Proceedings of Tuesday
Ms.Kshenuka Seneviratne, Sri Lanka’s Permanent Representative to the UN in Geneva this week told the High Court Trial-at-Bar hearing the case against former Army Commander Sarath Fonseka that the Government has yet to respond to a letter sent by the UN seeking clarification about comments of Mr. Fonseka that the Defence Secretary had ordered the killing of Tiger leaders who came to surrender. Ms. Seneviratne said the initial response sent to the UN was withdrawn three days later, but so far a fresh response has not been sent.
The High Court Trial-at-Bar Bench comprises Deepali Wijesundara (President), W.T. M. P.B. Warawewa and M.S.Razeen.
Deputy Solicitor General (DSG) Wasantha Nawaratna Bandara: Do you work as Sri Lanka's Permanent Representative to the UN office in Geneva?
Ms. Kshenuka Seneviratne (KS): Yes.
DSG: Are you a diplomat by profession?
KS: I joined the diplomatic service in 1985.
DSG:When were you appointed Permanent Representative to the UN office in Geneva?
KS: On November 15, 2009.
DSG: Where is your office located?
KS: In Geneva.
(DSG shows The Sunday Leader of December 13, 2009 which carries the interview with former Army Commander Sarath Fonseka under the headline ‘Gota ordered them to be shot’ to Ms. Seneviratne)
DSG: Did you read this newspaper?
KS: I read it on the internet on December 13, 2009.
DSG: Were you aware that it was on the internet?
DSG: Anybody who accesses the internet could read this news item.
DSG: Did the UN officials seek any clarification about this news item?
KS: Yes, there was a clarification sought by Mr. Phillip Alston, Special Rapporteur of the UN Commission on Human Rights.
DSG: Did he seek a clarification about the news item which appeared in The Sunday Leader?
KS: Yes, the clarification was sought from me on behalf of the Sri Lankan Government.
DSG: The letter seeking the clarification was sent to you.
KS: He had addressed the letter to me on behalf of the Sri Lankan Government.
(DSG sought court permission to mark the document sent by Mr. Alston and include it to the Court records. Permission was granted)
Judge Warawewa: I cannot understand the sequence of this letter.
DSG: This is the manner in which correspondence is done.
Judge Warawewa: It cannot be understood.
DSG: It is a continuation. I will ask the witness.
Judge Warawewa: Whom is it addressed to?
DSG: This has been sent to the witness. The name of the witness is mentioned in the first and last parts of the letter and signed by Mr. Philip Alston.
DSG: Is this is the normal way you receive such letters from the UN?
DSG: Doesn’t the second paragraph read as “With regard to the circumstances of the death of three senior representatives of the Liberation Tigers of Tamil Eelam (LTTE), Mr. Balasingham, Nadesan, Mr. Seevaratnam Pulidevan and Mr. Ramesh as well as members of their families on the nights of May 17 to 18, 2009”?
Was it a clarification about the manner in which the deaths of Nadesan, Pulidevan and Ramesh occurred on 17th or 18th night?
|Ms. Kshenuka Seneviratne leaving Courts after giving evidence on Tuesday. Pic by J. Weerasekera
(DSG reads another part of the same letter)
“When Messrs, Nadesan, Pulidevan and Ramesh walked towards the SLA positions carrying white cloths in the first hours of May 18 2009, soldiers opened fire on them and killed them. An unspecified number of family members of the three men were killed as well”.
“These allegations were made by the Commander of the Sri Lanka Army at the time of the events and subsequent Chief of Defence Staff (now retired) General Gardihewa Sarath Chandralal Fonseka, in an interview to the newspaper The Sunday Leader. The accounts of journalists embedded with the SLA 58th Brigade confirm some of the alleged circumstances of the death of Messrs Nadesan, Pulidevan and Ramesh and their families”.
DSG: This has been disclosed in an interview by Mr. Fonseka to The Sunday Leader.
DSG: The clarification was sought on this matter.
DSG: What are the steps you had taken after you received this letter?
KS: Keeping with the practice I forwarded copies to the Secretary, Ministry of Human Rights and Disaster Management, Secretary, Foreign Ministry, Secretary, Defence and the Attorney General.
DSG: When did you receive this letter?
KS: Five days after the article was published.
DSG: Did you see the magazine of May 17, 2010 under the heading ‘War Crimes in Sri Lanka’ published by the International Crisis Group?
DSG: What is this institution known as the International Crisis Group?
KS: It is an NGO. They do analysis when there is a crisis. They work with policy makers and governments. Currently the Executive Director is Louis Arbour. She was also the UN High Commissioner for Human Rights. She served as a prosecuting officer at International Tribunals. She also appeared on behalf of the prosecution in cases against Yugoslavia and Rwanda.
DSG: How does the International Crisis Group get funds?
KS: Funds are provided by Western countries and other developed nations.
Among the Trustees of this organization have been former UN Secretary General Kofi Annan and Sir Christopher Patten who served as the Commissioner for External Relations to the European Commission.
DSG: When was this report published?
KS: It was published on May 18, 2010.
(The magazine was marked as a court document and Page 7 was shown to the witness)
DSG: Does this carry the charges made by Mr. Fonseka?
KS: It says that the President’s brother – Defence Secretary Gotabaya Rajapaksa - ordered to kill the Tigers (LTTEers) coming with white flags to surrender.
DSG: Has this paragraph been explained in a footnote?
DSG: Does this explanation say ‘Gota ordered them to be shot - General Sarath Fonseka’?
DSG: Does this mention the allegations made by Mr. Fonseka?
DSG: Does this report mention about the December 13 article as well as the clarification made on December 20?
DSG: The report carries comments about Tiger leaders surrendering and orders to shoot them and about the clarification.
DSG: The report refers to orders to shoot the Tiger leaders surrendering.
DSG: The clarification says that such an order was given, but it was not carried out.
DSG: When was the Crisis Group report out?
KS: On May 17, 2010.
DSG: It is one year after the war ended.
DSG: What do you feel about this report?
KS: There are many points that have drawn international attention.
DSG: You mean the news published in the Leader has got international attention.
DSG: What does Ms. Louis Arbour say about that?
KS: Ms. Arbour is the Executive Director of the Group and she has made comments about Sri Lanka when she was the UN High Commissioner for Human Rights.
Judge Warawewa: Can this report be seen on the internet?
DSG: In your official capacity how did you see this report?
KS: After news reports appeared I downloaded it from the internet.
DSG: As an official of the Foreign Ministry do you monitor the internet to see if the reputation of Sri Lanka has been tarnished?
KS: Yes, that is part of my routine duties.
DSG: Is there a connection between the report in the internet and the item published in The Sunday Leader.
DSG: Do you say that what has been published in The Leader has also been published on the internet?
(DSG ends leading evidence of Ms. Seneviratne).
Cross examination by Defence Counsel Nalin Ladduwahetti (NL).
NL: Why are you answering in English when you can speak Sinhala fluently?
KS: Yes. But as I am explaining about international affairs it is easier to respond in English.
NL: Haven’t you forgotten Sinhala?
NL: When has this letter been received?
KS: On December 18.
NL: Did you send a response to the letter?
KS: No. However the Secretary of the Ministry of Human Rights and Disaster Management sent a response to the Geneva office on December 29, 2009. Two days later the letter was withdrawn on the grounds that it was incomplete.
NL: Along with the letter was the clarification of The Sunday Leader sent?
KS: No. Since we had not done a full investigation on the matter, we informed that after a full investigation we will respond. Also the UN Human Rights Council was informed that a detailed report will be sent.
NL: Did you send a response in three days?
NL: Was it sent by Dr. Rajiva Wijesinha?
KS: Yes. Mr. Fonseka’s explanation was mentioned in that. Though there was a mention about the clarification in The Sunday Leader of December 20 it was not a detailed reply.
NL: Was that letter withdrawn by December 23?
NL: As you mentioned there were shortcomings in that letter.
KS: Yes, because this was not discussed with the relevant parties.
NL: When did you send a response after rectifying the shortcomings?
KS: I cannot remember the exact date when the first letter was withdrawn. It should be between 22nd and 24th. If I could refer to the file I could give the exact date.
NL: I have no objections.
KS: (Refers to the file) The first letter has been sent on December 22 and the response on December 24.
NL: When was the letter completed and a response sent?
KS: We said that the Sri Lankan Government will carry out an investigation and send a response in the near future.
NL: When did the ‘near future’ dawn?
KS: Investigations are still underway about this matter. Therefore, we could not send a proper response. The Lessons Learnt and Reconciliation Commission is carrying out that work.
NL: You mean that for the letter of December 19, 2009 a response has not been sent as yet?
KS: Yes. We have not responded as yet. This response should be sent after relevant sections look into this. They are still looking into the matter.
NL: You mean they are still looking into the matter after withdrawing the letter they sent two days later?
NL: You mean the letter sent mentions that the reports published have not been fully investigated?
NL: Has a response been sent now?
NL: So far no final assessment has been made about the points in the letter you produced?
KS: Yes, that is the current situation.
NL: Who has written the article published by the International Crisis Group (Asia Report)? Is there a name of the writer?
NL: You have been sent a report without a signature.
KS: There is no signature in this report.
(Footnote of the report read out in courts)
The report reads as; “Major General Jayasuriya was the Wanni Commander from August 2007 through the end of the war. President Rajapaksa promoted him to Lieutenant General and appointed him as Army Commander in July 2009, replacing Sarath Fonseka. According to Gotabaya Rajapaksa “General Fonseka was responsible for the tactical planning of all areas in the Army. He personally supervised, day and night on how the battle was moving forward. Having him as the Commander of the Army was a decisive factor for us. He is an experienced officer and throughout his career he has been involved in anti-terrorist activities and all the major battles during the span of the war… President Mahinda Rajapaksa recognized the capability and ability of General Sarath Fonseka and that is why he appointed General Fonseka as the Army Commander… General Jagath Jayasuriya who is the Security Forces Commander, Wanni coordinated operations from the beginning until the end.”
(Cross examination of Ms. Seneviratne ends)
(DSG re-examines Ms. Seneviratne)
DSG: Is it necessary that the report by the International Crisis Group: Asia Report is signed?
KS: Normally such reports are not signed. However the cover page carries the serial number.
DSG: Is this report especially on Sri Lanka?
NL: Is this a report on war crimes in Sri Lanka?
DSG: What is the connection between the Lessons Learnt and Reconciliation Commission and this report?
KS: There is expectation that the Commission will go through this report and give its response.
DSG: Do you expect the contribution from this Commission to send an explanation as the response?
KS: Yes, we believe that this Commission will look into this.
Proceedings of Wednesday
The High Court Trial-at-Bar on Wednesday ordered Derana TV to produce the original copies of the speech made by former Army Commander Sarath Fonseka during the Presidential election campaign rally in Ratnapura.
The directive was given when the Defence Counsel for Mr. Fonseka objected to extracts of the speech used in the news bulletin being produced in courts.
Deputy Solicitor General Wasantha Navaratne Bandara told Court that the Defence Counsel had been given sufficient time to object to presenting the relevant tapes as they were handed over 45 days earlier.
Defence Counsel Nalin Laduwahetti told Court that under the Evidence Ordinance, the original or copies taken from the original should be presented in Court. He said that Mr. Fonseka had never made a speech of one minute and thirty seconds but instead had made a speech in Ratnapaura lasting 45 minutes.
He said, therefore, taking extracts from the speech could lead to a distortion of the original meaning.
He said under the law the original or copies taken from it should be submitted to Court.
Thereafter, Derana TV Correspondent for Ratnapura Kanchanamal Kudagama (KK) was called to give evidence. He said he had been working as a Correspondent for Derana TV in Ratnapura district since 2002. He said on December 23, 2009 he covered the rally addressed by Mr. Fonseka in Ratnapura.
DSG Wasantha Navaratne Bandara: Did you go to the rally in a private capacity?
KK: I went there with other journalists.
DSG: Where was the rally held?
KK: In front of the Ratnapura police (station).
DSG: Did you record the full speech of Mr. Fonseka?
KK: I was doing a difficult job, taking care of the cameras and batteries. I did not pay attention to the speech.
DSG: Did you listen to his speech?
KK: I did not hear anything.
DSG: Did you record the speech of the accused (Fonseka) in full?
DSG: How did you record it?
KK: Using my video camera.
DSG: What did you do after that?
KK: I sent it to the Derana TV.
DSG: What is the tape you used?
KK: A video tape.
DSG: Where did you send the tape?
KK: I sent three tapes to my office.
DSG: Which section did you send it to?
KK: The News Division.
DSG: Did you know that it was used for news?
DSG: Was that news telecast?
KK: I am not sure about that. In my area the Derana channel cannot be seen.
DSG: Were you paid Rs. 1,750 for this?
DSG: Are you aware that your recording was telecast?
DSG: Was your statement recorded by the CID?
DSG: Did they show you the video you had recorded?
DSG: Do you agree that the particular part shown to you was recorded by you?
(At this point the DSG requested that the tapes be marked as a production in this case).
Defence Counsel objected.
He said that the original recording cannot be changed and that the witness’s statement shows that only a part of the speech made on December 23, 2009 by Mr. Fonseka at Ratnapura, was shown to him. He says that it has been edited.
DSG: These tapes were given to him 45 days earlier. He could have made objections earlier.
NL: I had no reason to request to examine the tapes as they were not original tapes. The Ordinance clearly says that the originals cannot be changed. I am questioning whether these tapes have been edited.
DSG: No. Though this is not the original copy, it has been taken from the original.
Judge Warawewa: The witness said that he saw a part of it. But where is the original?
DSG: After the witness handed over the tape to Derana TV the relevant section had been taken and the tapes returned to the witness. He has recorded over that.
NL: The Evidence Ordinance says that originals should be submitted. Therefore submit the original without submitting the edited parts.
DSG: The Defence had 45 days to ask the Government Analyst to examine whether the tape was the original. He has not done that.
NL: There was no necessity to do that. The witness himself says that this is only a part of the original. The Evidence Ordinance says the original or a copy of it could be submitted. If the original or a copy is edited, it cannot be accepted.
Panel of judges: Do you have the tape containing the speech in full?
KK: No, I did not get it back.
DSG: It is not correct to say that the original should be produced. The Ordinance says that it should be the original or a copy. Since a copy is being produced, the original is not necessary.
Judge Warawewa: What does ‘Prathiuthpadanaya’ mean?
DSG: It should be a copy of the original but not edited.
Judge Deepali Wijesundera: Therefore produce the original.
DSG: The relevant section had been taken for the news bulletin and the rest had been deleted.
Judge Warawewa: Can the Derana organization produce the original?
DSG: I obtained this from Derana on a Court order. They say that they do not have the original.
NL: This tape has only part of the full speech of 45 minutes. If a person says that “I did not kill”, and the word ‘did not’ is deleted it would mean that he did kill. Therefore the original meaning can be distorted.
The panel of judges considering the views of the Prosecution and Defence ordered the Derana TV station to produce the original.
The next hearing was put off for tomorrow,