| by Gaja Lakshmi Paramasivam
(November 21, Melbourne, Sri Lanka Guardian) As per the article ‘The White Flag case: The reasons behind the two verdicts’ by Manopriya Gunasekera’ , ‘Former Army Commander Sarath Fonseka was sentenced to three years in prison and fined Rs.5000 by the Colombo High Court on Friday with two of the three judges on the Bench, in the “White Flag” case, finding him guilty of “propagating a false rumour’ in violation of emergency regulations and the Criminal Procedure Code. Mr. Fonseka was found guilty on the first of the three counts he was charged with by High Court Judge Deepali Wijesundera and M.Z. Razeen while Judge W.T.M.P.B. Warawewa found him not guilty on all three counts.’
|Image from The Little Traitor film|
BBC’s Stephen Suckur reported in June 2010 ‘The Sri Lankan government has threatened to execute Sarath Fonseka, the army commander who delivered victory over the Tamil Tigers, if he continues to suggest top officials may have ordered war crimes during the final hours of the Tamil war.’
Some Relevant ‘Facts’ apparently accepted by the High Court:
Excerpts of Reasons for judgment by her Honor Deepali Wijesundara, President of the High Court Trial-at-Bar, and his Honor Zulfikar Razeen included in this article inform us : ‘According to evidence given by the defendant, on July 12, 2009, two months after the war ended, the defendant was summoned to the President’s Office by the President and asked to take over as the Chief of Defence Staff (CDS) and hand over duties as the Commander of the Army. The defendant said he was shocked by the news as no such thing had happened in any other country. He said he was removed in an unprofessional manner as Army Commander by the President and the Defence Secretary. He said that as rumours were being spread that he was going to enter politics while serving as CDS, the President had at the Security Council meeting passed several hints at him. When the President’s Secretary Lalith Weeratunga inquired from him if he was planning on entering politics, he had replied that he would not do so while in uniform.
He said due to the unfair treatment meted out to him, he had resigned from the Army on January 12, 2009.
He said while he was engaged in the election campaign, a journalist by the name of Rakmish Wijewardene had contacted his secretary about an interview. He said that Wijewardene, Frederica Jansz, Lal Wickramatunga as well as a cameraman had come for the interview at the set time.
Wijewardene had interviewed him for about half an hour while Ms. Jansz and Wickramatunga remained silent. He said later Ms. Jansz and Wickramatunga had chatted with him for about five minutes when she questioned him about the allegation that LTTE leaders who were surrendering with white flags were to be shot on orders given by the Defence Secretary to Brigadier Shavendra Silva. He had said he had heard of such a story from two journalists who were in the war front. He said that he was unaware of anything beyond what he had heard from the journalists and that as far as he knows no one came forward with white flags and that the Army had not shot dead any such persons.
He also said that in the article “Gota ordered them to be shot,” he had not made any such comment and the Editor had imagined and written it. The defendant said that the Editor had not noted down anything he said and the notebook presented to the Court was something written on a later date.
Fact as per BBC’s interview with Defence Secretary – the Hon Gotabaya Rajapakse in June 2010:
Mr Gotabaya Rajapakse’s response to BBC about Mr. Sarath Fonseka’s declaration that he would testify before an independent war-crimes tribunal included: “He can’t do that. He was the commander,” “That’s a treason. We will hang him if he do that. I’m telling you… How can he betray the country? He is a liar, liar, liar………….”We are an independent country, we have the ability to investigate all these things”.
In essence – to the ordinary Sri Lankan the political reason why Mr. Fonseka was arrested was because he threatened to testify before an independent war-crimes tribunal. One has the moral right as a sovereign country to investigate ‘internally’ and confidentially – only on the basis of belief. Anything else is an abuse of power through global status, which needs to be considered as a serious offence by all global observers and judges and used in their respective roles in relation to Sri Lanka.
To the same ordinary Sri Lankan, their Judicial system is now saying ‘it has been established without doubt that the statement made by Mr. Fonseka claiming that the Defence Secretary had ordered Major Gen Shavendra Silva to kill any LTTEer who came to surrender was a violation of the Emergency Regulations.’
The Government, through Mr. Gotabaya Rajapakse, was claiming that Mr. Fonseka was a Traitor. The same Government claimed that LTTE were Terrorists and on its behalf, Mr. Fonseka risked his life and fought which eventually led to the death of the LTTE.
Mr. Fonseka as Commander of the Armed Forces, would have acted through a combination of hearsay, lawful merit and belief. Likewise, the Government of Sri Lanka, including Mr. Gotabaya Rajapakse. To the extent Mr. Fonseka believed in his work and/or that the LTTE were Terrorists – he was fighting to defend Dharma/Righteousness. Beyond that he needed to consciously apply the laws and rules as per his position and calculate rights and wrongs of his proposed actions. Mr. Fonseka’s reaction after being denied promotion and being ‘demoted’ after the war – confirms that there according to him that decision and therefore the war, were outside the boundaries of common belief within Armed Forces and outside merit as per the law.
If the decision to demote was based on belief – then to the extent of their differences in the issue of promotion – the decision was lacking in common belief. It might have been through the separate belief of one or more individuals – excluding Mr. Fonseka. Hence it was lacking in ‘Sovereignty’
As per objectively measurable merit, visible to the world which also listed the LTTE as Terrorists, Mr. Fonseka had earned promotion. This promotion did not happen. The decision was therefore due to hearsay and/or the belief of an individual applied outside the environment bound by that belief. Belief of an individual within Family – for example belief between the Rajapakse brothers – would become hearsay when used in an environment outside that family – in this instance in the Sri Lankan Armed Forces that are required to follow the laws of the country first – whether they believe in them or not. When they act as per the law, they are taken as acting on behalf of all Sri Lankans. When they believe in those lawful acts – they are in real – acting on behalf of all Sri Lankans. Both – law and belief – are essential requirements for the actions and judgments to qualify as being on behalf of all Sri Lankans – including those who disagree.
One could have belief in both the official position and family – but in this instance Mr. Gotabaya Rajapakse has demonstrated that he did not believe more in Mr. Fonseka – through their common cause of eliminating the LTTE, than in his own brother. This means also, that there was not enough belief that LTTE were terrorists who deserved to be eliminated without mercy. It mattered not whether the LTTE were or not. Such judgment would vary from person to person and from group to group. They would all be right in their reswpective environments of belief/faith. In this instance, that environment was the Defence Force – and within that Defence Force – two top officials have demonstrated that they did not believe that the LTTE were Terrorists. If they had believed that the LTTE were terrorists and were traitors committing treason, then getting rid of the LTTE would have naturally bound them long-term and would have extended beyond Lanka’s shores to the Global level to those who listed the LTTE as Terrorists, based on the assessment of the Sri Lankan Government.
If the Tigers were not Terrorists as per Common Principles/Definitions and/or Belief of the Government of Sri Lanka – then there was no need for rewards at that level. Lower level low key rewards would have been sufficient. One who believed would have continued to be with that ‘family’ that got rid of the Terrorists. Common belief makes us family and hence we do not need to ‘prove’. Every action and experience through that common belief would strengthen our unity. If it separates us after the event – then at least one side was lacking in belief.
One who calculated through common global laws, would have been transparent in their actions and/or outcomes . Such a person would have been focused on the issue rather than taking ‘us and them’ attitude. This issue based focus was missing, even though LTTE were also Sri Lankans according to those laws. Hence the transparency needed for inspection by independent observers above the level of both sides – without attachment to either side. As per the judgment of Sri Lankan Government – even the UN did not qualify as such an independent observer.
The average Sri Lankan would therefore conclude that Mr. Fonseka was dealt with as per ‘local’ family belief at best and mere hearsay at worst. Even family belief, when used ‘outside’ the family and outside the regulated path of the law, is valid only as hearsay. To that extent, the elimination of the LTTE on the claim that they were terrorists – is also strongly tainted with the influence of ‘hearsay’, likes and dislikes. The death and suffering of civilians on this basis would amount to ‘Treason’ if it happened in Australia.
According to Australian law, one commits treason if one ‘intentionally assists, by ‘any means whatever’, another country or organization that is ‘engaged in armed hostilities’ against the Australian Defence Force’
If therefore Mr. Fonseka was working against the Government and was committing treason – as claimed by Mr. Gotabaya Rajapakse, then one concludes that he was acting against the Sri Lankan Defence Force. This would mean that Mr. Fonseka was effectively helping the LTTE!
If we look at it from the ‘opposite’ side – given that Mr. Fonseka was leading the Sri Lankan Defence Force as their Commander – anyone who worked against him was effectively working with the LTTE and was committing Treason! Who is the traitor here – according to Sri Lankan law? Or is Sri Lankan Government’s subjective judgment to be accepted on the claim of ‘sovereign rights’?
Belief is the only true basis for the authority to apply ‘sovereign rights’. It must also be applied within the limits of that Common belief. The LTTE were labeled terrorists – beyond such limits and were later killed beyond the limits of belief. Tamil armed forces killing the LTTE on the basis of their belief – would have been within the laws of Natural Justice. Not Sinhalese armed forces.
Tamil civilians killed by armed forces who went beyond the limits of the belief in their positions and/or in Tamils as a ‘Community’ were victims of armed forces acting in breach of ‘sovereign rights’. To the extent the LTTE claimed such ‘sovereign rights’ beyond their belief in the Tamil Community, they deserved the return karma. But even one civilian killed or injured by the Government Forces beyond the limits/protection of the officer’s belief and/or the law – has effectively been killed due to treason. The remedy is for them to be declared and honored as war heroes.
Mr. Fonseka’s sentence of 3 years in prison confirms that to the Sri Lankan judiciary, Mr. Fonseka was NOT a traitor but a minor offender. To the Government that spoke through Mr. Gotabaya Rajapakse, it was an offence deserving execution. This then says to my simple Global mind of Sri Lankan origin, that that the alleged acts of Terrorism by the LTTE when discounted by the same ‘margin’ would be minor offence to a Just and Equitable Sri Lankan Judiciary. Why were they then given the death sentence?