Charge of inciting ethnic discord should be levelled against paper, not Fonseka: Defence

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

In his concluding submissions to Court, Mr. Nalin Ladduwahetti, Senior Defence Counsel for former Army Commander Sarath Fonseka in the ‘White Flag’ case said that the allegation of inciting communal disharmony should be levelled against the Publisher and the Editor of the newspaper and not against Mr. Fonseka.

He said that the prosecution had turned the allegation against Mr. Fonseka. Mr. Fonseka is accused 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.

Sarath Fonseka leaving court last week. Pic by Saman Kariyawasam

He is charged for making a false statement to the Sunday Leader, arousing communal 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.

When the case resumed on Wednesday, the Senior Defence Counsel asked the judges whether they are accepting what The Sunday Leader Editor who could beat King Chethiya in her lies said to court or what the General who shed blood three times in the cause of the country said.

“My client is not guilty of any such offence as stipulated in Section 29 of the Emergency Regulations as is clearer in the English copy of the paper than in Sinhala. My client has never been a publisher as the plaintiff attempted to show”, he said.

He said that the names of the photographer and the reporter who accompanied Ms. Frederica Jansz for the interview have not been listed as witnesses and Mr. Lal Wickrematunga (the publisher) who accompanied her for the interview with Mr. Fonseka was not called as a witness, though he was listed. This court has to decide whether it believes the Editor or the only four star General.

‘Court has to decide whether the interview with Mr. Fonseka that was published was of comments made during a friendly conversation or during a formal interview’, he said. I can show 25 instances where she changed her stance even in this case.

She relishes in attacking others without any checking and she has shown her real character throughout the proceedings in this case too. Before publication of the news, she said she verified it from four persons - Basil Rajapaksa, Brig. Udaya Nanayakkara, Major General Shavendra Silva and Army Commander Jagath Jayasuriya. When she was asked why she did not clarify matters with Defence Secretary Gotabaya Rajapaksa she said that she called his office and left a message to call her back. When I asked Mr. Rajapaksa in courts, he showed his mobile phone saying that any journalist in the country knows his mobile number and nobody called him on that number.

When she was asked why she waited until Friday, she said that since her office will have a problem she delayed asking him about it. But the question is she says she asked Mr. Basil Rajapaksa and others about it earlier and queried whether they won’t be telling the Defence Secretary about it. If it is proved that false evidence has been given by the witness the entire evidence should be rejected and the accused acquitted.

Proceedings on Thursday

Continuing his arguments Mr. Ladduwahetti asked court whether it was a gift to Police Inspector Anura Silva from the Attorney General to withdraw charges filed against him under the Torture Act after he took over investigations in the ‘White Flag’ case against Mr. Fonseka.

She had said she tried to clarify the news from Shavendra Silva, Udaya Nanayakkara and Basil Rajapaksa. The first two of them had said ‘no comment’ and Mr. Rajapaksa had denied it. She was not able to contact the Defence Secretary. Therefore she had no confirmation about the news item before it was published. Though she claimed that she did not have the phone number of Mr. Gotabaya Rajapaksa his number is recorded in her notebook.

She had told Derana TV that she had the recording of the interview, but later claimed that she did not have a recording of the interview with Mr. Fonseka. She has said that usually all important interviews are recorded. In that case where is this recording, he asked?

Asked whether the statement that “Gota ordered them to be shot” published was recorded in her note book she said that he may have said ‘kill’ but she may have recorded it as ‘shoot’. This itself shows that what her paper said was not what the General said.

Mr. Ladduwahetti said what appeared in The Sunday Leader of December 13 was exactly what appeared in the Daily Mirror of May 21, 2009. Will General Fonseka say something verbatim of what has already appeared in another newspaper? It cannot happen. If two papers carry the identical story it cannot be a mistake. If there are similarities it is different, but in this case chunks of the original publication too have been copied.

Her idea in publishing what Mr. Fonseka said was merely to get an award. When I challenged her to show that what the General said was verbatim she said that she had recorded it in her notes as ‘not to accommodate’ any person trying to surrender with white flags. There is a huge disparity here. He said the Court should decide if the General made such a statement and if he did not to acquit him.
The case will be taken up again on Tuesday.

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