The success of former General Sarath Fonseka, who led troops to military defeat of Tiger guerrillas, became the strong glue that bonded major opposition political parties together. Bitter opponents for decades hugged each other in a rare display of unity. Fonseka became their celebrated presidential candidate.
Now the former General and war hero is a convict. He has already served 23 days of a 30-month sentence. A Warrant issued to the Commissioner General of Prisons Major General (retd.) V.R. de Silva by President Mahinda Rajapaksa states that the term of rigorous imprisonment started from September 17 - the day a General Court Martial found him guilty of "disgraceful conduct" over procurements. If one expected the jailing of Fonseka to further re-inforce the glue that bound the opposition parties together earlier, that was not to be. It appears to be peeling away.
Despite its own internecine problems, the United National Party (UNP) seized the opportunity to run its own campaign. Last Monday, Opposition Leader Ranil Wickremesinghe shot off a letter to President Mahinda Rajapaksa. This is what he said:
"Your Excellency
CONVICTION AND SENTENCING OF A MEMBER OF PARLIAMENT WHO HAD RENDERED SERVICES TO THE NATION
"I write with reference to the conviction and sentencing of General Sarath Fonseka to a term of imprisonment of 30 months and your subsequent confirmation of the verdict as the relevant authority under the Army Act.
"I however wish to address you in the context of your statement when you met members of the Maha Sangha at Polonnaruwa where you are reported to have stated that you would consider an appeal if made according to the proper procedures. General Sarath Fonseka is a Member of Parliament sitting in the Opposition Benches and therefore I consider it my duty to make this appeal to you regarding his conviction and sentence.
"As you are well aware General Sarath Fonseka, MP, served the nation with honour and distinction and as the Commander of the Army was responsible for defeating the LTTE on the ground. He not only faced the LTTE with bravery and fortitude but nearly sacrificed his life in the service of his motherland. For these reasons he had been decorated with Military awards for distinguished services which have not been challenged by anyone.
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| Sarath Fonseka in prison jumpers |
"We in the Opposition having taken into account the services rendered to the country by General Sarath Fonseka, MP, are of the view that he should not be serving a sentence of imprisonment.
"It is our considered view that these acts do not serve the ends of justice.
"In these circumstances, I as the Leader of the Opposition acting on behalf of a Member of the Opposition appeal to you to exercise your Presidential prerogative under the Constitution or alternatively under Section 65 of the Army Act to remit the whole sentence.
"We in the Opposition are firmly of the belief that General Sarath Fonseka's, MP, civil and military status should be also restored."
Wickremesinghe's letter was prompted by references in the Sunday Times political commentary last week. It revealed how Ven. Habarana Rathana Dhamma, the Chief Incumbent of the Sri Priyadarshanaramaya in Polonnaruwa told Rajapaksa they had no objections over the sentence passed on the former Army Commander Fonseka. Here are the relevant extracts: "The decision is correct. If Fonseka was heading the country we know what would have happened to the Rajapaksas, he said.
"Rajapaksa promptly responded: I am not a person who engages in revengeful politics. Whenever revengeful things were told against me on political stages during the election campaign, I have never spoken in a revengeful manner. I have only acted in the capacity of the head of the armed forces in maintaining discipline of the Army. These are legal acts, Rajapaksa added, constitutionally there is a manner how pardon could be given. If there is a plea for pardon, I am ready to consider it."
Section 65 (d) of the Army act empowers the President to grant a pardon. The provision says he could:
- Mitigate the punishment to a less amount of the same punishment.
- Remit the whole or part of the punishment.
- Commute the punishment to a different form of punishment lower in the scale of punishments authorised in the Army Act.
- Suspend for such time as he may determine the execution of the sentence, and
- Where the sentence is one of imprisonment or detention passed on a soldier, confirm, the sentence and direct that the soldier be not committed to prison or detention barracks until the order of a superior military authority referred to in section 68 has been obtained.
In accordance with Article 34 (1) of the Constitution, the President "may in the case of any offender convicted of any offence in any court within the Republic of Sri Lanka", among other matters, could grant a pardon, either free or subject to lawful conditions. He could also substitute a less severe form of punishment for any punishment imposed on such offender or remit the whole or any part of any punishment imposed.
Wickremesinghe's letter was to have its immediate sequel. Presidential Secretary Lalith Weeratunga telephoned the Opposition Leader's Secretary Naufel Abdul Rahman. He wanted to know whether Wickremesinghe had written the letter with Fonseka's consent. Rahman checked with Wickremesinghe and confirmed it has been conveyed to Fonseka.
On Tuesday, Wickremesinghe read out in Parliament the letter he had sent to President Rajapaksa. The same evening he visited the Welikada maximum security prison to speak to Fonseka. He was ushered to a waiting room by a prisons official. There, the former Army Commander turned up wearing a jumper, a standard issue to all convicts. "This is my new uniform," he quipped. The duo spoke about Fonseka's request for a special diet since he had several restrictions due to the wounds he sustained after a suicide bomber attacked him. This was inside Army Headquarters on April 25, 2006. Fonseka was being driven from his office to his chalet for lunch when a Tiger guerrilla suicide bomber who posed off as a "patient" threw herself to his car. Fonseka sustained serious injuries whilst eight soldiers were killed.
Major General (retd.) Silva, the Commissioner General of Prisons, told the Sunday Times: "Mr. Fonseka met me on Thursday for five minutes. It was on his request. He inquired about the facilities to exercise. I explained that we cannot provide him with exercise machines, but he was free to carry out any exercise within the cell where he is held. The court order did not mention providing any exercise machine.
"The doctors had said that he could be provided an opportunity to get himself admitted to the prison hospital, but Mr. Fonseka has declined that offer. On the advice of the doctors, he has been given a Journey mat, which is one-and-half inch thick. There are no separate meals provided to him. It is the same meals provided to other prisoners, but there is a special team assigned to check his food before giving it to him. This is part of the security measures.
"I have also spoken to the IGP and the Minister of Prison Reforms (D.E.W. Gunasekara) and taken steps to increase his security within the prisons. I have also sent a letter to the Army Commander requesting that all his medical reports be sent to the Prisons so that he could be given medical attention accordingly. He said that so far no work has been assigned to Fonseka."
Wickremesinghe told the Sunday Times "During our conversation, I read out the letter to Fonseka. He nodded his assent. Janatha Vimukthi Peramuna (JVP), the main constituent of the Democratic National Alliance (DNA), was incensed. "The position taken up by Wickremesinghe that the letter to the President seeking to remit the sentence of Fonseka was discussed with anyone in the DNA is not correct," said JVP Gampaha district parliamentarian Vijitha Herath said. He said there were also incorrect reports that Wickremesinghe had spoken about this to Anura Kumara Dissanayake (JVP - National List). Herath said Dissanayake left on an overseas visit on September 26. Though the Court Martial had made its recommendations to the President, by that time he had not signed or approved the recommended sentence'.
Herath said it was only after Wickremesinghe sent the letter to the President and read it out in Parliament that he had spoken about it to Fonseka on Tuesday evening. It is clear that no prior consultation was held with the DNA or even with Fonseka.
Fonseka's wife, Anoma, told the Sunday Times, " My husband said that when the opposition leader visited him in prison last Tuesday, he had informed him that he had sent a letter to the President asking him to release him. Until then, he was unaware of it. Even I was not aware that he was sending such a letter.
"I visited my husband on Friday and he told that neither our daughters nor I should ask for a pardon as he had done no wrong. He said he would do what had to be done through the legal system.
That made clear the DNA (or even the JVP) did not endorse the action by Wickremesinghe.
On Wednesday, however, Wickremesinghe argued at a news conference, "There is no mention that Fonseka himself should make an appeal for his release. It could be his family members, or any group representing him." Under the Constitution and the Army Act, the President could decide on his own, he said.
The DNA's position articulated by JVP's Herath and Anoma Fonseka is based on the argument that seeking a pardon now would only mean admission of guilt over the charges preferred against Fonseka. The former General refused to acknowledge the two General Courts Martial that tried him over charges of "dabbling in politics" and for "disgraceful conduct" over procurements. His legal counsel also took up the position that their client (Fonseka) did not recognise the two GCMs. Having taken that stance, seeking a pardon of any sort, the JVP believes, would amount to giving "legality to the General Courts Martial, the charges preferred, the findings and the sentences recommended." Hence, they say they want to go to courts to challenge the move.
As revealed last week, Fonseka told the GCM just ahead of its delivering the guilty verdict on September 17, "I don't agree with the verdict. I don't think justice was done and justice was never done here. It was disgusting; the whole process of justice was never done here………. I would be frightened to go to jail after doing wrong. However, without doing wrong, I am not frightened to be in jail. All should know that without fear I would even go to 100 jails."
Last Sunday, the UNP organised a Seth Kavi at a temple in the Dompe electorate. Wickremesinghe had invited Anoma Fonseka to take part. She telephoned him that day to say she was unable to attend in view of a news conference in Colombo. By then, the DNA had teamed up with some civil society groups to form the People's Movement for Democracy. Neither the UNP nor the Sri Lanka Muslim Congress (SLMC) which backed Fonseka during the presidential elections was in it.
Yet, Wickremesinghe responded to a call by Ms Fonseka on Sunday night. She wanted the presence of UNP parliamentarians in Hulftsdorp when hearings against Fonseka at a trial at bar were to resume. She also invited him to come over to the Fort Railway station where a petition seeking the release of Fonseka was signed. Wickremesinghe obliged. He stood below a banner, which bore the name People's Movement for Democracy. So did his deputy, Karu Jayasuriya. In effect, Wickremesinghe who sought from President Rajapaksa to "remit the sentence" on Fonseka also signed the petition calling for his unconditional release.
On Friday, Wickremesinghe and his deputy Jayasuriya, joined a crowd of some 300 mostly UNP supporters to paste posters. Symbolically, it was a move to defy the Police order to arrest those doing so. Besides these supporters, only Wickremabahu Karunarartne, leader of the New Left Front was present. They walked a little distance in the direction of Lake House but Police had placed barricades. The protest ended.
Thus, the nuances in official positions taken up by the UNP and the JVP are very clear. Both wanted Fonseka released but were diverse in their ways to achieve it. The UNP wanted a remission of the sentence, which, in effect, would be a pardon. Other than that, its campaign was solely on a religious note. However, the JVP is taking the strong position that there should be an unconditional release of the one-time war hero. It endorses Fonseka's position that the General Courts Martial were not "free and fair." The SLMC has chosen to remain non-committal.
On Friday, Wickremesinghe invited representatives of opposition parties for a discussion on "how to co-ordinate matters relating to democracy and the Fonseka issue." Conspicuous by their absence were representatives of the JVP and the SLMC. Mavai Senathirajah, who represented the Tamil National Alliance (TNA) attended. He said he was doing so only because the TNA believed in "democratic traditions" and not because of individuals.
This week's developments have made it abundantly clear that the Government has not shut the door altogether on demands for the release of Fonseka. The only condition is that a request for such a move should come from Fonseka himself. The first confirmation of this came when Presidential Secretary Weeratunga spoke to Opposition Leader's Secretary Rahman. The second emerged during last Wednesday's weekly Cabinet meeting.
"Protests (Udgoshana) are of no use. I cannot relent to them. For a pardon to be given, an appeal has to be made to me directly from Fonseka," he told his ministers. Rajapaksa re-iterated that he was not one who was bent on taking revenge against his political opponents. If that were the case, a minister seated at that meeting would not be there. His sister had gone from temple to temple smashing coconuts to invoke the curses of deities on him. She was a strong supporter of Fonseka. Yet, he said, he had not acted against the minister in question. He had photographs of the person concerned smashing coconuts. "Mang pali ganney nehe (I do not take revenge)," he asserted.
On Thursday, government spokesperson and Media Minister, Keheliya Rambukwella, told a news briefing, "it seems Ms Fonseka and her two daughters do not want Mr. Fonseka released. They are well aware that a request for a pardon must come to President Rajapaksa through the correct procedure from none other than Ms Fonseka. All other rhetoric from roof tops, protests and signature campaigns are useless exercises."
Rambukwella claimed that Chandrika Bandaranaike Kumaratunga went "ten to twelve times" to former President, late J.R. Jayewardene, to seek pardon for her husband, the late Vijaya Kumaratunga, who had been jailed on charges of being a Naxalite. Naxalites are a Maoist communist group in India. Kumaratunga was accused of being part of a locally organised one. Ms. Kumaratunga met the late Jayewardene and pleaded on behalf of her husband, he said.
However, on Friday Ms Kumaratunga told the Sunday Times that Rambukwella's claim was not correct. She said,"I never sought any pardon for my late husband. He had done no wrong. One day, the then Presidential Secretary W.M.P.B. Menikdiwela telephoned me and said an appointment had been fixed for me two days after. I said I had not sought one. Later, I decided to go with my sister Sunethra.
The late Jayewardene was very friendly. I asked him about the arrest. He told us that Vijaya would be released in the next two days. I sought neither a pardon nor a meeting with the late Jayewardene."
Ms Kumaratunga said the punishment imposed on Fonseka was "completely harsher than what he is alleged to have done. He led troops to win the war and Sri Lankans are grateful to him for that." She said President Rajapaksa should give him a pardon without waiting for anyone to appeal to him. Though the late Jayewardene acted wrongly against her husband, she harboured no grudge when she became President. "I made sure he was afforded all the facilities and courtesies extended to a former President. I did not take revenge," she said.
Ms Kumaratunga recalled a remark by Jayewardene during that meeting. After some friendly arguments, Jayewardene had told her "young lady, you should have become a lawyer." She said this episode was among those figuring in her memoirs that are now being written.
On Thursday, it transpired during a party leaders meeting at the Parliament Complex that Fonseka would lose his seat. The meeting was chaired by Speaker Chamal Rajapaksa and those present included Ministers Basil Rajapaksa, Dinesh Gunawardena, John Seneviratne, Douglas Devananda and MP Vasudeva Nanayakkara on behalf of the UPFA, Mangala Samaraweera, Ravi Karunanayake and Lakshman Kiriella on behalf of the UNP, Mavai Senathirajah on behalf of the Tamil National Alliance and Ajith Kumara on behalf of the JVP.
Speaker Chamal Rajapaksa read out from a lengthy letter written to him by the Commander of the Army Lt. Gen. Jagath Jayasuriya. It contained the findings and recommendations of the General Court Martial (GCM) that found Fonseka guilty of "disgraceful conduct" in procurements and the sentence imposed on him. Accordingly, the view of the Attorney General Mohan Peiris had been sought. He had said in terms of the law Fonseka had forfeited his seat. Nanayakkara was to ask the Speaker if a successor were to be named in Fonseka's place, what would happen if a court were to later rule that he was still an MP. The Speaker noted his question but did not respond.
Later on Thursday, Parliament's Acting Secretary General Dhammika Dissanayake wrote to Elections Commissioner Dayananda Dissanayake, informing him that Fonseka's seat had fallen vacant. The Commissioner later issued a gazette notification naming Lakshman Nipunaratchchi, who secured the largest number of votes after Fonseka at the April parliamentary elections, as the new MP. Nipunaratchchi told the Sunday Times he was awaiting instructions from his party (DNA) on whether or not to accept it.
This is whilst Fonseka requested a Colombo law firm to write to the Commissioner of Elections informing him that no vacancy of his seat has occurred.
Paul Ratnayake Associates said, "…..our client has not been convicted or sentenced by a court. The Authority who has imposed the sentence on our client is the President of Sri Lanka who has confirmed the conviction and sentence. You will also note that a General Court Martial established under the Army Act does not come within the meaning of a Court in terms of the Constitution. A Court Martial is only a tribunal or institution that the Parliament has created and established by law. As such our client is not subject to the disqualification envisaged in terms of Article 91(1) (a) read with Article 89(d) of the Constitution since he has not been convicted by a Court." The firm has said Fonseka has taken steps to challenge the conviction and sentence imposed on him.
Copies of this letter have also been sent to the Secretary General of Parliament as well as the Returning Officer for Colombo District during April parliamentary elections. JVP General Secretary Tilvin Silva confirmed to the Sunday Times that a request had been already made through lawyers but added, "we understand they are gazetting Nipunarachchi's name." He said, "as far as we are concerned, we want to wait until the outcome of the decision by a court of law."
This has become a knotty issue. In the event Nipunarachchi declines because his party has asked him not to be sworn in, the next on the list, Jayantha Perera, would become eligible. Thereafter, over 25 DNA candidates would have to decline, one after another, before the DNA could nominate another outside the list of candidates. The Sunday Times has learnt that some of those in the list are not keen to reject their names being gazetted. Hence, an appointment will be made before the list is exhausted. Therefore, logically, anyone entering Parliament as MP will be doing it without the DNA's blessings. That would be one vote and one MP less for the DNA. In the light of this, there is every chance the DNA would ask Nipunarachchi to accept his nomination as an MP "under protest". This is because of the reality that one among the first four on the list of candidates has now turned a staunch backer of the UPFA. This also raises the critical question of how Ms Fonseka would enter Parliament, a demand that is growing from supporters of the former General.
A move to call upon Tiran Alles, the DNA Secretary, to give up his National List seat for Ms Fonseka has gained momentum in the light of new developments. However, supporters of Alles told journalists that he had reportedly asked Fonseka during a visit to the prisons whether he should resign to pave the way for Ms Fonseka. They claimed he had been told he could remain. Alles, a millionaire businessperson, is known to be a key funder for the DNA. However, other party sources insist that the issue remains unresolved.
The JVP is busy organising district-level protest campaigns to seek the release of Fonseka. Part of the effort was to paste posters. Soon after this was made known, Police Headquarters ordered Police countrywide to arrest those taking part in poster campaigns. They were told to produce them together with the posters in Courts. Soon after the Sunday Times exclusively revealed the details, Police Spokesperson Prashantha Jayakody was to say the circular was sent for "environmental reasons." Hilarious enough, the circular dubbed them as "anti-government posters." If the Police spokesperson is to be taken seriously, it was only the "anti-government" posters that pollute the environment. Opposition parties have reacted angrily to the move as a report elsewhere in this newspaper reveals.
Tomorrow, the JVP will test its strength over the Fonseka issue. Arrangements are underway to bring a large crowd to Colombo for a protest rally. The crowds are to gather at Campbell Park and march towards the prisons located nearby. This is whilst pressing ahead with court action over a number of issues.
The crisis ridden UNP has seized on the Fonseka issue to hold Seth Kavi chanting ceremonies in temples. This is in addition to its campaign against the 18th Amendment to the Constitution. This is to culminate in an alms giving to the Maha Sangha in December. Both these campaigns are on a religious note.
Whose prayers would be answered first, if at all, the DNA’s or the UNP’s remain the critical question over Fonseka. |
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