Justice for Sarath Fonseka and Presidential Pardons

| by Shanie

"The quality of mercy is not strain’d;

It droppeth as a gentle rain from heaven

Upon the place beneath. It is twice bless’d;

It blesseth him that gives, and him that takes….

Though justice be thy plea, consider this –

That in the course of justice, none of us

Should see salvation; we do pray for mercy,

And that same prayerdoth teach us all to render

The deeds of mercy." - Shakespeare in The Merchant of Venice

(December 17, Colombo, Sri Lanka Guardian)  Rauf Hakeem is one of the more intelligent and capable of the public figures in our country. But he is also a politician. It is the politician in him that got the better of him last week when he stated in response to a parliamentary question that he would consider appealing to President Mahinda Rajapaksa to pardon former Army Commander Sarath Fonseka if a request was made by Fonseka’s family members. ‘A procedure has to be followed in securing pardon’, Hakeem had stated. What is this procedure to which he refers? In recent months, we have seen Presidential pardons being extended to convicted murderers, fraudsters et al who were conveniently in politics. Every year, scores of convicts receive a pardon on special national occasions. Hakeem, as Minister of Justice, would presumably have recommended the grant of a pardon to all of them. Did he receive a request from the family members of all those murderers, fraudsters and other convicts? Hakeem knows that several prominent Sri Lankans, including the Venerable Mahanayakes have pleaded for a pardon for Sarath Fonseka. Does he consider that insufficient for him to be able to exercise his own judgement in recommending a pardon?

It is a pity that Hakeem, the politician, has sullied the reputation enjoyed by Hakeem, the man of responsibility and integrity, in merely repeating what a minor official in the Presidential Secretariat had stated a few days earlier on the same lines, Sarath Fonseka was the able Army Commander who led the security forces to victory over the LTTE. Like all successful military figures, he is also a tough and proud man. He is certainly not going to ask, nor will be allow his family members to ask for a pardon. Such a request would imply that he has done some wrong. He does not believe he is guilty of any wrong-doing. Many people in Sri Lanka, at all levels of society and from all shades of political opinion, share his belief that he has broken no law. Over a year ago, this column wrote: ‘It is Justice not a Pardon that Sarath Fonseka needs’, borrowing that title from a statement issued by Bishop Duleep de Chickera.

Convictions of Sarath Fonseka

That column was written before the recent judgment by the High Court of Colombo on a split decision, but after two hand-picked military tribunals had found Sarath Fonseka guilty after a two lightning trials. There have been appeals against all three judgements. In the case of the two military courts, it was about the competence of those tribunals to hold a trial against the retired Army Commander, and the ‘evidence’ that was led to convict him. The High Court judgment is an interesting one. The evidence hinged basically on one prosecution witness Frederica Jansz, who had interviewed Sarath Fonseka. Lal Wickrematunga, the publisher of the newspaper, of which Jansz was the editor, was also present but, for an inexplicable reason, was not called by the prosecution to support Jansz’s story. Fonseka’s version was that after a formal interview by Rakmish Wijewardene, journalist in the same paper, was over and he had left, Jansz and Wickrematunga stayed behind for an informal chat. During the course of this chat, Jansz had asked him about the white flag case. Fonseka had replied that he had heard about it from journalists who were present in the war front. This is the same version that he had told the US Ambassador the following day as reported in Wikileaks. Jansz however does not quote him as stating that he had heard the story from a third party.

Justices Wijesundera and Razeen, in their majority verdict accept Jansz’s version as correct. Justice Warawewa, in his dissenting judgment, totally rejects Jansz as a credible witness. He finds it strange that she did not carry a tape recorder for such an important interview. Even her note book has been written up at a later date. Her story about the white flag case is very similar in structure and language to an article on the same case written in another newspaper seven months earlier. Justice Warawewa is convinced that Jansz’s evidence is woven with lies and the newspaper article in question had been prepared based on other articles and on falsehoods.

In 1984, in Dallas Texas, one Gregory Lee Johnson participated in a political demonstration to protest against the policies of the then Reagan administration and of certain Dallas-based corporations. As the demonstration ended in front of the Dallas City Hall, Johnson unfurled an American flag taken from a flagpole outside a corporation building, doused it kerosene and set it on fire. Johnson was duly charged with desecrating a venerated object. The lower court convicted Johnson, sentenced him to one year in prison and a fine of $ 2,000. Following his appeal, the Texas Court of Criminal Appeals acquitted him. The case then went up to the US Supreme Court. Justice William Brennan in delivering the majority judgment (Chief Justice William Rehnquist gave a dissenting opinion) stated: "The State’s interest in preventing breaches of the peace does not support his conviction because Johnson’s conduct did not threaten to disturb the peace. Nor does the State’s interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression." Earlier in his judgment Justice Brennan said the Court had not permitted the government to assume that that every expression of a provocative idea would incite a riot, but had instead required careful consideration of the actual circumstances surrounding such expression. Johnson’s expressive conduct did not fall within that small class of ‘fighting words’ that are ‘likely to provoke the average person to retaliation and thereby cause a breach of the peace.

Confusing revenge with justice

One year ago, in this column referred to earlier, we quoted Oscar Arias Sanchez, Nobel laureate and twice President of Costa Rica: ‘It is essential that justice be done, and it is equally vital that justice not be confused with revenge. The two are wholly different.’ Professor Wiswa Warnapala, a cabinet minister in an earlier PA government, once writing on the third death anniversary of Sirimavo Bandaranaike said: "Political revenge became an the art of government during the period of office of J R Jayawardene, who made useeof every institution of government, both parliamentary and extra-parliamentary, to manipulate the system to achieve his narrow political ends. The imposition of civic disability on Mrs Sirimavo Bandaranaike became an integral part of that manipulative process."

On the same issue, which has great relevance to our present time, Bishop Lakshman Wickremesinghe, in a letter to President Jayewardenae was to write: The proceedings of the Special Presidential Commission of Inquiry (which found Sirimavo Bandaranaike guilty) cannot be described as a fair and impartial judicial process. The reason for saying so have been given in the Statement issued by the Civil Rights Movement of Sri Lanka, of which I am Chairman for the time being…….In the Buddhist tradition, the righteous ruler must govern with both impartiality and fairplay, in addition to acting justly….Again, in view of what has been said of the Special Presidential Commission of Inquiry, to deprive your chief political opponent, who alone is able to muster an effective opposition to your party in this country at the present time, of her right to sit in Parliament and to contest the next General Election ad leader of her party or coalition of parties, is to undermine one of the basic foundations of a vibrant democracy."

Last year, another Bishop, Duleep de Chickera, lamented that a growing culture of arbitrary rewards and punishments was bringing the country to a critical crossroads in its political history. The government was fast losing its credibility as the authority chosen by the people to safeguard the rights of its citizens and ensure justice for all. The opposition, in disarray and obsessed with its own power struggles, was unable to make a difference on behalf of the people…..Consequently, to call for justice for Sarath Fonseka required a call for justice for all. Such a stance would eventually restore the integrity of our nation." It is amazing how these statements made by three distinguished Sri Lankans made at different times over the last twenty years have so much relevance to our present situation.

It is perhaps understandable that politicians do not, or do not care, to listen to advice given by apolitical persons of stature and integrity in the country. The people however need to be vigilant and safeguard their rights. In this, our leaders, in civil society and the religious, have a duty to provide the necessary leadership and guidance to the people in safeguarding those rights. In the light of the politicization of many institutions of governance, they cannot and must not abdicate that leadership role. We are thankful that there are still some civil society organizations that publicly show their commitment to justice, equality and good governance in our country. But sadly, the silence of our religious leaders, except for one or two exceptions, is somewhat deafening.

The other bulwark for the safeguarding of people’s rights is an independent judiciary. In 1978, when the new J R Jayewardene government enacted a new constitution, they made use of the opportunity not to re-appoint some existing Judges. Seven Supreme Court Judges and six from the High Court found themselves out of ‘job’. At the ceremonial inauguration of the new Supreme Court, Chief Justice Neville Samarakoon stated: "We have gathered together to usher in the new Supreme Court in the traditional manner known to Bench and Bar. I and my brothers have been members of the old Supreme Court and would have wished for it an honourable demise and a decent burial, but that was not to be. Words have been uttered and aspersions cast in another place which seemingly affects its hallowed name. What more is in store I do not know." Those were prophetic words and we know that Chief Justice Samarakoon and his Supreme Court, by and large, resisted political interference and safeguarded judicial independence. It was only because of that commitment, people were able to go to the Supreme Court with fundamental rights applications and obtain redress against acts of injustice.