Former Sri Lankan presidential candidate jailed for three years

By Wije Dias
26 November 2011

The Colombo High Court’s sentencing of former Sri Lankan army commander and presidential candidate Sarath Fonseka to three years’ jail on November 18 for “propagating a false rumour” is a travesty of justice. The government of President Mahinda Rajapakse, which instigated the court case, is determined to intimidate and suppress any opposition to its rule, no matter how limited.

As army commander, General Fonseka collaborated closely with the Rajapakse regime in prosecuting its communal war against the Liberation Tigers of Tamil Eelam (LTTE) and shared responsibility for the military’s war crimes. Following the LTTE’s defeat in May 2009, he fell out with the government, resigned his post and stood against Rajapakse as the main opposition candidate in the presidential election of January 2010.

Having won the election, Rajapakse set out to politically destroy his rival. Fonseka was arrested by military police amid government claims that he was preparing a coup. Far from proving that he was engaged in a coup plot, Fonseka was charged, tried and convicted on other charges. He is currently serving jail terms handed down by military courts appointed by Rajapakse as commander-in-chief—supposedly for engaging in political activities while in uniform and for corruption in procuring arms.

The latest High Court decision is politically the most significant punishment of Fonseka. The “false rumour” he was alleged to have spread related to what has become known as the “white flag incident” in Sri Lanka—the gunning down of unarmed top LTTE leaders who were carrying white flags and seeking to surrender.

Shortly after the LTTE’s defeat, two British newspapers—the Guardian and the Sunday Times—published detailed reports of frantic surrender negotiations between the LTTE leaders Balasingham Nadesan and Seevaratnam Puleedevan and the government via the UN and other international intermediaries. Despite guarantees given by Rajapakse to UN special envoy to Sri Lanka Vijay Nambiar that all the men had to do was “hoist a white flag high,” they and their family members were shot dead. (See: “British newspapers expose cold-blooded killing of LTTE leaders in Sri Lanka June 2009”)

In the heat of the presidential election campaign, the Sunday Leader published an article based on an interview with Fonseka that shed more light on the incident. The article quoted Fonseka as saying that the president’s brother, Defence Secretary Gotabhaya Rajapakse, had told Brigadier Shavendra Silva to give “orders not to accommodate any LTTE leaders attempting to surrender and that ‘they must all be killed’.”

The article provoked immediate denunciations by the government, which accused Fonseka of betraying the president and army colleagues, and urging his prosecution under the Official Secrets Act. Fonseka immediately backpedalled, saying he had been misinterpreted. Nevertheless, President Rajapakse and his brother, who were already facing international criticism over war crimes, were determined to pursue their rival.

The most significant aspect of the High Court case is that the allegations against Defence Secretary Rajapakse were never investigated. Fonseka, who as army commander certainly had intimate inside knowledge of the crimes being committed, insisted that he had never made the accusation and that his remarks had been wrongly reported.

The High Court made a split decision—two to one—to convict Fonseka of “spread[ing] a rumour to create unrest and fear among the public.” It found him not guilty on two other charges: that his remarks “aroused communal feelings directly or indirectly” and “aroused anti-government feelings among the public.” The sweeping and vague nature of the charges, drawn up under a state of emergency, underlined their anti-democratic content.

The majority judgment concluded that Fonseka had only indirectly accused Defence Secretary Rajapakse of complicity in the murders. After the formal interview, the Sunday Leader’s editor Fredrica Jansz and owner Lal Wickramatunga had asked Fonseka about “white flag” allegations while chatting with him. “He had said he had heard of such a story from two journalists who were in the front,” the judgment stated. “He said he was unaware of anything beyond what he had heard from the journalists.”

For the two High Court judges that was enough to convict Fonseka. “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.” Having decided that “he had a grudge against the president and the defence secretary,” the judges pronounced Fonseka guilty.

In a dissenting judgment, Judge Warawewa did not query whether the “rumour” was correct or not, but assailed the main witness, Fredrica Jansz. After pointing to several discrepancies in the editor’s evidence, Warawewa declared: “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 prosecution, he concluded, had failed to prove its case beyond doubt.

In his court statement, Fonseka declared: “I do not accept that this judgment was reasonable.” He went on to exonerate the army of any war crimes. “I am of the strong opinion that the army which I commanded was not involved in war crimes during the military victory. They followed my instructions according to the humanitarian laws protecting human rights during fighting.”

Fonseka added: “As a respected commander of the army I am of the view that if any one ordered that terrorists surrendering should be shot, that person should be brought before the law.” He went no further, however, in shedding any light on what did happen in the final days of the war.

The case underscores how the Sri Lankan political and legal establishment as a whole has come together to try to bury the evidence of war crimes and gross abuses of democratic rights carried out by the military during the island’s protracted civil war. These crimes did not involve simply the killing of LTTE leaders, but tens of thousands of Tamil civilians, as well as widespread arbitrary detention and extra-judicial murders.

A report published this year by an Expert Panel appointed by UN Secretary General Ban Ki-moon to advise on human rights violations in Sri Lanka found “credible allegations” that the Colombo government had committed a “wide range of serious violations” of international law, some of which “would amount to war crimes and crimes against humanity.” While denouncing the report, the Rajapakse government provided no detailed rebuttal.

The High Court verdict highlights the degree to which the Sri Lankan court system has been politicised. Earlier this year, the Supreme Court dismissed an appeal by Fonseka, whose lawyers argued against his court martial convictions on the grounds that the military judges were biased. The Supreme Court rejected the argument, stating that the court martial appointments could not be questioned because they were made by the president.

Above all, the political and legal persecution of Fonseka is a warning to the working class. The animosity between Rajapakse and Fonseka is certainly bitter and reflects tactical differences within the ruling establishment, particularly over foreign policy. However, all the factions are united in their defence of the profit system and the imposition of the burden of the deepening global economic crisis onto working people.

Having consigned the country’s former top general to years of hard labour, the government will not hesitate to use the full force of the police-state apparatus built up during decades of war against any resistance by the working class to attacks on jobs and living standards.

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