Gota regrets appointment of Fonseka

‘White Flag’ Trial-at- Bar
By Manopriya Gunasekara

Defence Secretary Gotabaya Rajapaksa this week told the High Court Trial-at-Bar in the ‘White Flag’ case that initially he thought former Army Commander Sarath Fonseka was the correct choice for the job, but later felt it was a wrong decision.

During cross examination by Senior Defence Counsel Nalin Ladduwahetti, Mr. Rajapaksa said that the statement made by the former Army Commander Sarath Fonseka to The Sunday Leader newspaper caused problems for the country.

Mr. Fonseka is charged with having stated in an interview with the newspaper that the Defence Secretary had ordered not to spare any of the LTTE cadres surrendering even if they were coming with white flags during the last stages of the military assault on the guerrillas in May, 2009.

He is charged for making a false statement to The Sunday Leader, arousing communal and anti-government feelings and creating disputes among the public.

The Trial-at-Bar consists of Judges Deepali Wijesundara (President), W.T.M. P.B. Warawewa and M.S.Razeen.
Deputy Solicitor General (DSG) Buwenaka Aluvihare led the evidence of Defence Secretary Gotabaya Rajapaksa (DS-GR).
DSG: Since when have you been working as the Defence Secretary?
DS-GR: Since November 27, 2005.
DSG: The Armed Forces and the Police come under the Defence Ministry.
DS-GR: Yes.
DSG:You are the Secretary.
DS-GR: Yes.
DSG:When you took over as the Defence Secretary was the LTTE active?
DS-GR: Yes.
DSG:Is it correct that the LTTE has been banned by some countries?
DS-GR: Correct.
DSG:Is it correct that the LTTE was very strong in the North and the East at the time you took over?
DS-GR: Yes.
DSG: Is it correct that the LTTE claimed it was representing one particular community?
DS-GR: Yes.
DSG: Is it correct that the north and east areas are predominantly Tamil areas?
DS-GR: Yes?
DSG: Is it correct that most of the LTTE members were Tamils?
DS-GR: Yes.
DSG: The LTTE had declared ‘war’ against the Sri Lankan government.
DS-GR: Yes.
DSG: In 2009 the ‘war’ situation reached a crucial stage.
DS-GR: Yes.
DSG: Between May 14 and 18 (2009) Government forces were able to capture the areas held by the LTTE.
DS-GR: Yes
DSG: As the Defence Secretary you co-ordinated this operation.
DS-GR: Yes.
DSG: Who was the Commander of the Army in May 2009?
DS-GR: General Sarath Fonseka.
DSG: Is he in Court today?
DS-GR: Yes
DSG: Can you identify him?
DS-GR: Yes.
DSG: In June 2009 was Mr. Fonseka appointed as the Chief of Defence Staff?
DS-GR: Yes.
DSG: Did he retire in 2009 during the November-December period?
DS-GR: Yes.
(The Sunday Leader newspaper of December 13, 2009 was shown to DS-GR at this point)
DSG: Have you seen this newspaper earlier?
DS-GR: Yes.
DSG: Have you read the news item which is relevant to this case?
DS-GR: Yes.
DSG: Could you see that one particular paragraph is marked?
DS-GR: Yes.
DSG: Can you read it?
DS-GR: Yes.
DSG: Could you comment about its content?
DS-GR: It is completely false.
DSG: Could you see another place marked in the same article?
DS-GR: Yes.
DSG: Could you comment about its content?
DS-GR: That too is false.
(The continuation of the article is shown)
DSG: There is a place marked ‘A 3’- could you comment on its content?
DS-GR: That too is false.
DSG: Is it mentioned that you telephoned former Brigadier Shavendra Silva and gave orders?
DS-GR: The news item that I gave orders to kill Tiger leaders Nadesan, Pulidevan and Ramesh when they came to surrender with white flags is completely incorrect. As a government we had mentioned that those who come to surrender should be treated well. By this time 11,968 Tigers had surrendered to us, we treated them according to the law and 5,600 have been re-integrated into society.

Former Army Commander Sarath Fonseka leaving court on Tuesday after the day’s sittings. Pic. by Sanka Vidanagama

Among those arrested were LTTE spokesmen, Daya Master and George Master. Females and also five doctors have been re-integrated into society. Thamilselvan’s wife too surrendered. Some have been rehabilitated.
DSG: Would you have known if things mentioned in the article actually did take place?
DS-GR: If there was such a shooting incident, I would have definitely known about it.
DSG: Up to date have you heard any such thing?
DS-GR: No.
DSG: The accused Sarath Fonseka served until December 2009. Did he clarify from you about this during that period?
DS-GR: No.
DSG: You mentioned that 11,568 LTTE cadres surrendered.
DS-GR: Yes
DSG: They disguised themselves as civilians and came.
DS-GR: Yes, most of them have been rehabilitated.
DSG: Were Daya Master and George Master identified as LTTE members?
DS-GR: Yes.
DSG: Were they too rehabilitated?
DS-GR: Yes.
DSG: Did Thamilselvan’s family surrender to the Army?
DS-GR: Yes.
DSG: Is it correct to say that even as of today they are safe?
DS-GR: Yes.
DSG: Are you aware that Tamils from Sri Lanka who have travelled overseas have created a diaspora?
DS-GR: There are about one million Sri Lankan Tamils living overseas mainly in countries such as UK, US, etc. They have formed a diaspora. After this news item saying that the Army shot at persons coming to surrender appeared they made allegations and protested. The Army faced serious problems. Aid too stopped.
DSG: There was pressure on the Government.
DS-GR: This has been a continuous problem. There is pressure on us to investigate these matters. After this appeared there was disharmony among people within the country too.
DSG: Has the government taken steps to eliminate this disharmony?
DS-GR: Yes.
DSG: Is the appointment of the Lessons Learnt and Reconciliation Commission one such step?
DS-GR: Yes.
DSG: Who has provided the information to The Sunday Leader to publish the particular news item?
DS-GR: The former Army Commander. Unlike others, when the Army Commander makes a statement everybody believes it. This turned out to be a major problem for us. We were questioned about this at media conferences.
DSG: Did you make a statement to the CID about this?
DS-GR: Yes.
(Leading evidence of Defence Secretary ends).
Cross-examination by Senior Defence Counsel Nalin Ladduwahetti (NL) commences.
NL: Is it correct that The Sunday Leader publishes all falsehoods?
DS-GR: I can’t say that.
NL: News items published by The Sunday Leader about you are false.
DS-GR: Some are correct, some are wrong.
NL: The items about you are false.
DS-GR: Some are correct, some are wrong. Not only The Sunday Leader, some other papers have also published falsehoods.
NL: The MiG deal?
DS-GR: That was false, therefore I took the matter to Court.
NL: You had obtained an injunction order on The Sunday Leader as it was publishing falsehoods about you.
DS-GR: That’s correct.
NL: You obtained an injunction as it was maliciously publishing things about you.
DS-GR: Those are not relevant to this case. Therefore questioning me about those things is not correct, isn’t it?
NL: This is a case about The Sunday Leader. You have filed action against The Sunday Leader. That is the reason I asked that.
(Mr. Laduwahetti explained to Court that the objection was raised about the question by the witness and not the counsel for the prosecution. Therefore there was no legal issue on the question. He said this was not the first time the case filed by the witness in the Mt. Lavinia Court had been discussed as when Ms. (Frederica) Jansz (Editor, The Sunday Leader) was cross- examined these matters were raised and she had answered and the former DSG on behalf of the prosecution did not object.
The basis for this case and the case in the Mt. Lavinia Court were articles published in The Sunday Leader and the main person in that case is the Defence Secretary. Therefore the Court should decide whether The Sunday Leader was maliciously publishing false news against the witness.
Since Ms. Jansz has accepted that the news published was false, if the other news too were false, the Court should consider how this differs.
We should consider how this differs from other items. That is the reason I had to question the witness on this.
Defence Secretary Mr. Rajapaksa addressing Court said after The Sunday Leader published the news item the statement was made over a television station.
DSG: The witness did not object. What he asked was whether it was relevant to this case. It is the Court which should decide whether the question could be allowed or not.
Judge Warawewa: The witness cannot object to the question.
NL: I have asked this from Ms. Jansz. What I am asking is, what are the reasons for filing that case?
Cross examination recommences.
NL: You have filed two cases against The Sunday Leader.
DS-GR: Yes.
NL: Have you filed action against other newspapers?
DS-GR: No, It is a waste of time to go to Courts. Otherwise for everything you can file action. Even this is wasting my time. When I waste my time I do not have time to perform my duties.
NL: Wasting time or not, you haven’t filed action against any other newspaper.
DS-GR: Yes.
NL: There is an injunction order not to publish anything about you.
DS-GR: Yes.
NL: This article has been published when there was an injunction order.
DS-GR: I can’t understand your question.
NL: There is a case that something false about you has been published.
DS-GR: Yes, that is the case. There aren’t two cases.
NL: There are two case numbers. The article of December 13, 2009 has been published when there was an injunction order.
DS-GR: The injunction order had been taken some time back.
NL: Is it correct that during the final three and half years of the military operations Mr. Fonseka was the Army Commander?
DS-GR: Correct.
NL: Mr. Fonseka contributed to the success of the ‘war’ (military operations).
DS-GR: I cannot express an opinion about that.
NL: Why is that? Didn’t he make a contribution?
DS-GR: Any Commander should make a contribution. That’s why we appoint him.
NL: Did you praise him for his contribution in ending the ‘war’ (military operations) after it ended?
DS-GR: No.
NL: Did you say that as the Army Commander was clever, we ended the ‘war’?
DS-GR: Not only him, the Air Force and the Navy Commanders also made a contribution.
NL: Did you give an interview to the Business Today Magazine?
DS-GR: You are correct.
NL: The interview appears in page 14.
DS-GR: The person interviewing me asks a question whether he (Fonseka) fought the war well. Here there is a difference I also speak about the Air Force and Navy Commanders.
NL: Can you say what is in the article?
DS-GR: The Commander is responsible for military operations. So is any Commander.
(Reads from the Business Today - June 2009)
“Q: The success of the Army during the last three years is largely because of the unwavering strength of the Army Commander General Sarath Fonseka. Can you give your views on that?

A: My sincere appreciation goes to the Army Commander, as I described before it was the Army which bore the brunt of the battle. General Fonseka was responsible for the tactical planning for 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. Therefore, he has a very good knowledge of the enemy. This was a very important factor because he knew how the LTTE would react, what their plans were and how they would fight. Thus the Commander was always a step ahead.

General Fonseka knew the capabilities of his men. Therefore he selected his officers to command the division according to merit and not purely on seniority. He knew the capabilities of the men who could perform well. This was a very important factor that produced results. During instances where officers were not performing well, he immediately took action and appointed new officers. There were a few instances like that, which show how closely he was monitoring and identifying people who could bring in results. This was very important.

His commitment, experience, knowledge and also the way he performed was very important in this whole campaign. Therefore selecting General Fonseka was an extremely important decision.
President Mahinda Rajapaksa recognised the capability and ability of General Sarath Fonseka and that is why he appointed General Fonseka as the Army Commander. Usually an Army Commander serves for four years. However, when President Rajapaksa took over office, the Commander was Lt. General Shantha Kottegoda. He had not completed even two years of service but President Mahinda Rajapaksa called him and explained to Lt. General Shantha Kottegoda that he had nothing against him as he knew him very well but he wanted a person like Sarath Fonseka to command the Army because he knew the capabilities of General Sarath Fonseka. Actually in the end, it proved to be the right decision as it produced results”.

DS-GR: He was appointed as Army Commander by the President two weeks before he retired. He served in the Army for 30 odd years holding various positions, but he could not end the ‘war’ (military operations). I spoke about the Army Commander who was under me.
NL: You have not made any false statements about the Army Commander.
DS-GR: I have a methodology to raise the morale of the soldiers. The morale of the soldiers had fallen. This was one thing I did.
NL: Answer the questions and then the explanation can be given.
DS-GR: This is not a ‘yes – no’ answer question. Therefore I need to give a clear explanation.
NL: Did you mention something false about the Army Commander?
DS-GR: I spoke about the Army Commander.
NL: Were those accurate statements?
DS-GR: I do not lie.
NL: That’s what I was wondering as to why you were trying to evade.
DS-GR: I did not evade.
NL: I was questioning you about the interview to the Business Today magazine.
DS-GR: Senior appointments in the Army are made by the President. Some names are discussed with the Commander and sent to the President who is the Commander-in-Chief. We do not go to explain everything in an interview.
NL: Does the Commander recommend some names?
DS-GR: Some names are recommended, thereafter we go through the names and inform the Commander-in-Chief.
NL: Did you think the appointment of Sarath Fonseka as the Army Commander was a correct decision.
DS-GR: At that time I thought it was correct, but later I thought it was wrong.
NL: When was that?
DS-GR: Most of the time, but we did not go to say that.
NL: Can you give a date?
DS-GR: I cannot remember a date.
NL: (pointing out to the Business Today Magazine) Have you mentioned about the Navy and Air Force Commanders?
DS-GR: Yes.
NL: Were those comments as they were officers or were they based on genuine evaluation?
DS-GR: Both of them are good persons.
NL: (shows a letter written by Philip Alston, (Special Rapporteur of the United Nations Commission on Human Rights to Ms. Kshenuka Seneviratne (Permanent Representative of Sri Lanka to the United Nations Office at Geneva) – Have you seen this letter?
DS-GR: Yes.
NL: Has the Government sent a response to the letter of December 18, 2009?
DS-GR: It may have sent a response.
NL: Aren’t you aware that a response was sent and it was recalled?
(DSG objects to the question.)
NL: Did The Sunday Leader clarify from you before the article was published?
DS-GR: No.
NL: Was there a message for you to call back?
DS-GR: I cannot recall.
NL: As the Defence Secretary when some one calls you, doesn’t your office leave a message?
DS-GR: (Showing his mobile phone to Court) This phone number was known by the Tigers as well. Even they call. I did not get a call. If I had got a (missed) call I would have called back.
NL: Was Kumaran Pathmanathan (KP) arrested?
DS-GR: Yes.
NL: No legal action has been taken against him so far.
(DSG raises objections)
DS-GR: Due to the efficiency of our intelligence officers ‘KP’ was arrested overseas and brought to Colombo. Investigations are still underway. If details about him are released it would be a disgrace to the Intelligence Service.
NL: Have you made any statement that the world’s best General was Sarath Fonseka?
DS-GR: I had mentioned what someone else had said.
NL: Can you give the name?
DS-GR: I can’t.
NL: Did you retire from the Army?
DS-GR: Yes, in 1991.
NL: How long you were in the Army?
DS-GR: About 20 years.
NL: Why did you retire?
DS-GR: On personal grounds.
(Cross examination ends. DSG re-examines the Defence Secretary)
DSG: Did you say that the news report (The Sunday Leader report) was false?
DS-GR: I held a press conference and said that.

Further hearing has been fixed for February 7.

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