Fonseka’s white flag case appeal before SC to be supported on 2 and 3 May

By S.S Selvanayagam

The Divisional Bench of Five-Judge Bench of the Supreme Court yesterday (8) fixed for support on 2 and 3 May the appeal filed by former Army Commander against the High Court judgment sentencing him to three years in jail and a fine of five thousand rupees or six months jail for default.

The Bench comprised of Chief Justice Shirani A.Bandaranayake, Justices N.G Amaratunga, P.A Ratnayake, Sathya Hettige and Priyasath Dep.

When the leave to appeal application was taken up by the Court, the Counsel Nalin Laduwahetti appearing for the accused-appellant Fonseka submitted two letters in confidential covers relating to the composition of the Bench.

He informed the Court that as he had been abroad, he received his brief 10 day ago and said that as there are legal issues, he needs time to go through the brief and moved for time.

Having heard his submission, the Court fixed the matter to support on 2 and 3 May for leave to appeal.

Nalin Laduwahetti with Niroshan Perera and Chathuranga Amaratunga instructed by Paul Ratnayake Associates appeared for the Appellant Fonseka. Solicitor General Palitha Fernando with Deputy Solicitor General Buvenega Aluvihare, Senior State Counsels Detan Ratnayake, Navavi and Suresh de Silva appeared for the Attorney General.

Former Army Commander Sarath Fonseka was sentenced to three years in prison and fined Rs. 5000 by the Colombo High Court 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.

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.

The Court handed down a three years sentence, to run consequently, while he was fined Rs. 5000 which has to be paid within six months failing which he would be required to serve another six month jail term.

The ‘white flag’ case stems from an interview given by Fonseka to The Sunday Leader newspaper when he was the common opposition candidate at the last Presidential election in which he alleged that LTTE leaders who were surrendering to the Army carrying white flags were ordered by Defence Secretary Gotabaya Rajapaksa to be shot.

He was indicted before the Colombo High Court on December 8, 2009 on three counts including “propagating a rumour”, for attempting to promote hatred and cause ill-will and hostility among the people and for inciting the public against the State.

Judges Deepali Wijesundara (President), Zulfikar Razeen of the High Court Trial-at-Bar in their majority judgment ruled it has been established without doubt that the statement made by 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. They held that on the second and third charges the accused is not guilty.

Judge W.T.M.P.B Warawewa in his dissenting judgment ruled that the prosecution had failed to prove the charges against former Army Commander Sarath Fonseka beyond doubt and acquitted and discharged the accused on all three counts.