Former Army Commander Sarath Fonseka’s Defence Counsel Nalin Ladduwahetti told the Trial-at-Bar hearing the 'White Flag' case that a torture charge against a CID officer in the High Court was withdrawn after he took over investigations against Mr. Fonseka, when the Supreme Court had found the officer guilty of inhuman cruelty and violating human rights.
Mr. Ladduwahetti was responding to objections by Deputy Solicitor General Buwaneka Aluvihare over the calling of case records of particular cases involving CID officer Anura Silva.
In the 'White Flag' case, Mr. Fonseka is accused of having stated in an interview with The Sunday Leader 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.
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| Sarath Fonseka leaving court on Tuesday. Pix. by M.A. Pushpa Kumara |
He is charged with making a false statement to the newspaper, arousing communal feelings and anti-government feelings among the public and creating disputes among them.
The Trial-at-Bar consists of Judges Deepali Wijesundara (President), W.T. M. P.B. Warawewa and M.S. Razeen.
Mr. Ladduwahetti said:
“The investigations against Mr. Fonseka were taken over from a Senior Superintendent of Police (SSP) and handed over to Mr. Anura Silva who was a Sub-Inspector (SI) who had been charged in the High Court for inhuman cruelty.“Mr. Anura de Silva who is now an Inspector of Police (IP) is a witness in the ‘White Flag’ case.
“On the day he was assigned the investigation, i.e. June 28, 2010 the Attorney General (AG) withdrew the case against him. On the same day he went to the Sirasa TV station and obtained a video relating to the case. From that day investigations pertaining to this case took another turn.
“He was a sub-inspector and within six months he has had many promotions and now he is an Inspector of Police.
“His promotions and the withdrawal of charges against him have made him a partial witness in this case. When I was cross-examining him in the 'White Flag' case he said that he had received a ‘reasonable verdict’ from the Supreme Court. In his own words if he was given a ‘reasonable verdict’ isn’t it unjustified to withdraw the case against him (in the High Court)? Reasons regarding his partiality have been taken into consideration in giving the verdict.
"What I hope to submit before this Court through the Registrars of the Supreme Court and High Court is all about Auura de Silva’s credibility and his partiality. It is not to prove that he gave false evidence before this Court, but it is how he was given privileges by withdrawing the case against him after undertaking investigations relating to this case.
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| Mark Trowell, here as an observor from the Inter Parliamentary Union coming to court on Tuesday. |
"There is a reference in a legal book that bribes need not be in cash but could be given in different ways”.
Mr. Ladduwahetti requested the Trial-at-Bar to overrule objections by the Attorney General and allow the witnesses (the Registrars of the SC and HC) to give evidence.
DSG Aluvihare said the original human rights case filed in the Supreme Court has no relevance to this case and that the defence has no right to accuse the investigation officer of being partial.
He said it was wrong to accuse Anura de Silva of partiality on the grounds of his getting a promotion, between the time of the death of SSP N. Samarasekera and the handing over of the investigation to an SI.
He said though an inquiry is supervised by a high official the investigation is done by an official of lower rank. Officials are generally involved in several investigations and when they are given promotions they cannot be accused of partiality.
Mr. Ladduwahetti said it is not incorrect to say that investigations were taken over by an SI after the death of an SSP. It was long after handing over the investigations that the SSP died.
(At this stage court adjourned for half an hour)
When the Court resumed sittings the Trial-at-Bar said the objection made by the State was over-ruled and rejected and the Trial-at-Bar allowed the Registrars of the Supreme Court and the High Court to be called as witnesses.
Tuesday’s proceedings
Senior Defence Counsel Nalin Ladduwahetti (NL) leads evidence of Supreme Court Registrar Sumith Gamini Ranawaka (SGR).
SGR: I have brought the SC case file no. 753/2002 relating to a fundamental rights case.
NL: Who is the petitioner in the case?
SGR: Brahmanage Anura Wijewardena.
NL: Who was the second respondent?
SGR: Sub Inspector Anura de Silva of the CID.
NL: Who is the third respondent?
SGR: Roshan Masimbula of the CID.
NL: When was the verdict in that case given?
SGR: On 27.5.2005.
NL: Can you name the Bench in that case?
SGR: The judges were (Justices) S. M. Silva, Raja Fernando and ???? Dissanayake.
(The witness submitted to Court the verdict of the case given in case 753/2002 marked ‘P 20’)
NL: What is the verdict in that case?
SGR: Respondents 1 and 2 were told to pay Rs. 5,000 and the third respondent was asked to pay Rs. 3,000, from their personal funds, as compensation to the petitioner.
NL: What are the fundamental rights said to have been violated in the case?
SGR: Sections 11 and 13 of the Constitution.
(Cross examination of the witness by DSG Buwaneka Aluvihare commences).
SGR: I have brought the file of case no: 753/2002.
DSG: In which year was the case filed?
SGR: In 2002.
DSG: What was Anura de Silva’s designation nine years ago?
SGR: Sub-Inspector.
DSG: Is there anything else stated in the verdict other than to pay compensation.
SGR: I will need to read it. (reads the verdict).
DSG: I suggest there is nothing else mentioned.
SGR: I accept that.
DSG: Is it mentioned the petitioner was involved in a fraud of Rs. 1.5 million from Ceylinco Shriram?
SGR: Yes.
DSG: Is there mention in an affidavit submitted in relation to the petition about a fraud of Rs. 40 million at Ceylinco Shriram Capital Investment Ltd., by the petitioner where he worked?
SGR: I need to see the file.
DSG: Is there an affidavit from the first respondent IP Ampawila?
SGR: As there are eight respondents it is difficult to say.
(At this stage the DSG took over the file and requested that the affidavit of IP Ampawila be marked as ‘X’)
Drawing reference to the affidavit, DSG says there is a reference to a fraud of Rs. 40 million.
Mr. Ladduwahetti then leads evidence of High Court Deputy Registrar K. A. Chamikara Perera (CP).
NL: Have you brought the file of case 3518/2006?
CP: Yes.
NL: Who is the accused in the case?
CP: Anura de Silva.
NL: Under what Ordinance has the case been filed?
CP: Under the Convention against Torture and other Cruel , Inhuman or Degrading Treatment or Punishment Act, No.
22 of 1994.
NL: Who is the first witness in the case?
CP: Brahmanage Anura Wijewardena.
NL: When was the indictment signed?
CP: On 18.10 2006.
NL: See if there is an endorsement dated 28.6.10.
CP: Yes.
NL: Please read it.
CP: The notes say it was decided not to proceed with the indictment in this case. Accordingly, a motion has been submitted. It says the accused was successful in the test to join the UN Peace Keeping Force and is due to face the interview and that it may be taken into consideration the accused is facing a case in a Sri Lankan Court. Since the accused may lose this opportunity, this motion is being submitted. Accordingly, a request has been made to acquit the accused. State Counsel has said according to the AG’s advice the accused may be acquitted.
NL: Has the Court allowed that?
CP: Yes.
NL: Has a request been made on June 28, 2010 for another date of hearing and for when is that?
CP: For August 30, 2010.
Friday’s proceedings
Senior Defence Counsel Nalin Ladduwahetti led the evidence of Prof. Rajiva Wijesinha, National List MP.
Prof. Wijesinha told Court that a letter had been sent to the UN Special Rapporteur Philip Alston and parts of a Sunday Leader news item of December 18, 2009 was quoted in the letter. He said that a reply was sent on December 21, 2009 to Mr. Alston and that subsequently a request was made to withdraw the letter.
Prof. Wijesinha was also cross examined by DSG Buwaneka Aluvihare.
Mr. Ladduwahetti thereafter led the evidence of JVP MP Anura Kumra Dissanayake (AKD).
NL: Did you visit Mr. Fonseka’s office on December 14, 2009 and who else was there?
AKD: Mr. Fonseka and Mr. Mangala Samaraweera.
NL: Who came there and what was discussed?
AKD: Ms. Frederica Jansz and Mr. Lal Wickrematunga. They discussed about a denial on a news item which appeared in The Sunday Leader. Ms. Jansz and Mr. Wickrematunga made an appeal not to deny the news item as they would face lots of problems.
NL: What did Mr. Fonseka say?
AKD: Mr. Fonseka read out some parts and denied that he had made such a statement and said he would have to send a correction. They appealed not to send a denial and left.
NL: What happened thereafter?
AKD: I told him to deny the news item fully, but Mr. Fonseka said if he denies it completely it could be a threat to Ms. Jansz’s life.
Mr. Dissanayake was cross-examined by DSG Aluvihare.
DSG: Did the news item in The Sunday Leader cause any harm to Mr. Fonseka?
AKD: Yes, the news item was interpreted in a different manner and some sections made an attempt to create a wrong impression. There were impacts on the election campaign and there were legal problems.
DSG: When a wrong news item is published shouldn’t it be corrected?
AKD: Yes, I would not hesitate to do that.
DSG: Was a news conference summoned to deny this particular news item?
AKD: Yes, by General Fonseka.
DSG: Have you denied this report?
AKD: Yes, at the press conference.
DSG: I suggest that at the news conference the news item was not totally denied.
AKD: It was not fully denied. After Ms. Jansz and Mr. Wickrematunga left the office Mr. Fonseka questioned ‘if we deny this fully, what will happen to that girl (Ms. Jansz)’.
DSG: If the news item was fully denied at the news conference this situation would not have arisen.
AKD: The news conference we held was sufficient. But since the media does not act in a reasonable manner at times, what you just mentioned does not take place.
(Cross examination of Mr. Dissanayake ends)
The next date of hearing is on June 16.
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