations a person should not spread rumours to create unrest and fear among the public. It has been established without doubt that this was done.

Therefore it has been established without doubt that the statement made by Mr. Fonseka claiming that the Defence Secretary had ordered Major Gen Shavendra Silva to kill any LTTEer who came to surrender was a violation of the Emergency Regulations. On the second and third charges the accused is not guilty.

Excerpts of the judgment by Judge W.T.M.P.B Warawewa:

This case is based on an interview the former Army Commander Sarath Fonseka gave The Sunday Leader Editor Frederica Jansz in December 2010.

Frederica Jansz is a journalist by profession who had begun her journalism career in 1990 with Viz News and then worked at The Sunday Times before moving to The Sunday Leader. After joining the Leader as an investigative journalist in 1999, she became the Editor in December by which time the owner of the paper was Lal Wickramatunga, a witness in the case.

The headline in the Sunday Leader of December 13, 2009 was “Gota ordered them to be shot – General Sarath Fonseka”. The story was written by Frederica Jansz and she said this information had been reported before. At the time she published this report, she was aware that the defendant was contesting the upcoming Presidential election.

Ms. Jansz who conducted the interview on December 8 had failed to ask the defendant the name of the journalist who had divulged the information to him about the Defence Secretary. She said she had attempted to contact Gotabaya Rajapaksa to verify this information but he was not available in his office and hence she had left a message for him to call her.

Ms. Jansz had called the defendant on December 12 knowing the story was a sensational one. Here she had told him that she had been unable to get a comment from Basil Rajapaksa, Brigadier Udaya Nanayakkara, Brigadier Shavendra Silva or Gotabaya Rajapaksa and the telephone conversations had lasted 15 to 20 minutes. There is no record if such an attempt was made to contact these persons.
Ms. Jansz had in the conversation informed the defendant that she would be publishing the story with the headline “Gota ordered those shot.” The news article was published on December 13.

On January 3, 2010 she had published an article titled “her story” where she stated that what the defendant had told her was third hand information based on something he had heard from another person.

Ms. Jansz admitted that she had accompanied journalist Rakmish Wijewardene who was conducting the interview to see how he would conduct it and after its conclusion asked some questions from the defendant. Her last question was centered on the ‘white flag’ issue which had become a much talked about topic internationally. At that time both journalist Wijewardene and the cameraman who had accompanied her had left the room.

Later this story was sent for the ‘Scoop of the Year’ award as an entry to the journalism awards given by the Editors’ Guild. After this entry was rejected, she published articles in The Sunday Leader making allegations against Lalith Alahakoon, Amal Perera and Sinha Ratnatunga. Later she had to admit that it as not Amal Perera but Amal Jayasinghe who had been a judge for the awards of the Editors’ Guild. She also said that she had filed a complaint against Amal Jayasinghe saying one of her submissions to the awards had been stolen. It was later found that the file was on her desk at her office. After that she published articles written under the headline “You buy the lie” maligning all the other newspapers, saying they were only good to wrap fish.

It was sad to note that the prosecution had taken parts of the statement made by the accused Mr. Fonseka in order to substantiate the evidence given by The Sunday Leader Editor Frederica Jansz.
The evidence given by Ms. Jansz has not been substantiated by any other evidence led before the Courts.

The prosecution has failed to prove beyond doubt that Mr. Fonseka made a false statement.
The evidence given by Ms. Jansz contains false statements and creates doubts. Hundreds of lies have been uttered by her and it is not only one lie. It has been proved that her evidence is woven with lies and the article subject to question had been prepared based on other articles and on lies.

The article subject to question (Mr. Foneska’s interview) published on December 13, 2009 has similarities to the article published by the Daily Mirror on May 21, 2009. Ms. Jansz says that some of the information in her article had been extracted from the Cyber News, but she has not used it in quotes.
An analysis of the article shows that the sentence structure in her article is similar to that published in the Daily Mirror. Ms. Jansz maintains that journalists use the same words, but it cannot be accepted that all journalists use similar words in articles on the same topic.

Regarding the issue of submitting an application to the Editors’ Guild Awards she says that in her application she had mentioned that there was a clarification regarding the news item. But when she was further questioned she says that she believed she mentioned there was a clarification. It is surprising about the manner she changes the stance when she realizes that she has given a wrong answer. During cross examination, questions have been asked to establish that she was a witness who cannot be relied upon.

Therefore it should be analysed whether her evidence can be accepted. One of the witnesses who may have been called to establish whether Mr. Fonseka made the comments attributed to him would have been Mr. Lal Wickrematunga who was present at the interview, but not calling him as a witness does not prove the evidence given by Ms. Jansz. It only creates some doubt.

s. Jansz says that she did not take a tape recorder as the only tape recorder had been taken by another reporter for another interview with Mr. Udaya Gammanpila. Does this newspaper company have only one recorder? If the recording was available it would have been easy to establish whether a statement to this effect was made by Mr. Fonseka.

In her evidence she says that the words ‘wanted’ and ‘attempted’ give the same meaning. Therefore it has been established to the Courts that she is a witness who does not want to correct herself. She has been a witness who has been changing her stance from time to time, publishing falsehoods in a controversial manner and even not following Court orders.

Though Mr. Fonseka has been accused of uttering a falsehood that caused panic and terror among the public it is the witness Ms. Jansz and the owner of The Sunday Leader Lal Wickrematunge who have spread this. The prosecution had failed to prove the charges against former Army Commander Sarath Fonseka beyond doubt. The accused is acquitted and discharged on all three counts.


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