The Prosecution closed its case in the ‘White Flag’ case before the High Court Trial-at-Bar, against former Army Commander Sarath Fonseka.
Deputy Solicitor General Buwenaka Aluvihare informed Court on Wednesday that the State has presented its case against the former Commander on charges of stating in an interview to The Sunday Leader newspaper that Defence Secretary Gotabaya Rajapaksa had ordered not to spare any LTTE cadres surrendering during the final stages of the war against the guerrillas in May 2009, even if they were coming forward with white flags, and thereby arousing communal and anti-government feelings among the public and creating disputes among them.
The prosecution case commenced on October 4, 2010 and went on for 29 trial days during which 18 witnesses gave evidence.
Senior Defence Counsel Nalin Ladduwahetti said he needed time to decide whether a plea should be made that the accused Mr. Fonseka should be acquitted on the grounds that the State had not made a prima facie case against his client.
The Trial-at-Bar consists of Judges Deepali Wijesundara (President), W.T.M.P.B. Warawewa and M.S Razeen.
This week, Inspector of Police Anura de Silva (IP-AS) of the CID said in his evidence that he took over the investigation of the case after the Senior Superintendent of Police (SSP) Nimal Samarasekara who had initiated the investigation suddenly passed away.
Deputy Solicitor General (DSG) led the evidence of IP de Silva.
DSG: Did you get the original of the note book of Frederica Jansz (on which notes of Mr. Fonseka’s interview to The Sunday Leader was taken down)?
IP-AS: I called Ms. Jansz and told her to hand over the orginal.
DSG: Did she hand over the notebook?
IP-AS: No, she refused to hand it over. She explained the reasons.
DSG: Did you take any action to obtain the notebook?
IP-AS: A motion was submitted to Court requesting that notice be issued.
DSG: Accordingly, was the note book handed over?
IP-AS: It was handed over on June 6, 2010 in Court.
DSG: Were you in Court when the notebook was handed over? IP-AS: Yes.
DSG: Could you explain what transpired in Court?
IP-AS: The Magistrate told me to count the number of pages. There were 89 pages. The interpreter was also told to count the number of pages. He also said that there were 89 pages. Thereafter the book was sealed.
DSG: Could you identify the notebook if you see it again?IP-AS: Yes.
(The notebook was shown to him and he identified it)
DSG: The notebook is in two parts now. When you saw it originally was it in two parts?
IP-AS: No, It was not removed, it was a single book.
DSG: Was it bound well?
IP-AS: It was not bound very well, but not in two parts.
DSG: What did the Court do about the note book thereafter?
IP-AS: It was kept in safe custody.
DSG: You also took some copies of The Sunday Leader newspapers into custody.
IP-AS: Yes. I took The Sunday Leader issues of December 13, 2009, December 20, 2009 and January 3, 2010 into police custody.
DSG: What did you do with them?
IP-AS: I handed them over to Court.
DSG: Did you collect material from other media?
IP-AS: Yes, the accused had made statements at a Presidential election rally regarding the same matter.
DSG: Did you take action to collect them?
IP-AS: Yes, The Colombo Magistrate’s Court issued an order on June 22, 2010 that the original tapes of this broadcast be handed over.
DSG: Accordingly, did you go to the Sirasa TV station?
IP-AS: Yes. On June 22, 2010 I met the Sirasa News Director Sangeeth Kalubowila and handed over the court order to him and made a request for the tape.
DSG: Did he give you a time to collect them?
IP–AS: On June 28, 2010 he called me and told me to come over there.
DSG: Did he give you the tape?
IP-AS: No, he told me that since the broadcast is more than six months old they did not have the original tape. However, he handed over three CDs containing the news bulletins relevant to the case.
DSG: Did you record a statement from Ruchira Yohan Abeyratne?
DSG: Did you obtain a court order to collect material from other media institutions as well?
IP-AS: Yes. The Court issued an order on July 1, 2010 to Swarnavahini and Derana institutions. They too gave me the same response which Sirasa had given. They gave me extracts from the news bulletins. They were not too relevant to the case.
DSG: Though you visited three media institutions you could not get the original tapes of the speeches made at the rally.
DSG: What are the reasons they gave?
IP-AS: They said that as the tapes are re-used they cannot find the original.
(Leading of evidence ends and cross-examination by Senior Defence Counsel Nalin Ladduwahetti (NL) commences.
NL: When did the investigations into this case commence?
IP-AS: They commenced by recording statements on February 18, 2010.
NL: Is there a complaint regarding this?
IP-AS: Investigations commenced on the directive of the IGP.
NL: Is there a complaint made by anybody?
IP-AS: That would be known only to the IGP.
NL: Is it that the investigations were launched by the IGP?
NL: Is there a complaint made at any time to the IGP or anybody else regarding this?
IP-AS: Instructions to us are given by the IGP. I did not have any communications with the IGP regarding this matter. It is our senior officers who communicate with him.
NL: In this case is the complainant Ms. Frederica Jansz?
IP-AS: According to the IGP’s orders, the statement of Ms. Jansz was recorded.
NL: Was it Frederica (Jansz) who made the first complaint?
IP-AS: I cannot give an answer.
NL: As the investigating officer can you say that Ms. Frederica (Jansz) was the complainant, or not?
IP-AS: I cannot say that.
NL: Are there other complainants?
IP-AS: The CID commenced investigations on a directive of the IGP.
NL: You have been in the police service for 21 years. Can you tell us, is there a complainant in this case?
IP-AS: I have to give the same answer; that the investigation was launched on the direction of the IGP.
NL: Could you tell us, is there a complainant in this case.
IP-AS: I said this earlier. I cannot give answers that the lawyers want.
NL: You took over investigations after SSP Nimal Samarasekera suddenly passed away.
IP-AS: He was transferred from the CID.
NL: Who replaced him?
IP-AS: He was not replaced by an SSP.
NL: The investigations carried out by an SSP were taken over by you.
NL: When you took over investigations did you check whether there was a complaint?
IP-AS: By this time, the investigations had commenced and several statements recorded. Therefore, I continued the investigations.
NL: Was it a directive from the IGP or on information?
IP-AS: The IGP while giving a directive also passed on information. It has been recorded by SSP Samarasekera. In his notes it does not emphasize that a complaint has been lodged.
NL: Is there any record about a complaint being made by any person?
IP-AS: It mentions about the IGP’s directive and information.
NL: When has that been recorded?
IP-AS: The IGP has given the directive on March 12, 2010 according to the notes made by SSP Samarasekera.
NL: When was Frederica’s (Jansz’s) statement recorded?
IP-AS: On February 18. (2010)
NL: You mean SSP Samarasekera opened the investigations before the IGP’s directive?
IP-AS: There is an internal procedure in the CID in carrying out investigations. When an investigation is proceeding it is registered with a serial number. At times orders are verbally received, at night, and at times investigating officers are away for two or three weeks. It is only when they come back that they record the notes.
NL: According to what you say, it took SSP Samarasekera three weeks to go to Mt. Lavinia and come back.
IP-AS: That should be asked from SSP Samarasekera.
(At this point Judge Warawewa told the witness what he tells the court should be acceptable. He said if it was one or three days it was acceptable. But it was about three weeks in this case. )
IP-AS: Usually, the senior officers maintain a separate book when they go out for investigations. I am not sure whether SSP Samarasekera made some record on that book.
Please turn to Page 6
NL: When did the IGP give an order to open investigations?IP-AS: The IGP has not given this order on March 10. This is the date on which SSP Samarasekera had made the notes. This does not mention the date the IGP gave the order.
NL: Are there other files regarding this case?
NL: There is no mention about the date when the IGP gave the order.
IP-AS: The IGP did not give the order to SSP Samarasekera but to the Director, CID.
Judge Warawewa: Whomever the order was given to, it is not a private matter. It is an official duty. There should be an official record of it.
NL: When has SSP Samarasekera registered this investigation?
IP-AS: On March 11.
NL: He has opened investigations before the directive was given?
IP-AS: That is an internal matter. Before the registrations, an investigation can commence.
(Proceedings postponed for the following day)
Proceedings on February 8.
NL: Yesterday, you mentioned that a complaint had not been recorded. Is that correct?
IP-AS: What I said was that investigations commenced on a directive and on the information of the IGP.
NL: Therefore, the first information was received from the IGP.
IP-AS: I feel that is the case.
NL: Do you mean that without a complaint the investigations started on information provided by the IGP?
IP-AS: Information is sufficient for a police officer to start an inquiry.
NL: What I am asking is, is it on a complaint that the investigations started?
NL: Who is that (complainant)?
IP-AS: The IGP.
NL: Was there any reason to hand over an investigation carried out by an SSP to an IP?
IP-AS: I believe there was a reason.
NL: What was the reason?
IP-AS: There is no necessity that an SSP should carry out an inquiry. The current IGP and the DIG have decided that not only seniority matters, but investigations could also be assigned to competent and knowledgeable officers. Accordingly, they may have handed over the investigations to me.
Judge Warawewa: You mean you are the most efficient officer in the Police Department and the others are not good enough. Answer the questions which are posed to you.
NL: Did you take over the investigations on April 10, 2010?
IP-AS: Yes, in April, but I cannot remember the date.
NL: Don’t you have records?
NL: Look at the records and answer the question.
IP-AS: That is in a different file.
NL: Earlier you said there were no other files regarding this case.
IP-AS: Yes, that is the record about departure for an investigation and the return. There is nothing relevant to the case.
NL: Isn’t that important?
IP-AS: After you asked that question I thought it was important.
NL: In how many cases you have given evidence?
IP-AS: In about 10 cases in the High Court and also in the Magistrate’s Court.
NL: As an officer with 21 years of experience, how important is the date of the investigation. Can you give your opinion?
(The DSG objected to the question. The panel of judges discussed the question and granted permission to proceed with the question).
IP-AS: The date is important, but more important is how the investigation is completed.
NL: Do you mean that the date is not important?
IP-AS: The date is not important.
NL: How many days does the month of April have?
IP-AS: I will have to see the calendar and answer that.
NL: Up to what grade have you studied?
IP-AS: I am sorry that you asked that question. I have passed my A/Ls with credit passes and thereafter I entered Law College and passed out as a lawyer.
NL: You have put me into a situation to ask such questions. Can you say how many days the month of April has?
IP-AS: I cannot tell it now. It is either 30 or 31 days.
NL: How important is it whether the investigations started on the first or 30th of a month?
IP-AS: It depends on the case.
NL: Does the first statement by Ms. Jansz mention the persons who were present at the time she did the interview?
DSG: I object to that question.
The panel of judges did not permit the question.
NL: Have there been any cases against you?
IP-AS: There were three fundamental rights violation cases.
NL: Are those cases over?
IP-AS: The cases have been completed.
NL: During which period was that?
IP-AS: I cannot remember. Since the cases are over I have forgotten them.
NL: Were the three cases settled or was there a decision?
IP-AS: They were settled.
NL: Did Frederica (Ms. Jansz) hand over The Sunday Leader newspapers to you?
IP-AS: On my request she handed over one newspaper.
NL: She handed over one paper, that of December 13.
IP-AS: As I recall, one paper.
NL: Only the City edition was handed over to you, not any other paper.
IP-AS: I know that usually there are two editions, but since I obtained the relevant edition I took that paper.
(Cross-examination of witness ends)
DSG re-examines the witness.
DSG: Are there instances where the investigation has been registered when the investigation is in progress?
DSG: Do you see any discrepancy in such a registration process?
DSG: How has the notification made by the IGP to commence this investigation been recorded?
IP-AS: It says recommended.
Evidence of the next witness Mahinda Jayasuriya, Inspector of Police (IP-MJ) was led by Senior State Counsel (SSC) Dilan Ratnayake.
SSC: What were the duties assigned to you on February 1, 2010?IP-MJ: I got instructions to record a statement of Mr. Sarath Fonseka.
SSC: Did you take The Sunday Leader newspaper with you?
SSC: Did you read it before going?
SSC: You gave an opportunity to the accused to correct the mistakes after the statement was recorded.
The witness was cross-examined by Senior State Counsel Nalin Ladduwahetti.
NL: Was SP Gajasinha involved in the investigations?
IP-MJ: I don’t know. IP Anura Silva was in charge of the investigation.
NL: Did SP Gajasinha go for your protection?
IP-MJ: IP Manimbula went with me.
NL: Are you in the division investigating commercial crime?
IP-MJ: No, in financial fraud investigations.
NL: In what section was SP Gajasinha?
IP-MJ: He was a Deputy Director of the CID and also was in charge of the section investigating commercial frauds.
Next date of hearing: February 28.