Controversial White Flag Debacle

Judges have established a dangerous (Common Law) Precedent by denying Justice for General Fonseka.

| by  S.S.Upasiri de Silva

 “Law is a system of rules imposed by the supreme authority in a politically organised society and recognised by the members of that society as governing or regulating their conduct or intercourse, one with another”-  Professor Jenks.

(December 29, Melbourne, Sri Lanka Guardian) Professor Glanville Williams defines a “crime” in the following terms “A crime (or offence) is a legal wrong that can be followed by criminal proceedings which may result in punishment”.

The former Sri Lankan army commander General Sarath Fonseka. Photograph: Ishara S Kodikara/AFP/Getty Images

Normally the combination of two factors is to be found in the decision to treat a certain class of conduct as criminal. The first is what may be termed the publicness of the conduct. Normally an act will only be labelled as a crime if it is thought to be more than an offence against one or more individuals. It must be injurious to the public in general. Of course all private injuries if they become sufficiently widespread become detrimental to the public. Nonetheless, the element of punishment seems to be an important aspect of any justification for treating conduct as criminal.

When we consider the above factors to treat the indictment filed against General Sarath Fonseka by the AG (Mohan Peiris PC) as a crime, and then we have a solid legal basis to deny the argument of AG. I am some what perplexed to understand, what are the crimes committed by General Fonseka by talking to a reporter from a news paper. I used the word “Controversial White Flag Debacle” to discuss the ambiguity created by this indictment. It is controversial in the senses , that the main body of information published in the Sunday Leader by its Editor Frederica Sandra Kamela Janz on 13th December 2009, was what she collected from other news papers. The AG formed his opinion and used these borrowed information by Janz from other news papers as the basis for the indictment of General Sarath Fonseka. I am very curious to know why AG ignored the previous publications of the same information by others to indict them. Is that because they wanted to trap General Fonseka for a crime he never committed. Did AG indict Sarath Fonseka because he challenges the President Mahinda Rajapaksa in the Presidential election? To my conviction, AG, Mohan Peiris should have taken a balance & independent view about this indictment as the custodian of maintaining Law and Order in the country. But he failed to uphold the fine qualities of the reputed office, and he neglected his duties as the AG to dispense natural justice to General Fonseka not as the war winning Army Commander but as a normal citizen.

Who accused 58 Division 58 about these killings before Janz?

There were two foreigners and one Sri Lankan journalist who made very serious allegations in public (printed media) about these killings. The first person was Andrew Buncombe; and the others were Marie Colvin and another Sri Lankan journalist working for the Daily Mirror who exposed the criminal conduct of Gotabaya Rajapaksa the Brigadier of the 58 division. These two foreign journalists had already discussed the matters concerning the conduct of Gotabaya Rajapaksa in relation to giving orders to Savendra Silva the Commander of the Brigade 58.in their respective journals enabling entire world to experience it. The Daily Mirror journalist released this report to Sri Lankan reading public as well as on line readers. The biggest question is how these journalists got this very confidential information when Journalist were bared from the war front?

“The Independent” papers in London exposed this serious criminal offence committed by the 58th Division of the Army as ordered by Gotabaya Rajapaksa. In their 20th May 2009 edition, they wrote in bold headings that “Tamil leaders killed as they tried to surrender”. The reporter was Andrew Buncombe from Colombo and included the following information (quote) “Mr. Kohona, then Secretary to the Ministry of Foreign Affairs produced a TEXT message stored in his mobile phone which he has send to the NGO @ 8.46 A.M. on Sunday, 16 hours before the Norwegian Minister had his final conversation with the LTTE leaders would be safe if they give themselves up. The answer was just walk across to the troops, slowly with a White Flag and comply with instruction carefully soldiers are nervous about suicide bombers (unquote) But according to Buncombe, “the Tamil political leaders followed the instructions but shot dead by the troops”.

Why AG failed to indict Andrew Buncombe and others for creating terror and panic?

At the time this serious news report was published General Fonseka was the Army Commander and the country was ruled under Emergency regulations. Two days after this publication President Rajapaksa declared him as a General and told the entire world that General Sarath Fonseka was the best Army Commander in the world.

At that time President or none in the Presidential Secretariat, Gotabaya Rajapaksa the Defence Secretary or the AG took any notice about these publications. They completely ignored the news and never worried about the news item creating terror or panic. Gotabaya Rajapaksa was very proud of himself for having ordering the troops to kill the LTTE Leaders without allowing them to surrender, in the absence of President and the Army Commander Sarath Fonseka from the Island. One of the foreign journalists Andrew Buncombe was stationed in Colombo at the time he reported this serious criminal act to his paper ‘The Independent”. If Gotabaya (or AG )was concerned about safeguarding his name, the Defence Secretary Gotabaya Rajapaksa could have instructed the IGP to question Andrew Buncombe how he got that information and who gave him the information as the journalist were bard from the front during the war.

Then on 21st May 2009, the Daily Mirror published a detail report similar to what the Sunday leader published (the same report was reproduced by Frederica Janz the famous Editor of the Sunday Leader) but no indictment was filed by the AG against the journalist who wrote that report. Why? Because according to this journalist it was a correct report and Gotabaya Rajapaksa who gave the orders to Brigadier Savendra Silva was afraid to charge the reporter thinking that further information may be leak out.

I am surprised to note that AG Mohan Peiris and Gotabaya Rajapaksa the SD waited for 7 months and just before the Presidential elections, to indict General Fonseka for some thing they knew that was in the public domain since 20th May 2009. Who did organise the Editor of the Sunday Leader Frederica Janz to interview Fonseka to implicate and disgrace him as he was the Presidential Candidate at that time? Why did the defence lawyers fail to go deep into this matter?

The report in the Sunday Times London published on 24th May 2009 about the atrocities committed by of Kumaran Pathmanadan (KP) trying to save his LTTE Leader working for him, but till today he was not charged for any of his criminal acts.

Who is responsible for Burden of proof?

A major distinguishing factor in relation to criminal proceedings is, however, the difference between what is known as the ‘burden of proof’. In criminal proceedings the AG or the prosecution is required to prove the commission of the offence charged beyond all reasonable doubts. This is linked to the presumption of innocence of the alleged offender or the ‘accused’ as he is known. This burden remains with the AG or the prosecution throughout the whole of the proceedings. AG’s obligation is to prove all elements of the crime alleged. The accused does not assume any burden of rebutting the AG’s allegations at any time.

In this particular case the ‘burden of proof beyond all reasonable doubts’ has never been proved by the prosecution. The witness Janz who uttered 100 odd lies during her evidence failed to authenticate her report as a narration of General Fonseka’s own. Due to the fact an appeal is pending, I do not intend to discuss this any further.

Were the Presiding Judge acted biased?

Judges, Lawyers, Intellectuals, Professionals and majority of the lay people in Sri Lanka and living abroad including myself were very causes about the way the Leading Defence Lawyer Nalin Ladduwahetty conducted this case. We suspect, most probably he was under very severe threats from the goons of Defence Secretary Gotabaya Rajapaksa not to call certain witnesses or to declare that Presiding Lady Judge was not totally impartial due to her personal involvements with the President. The general public should know, what are these personal involvements of President Mahinda Rajapaksa and Deepali Jayasundera, and how the impact of that relationship on this case and did these relationships create a ‘Conflict of Interest” hampering her Judgement?

Under the 18th Amendment introduced to the Sri Lankan Constitution, the Judiciary, AG’s department and many other Independent bodies are directly under the control of President of Sri Lanka. While this White Flag case was being heard at the courts, the wedding of the daughter of the Presiding Judge took place at the Cinnamon Grand Hotel in Colombo. President Mahinda Rajapaksa, (the arch enemy of General Fonseka), who is the custodian of the judiciary, organised the matrimonial ceremony of the Presiding Judge’s daughter and was the attesting witness to the marriage. Interestingly, the President had presented Rs. ONE Million and unregistered car to the newly wedded couple.

General Sarath Fonseka is now in prison for not divulging his relationship under “Conflict of Interest” under the NPA Guidelines with Danuna Thilakarathne in a very small purchase by the Army in 2007, which helped the 58 & 59 Divisions to annihilate the LTTE using the Night Vision Glasses purchased from that tender.

I think, to remove all suspicions about the close relationship between President Mahinda Rajapaksa and Judge Deepali Wijesundera the Judicial Commission should investigate the “Conflict of Interest” between President Mahinda Rajapaksa and the Presiding Judge Deepali Wijesundera before the Appeal is taken up for examination. How does the same law apply to others in two different ways if they are enemies of the President?

Is this case creating a “Doctrine of Precedent”?

I like to pin point a very dangerous precedent this case has now established. The legal reasoning ought to be rational and reasonable, and out to espouse objectives of achieving justice and moral rectitude at all times. Legal professional and the laymen will view the objectives of law and legal reasoning in terms of rather more universal ideals and seek to criticise the operation of the law from the standpoint of these ideals.

Civil Law (system) practice in Sri Lankan Court are more or less ‘inquisitorial or investigative’, and also bound to operate most usually according to a ‘doctrine of precedents’ which requires generally that courts are bound by the decisions taken by Courts of appropriate authority earlier in time. But in this case the Investigative nature of the Civil Law failed to provide any re-course to this accuse.

As such this case may be the first in the world, where the evidence of a journalist who was on bail for breaching a court order for publishing in-accurate information about the Ministry of Defence and the Defence Secretary, was accepted by a superior court, to punish a FOUR start General who served the country and the Army for 40 years who annihilated the LTTE after escaping death by a mere whisker.

This “doctrine of precedent” may be applied by other judges in many cases to come in the future and the first case may be the case filed by Gotabaya Rajapaksa as the Defence Secretary against the Sunday Leader for deformation of his character claiming millions of Rupees from the Editor of Sunday leader for a report saying that he misused the NPA Guidelines to make large quantities of money by purchasing MIG 27 Jet planes and training Jets. It is a TRUE fact that Gotabaya Rajapaksa as the Chairman of the Lanka Logistics Pty.Ltd and Mohan Peiris as a Director completely ignored the NPA Guidelines to purchase over US $ 1 billion worth of Military Equipments including these MIG 27 Jet fighter aircrafts.

The Judges hearing the above case, if used this ‘ doctrine of precedent’ may acquit the Leader Publication as genuine people who never tell lies under any circumstances as it was established beyond any doubt by this judgment. This may use by other publishers and reporters who are indicted by the AG for deformation of character of public or other figures to seek acquittal.

Another question people may raise is how come the Army Commander was not aware what happened under him and whether he was lying to save Gotabaya Rajapaksa for having ordered Brigadier Savendra Silva and the other Army Officers to shoot the LTTE leaders surrendering with white flags. If not, how come reporter Andrew Buncombe and Marie Colvin new about the shooting of the LTTE Leaders coming with White Flags? Also how come Daily Mirror got this news item, and who was responsible for these exposures? Is this person who exposed these information was the former Army Commander Sarath Fonseka or some one else from the 58th Division under Brigadier Shavendra Silva?

Anyhow the Judiciary and the AG’s department under the President Mahinda Rajapaksa should take appropriate action to prevent “Travesty of Justice” taking place and a Sri Lankan citizen who saved the country from the LTTE, and nearly lost his life, serving a THREE year prison sentence for a crime he never committed.