Fonseka's freedom

Sri Lanka: Former Army Commander Sarath Fonseka has been released from jail, but at what price?

in Colombo

THE war against the Liberation Tigers of Tamil Eelam (LTTE) ended in an emphatic victory for the Sri Lankan forces in May 2009 at Nandikadal, a narrow stretch of land in north-eastern Sri Lanka. But the main hero of that effort, Army Commander Sarath Fonseka, had to keep on fighting a different battle in various courts in Sri Lanka to reclaim his liberty and rights. He walked out of the high-security Welikada Prison at 5 p.m. on May 21 into a crowd of waiting supporters, but his political future is full of uncertainties.

With President Mahinda Rajapaksa signing an order on May 18 pardoning him, the long-awaited freedom was at hand. President Mahinda Rajapaksa signed the papers on the 18th evening and handed over the papers to Chief of Staff Gamini Senerath before leaving for Qatar to enable the release of Sarath Fonseka. Papers will be sent to the Ministry of Justice on Monday, Bandula Jayasekara, presidential spokesman, said on May 20, setting at rest speculation on the processes that would follow the government's decision to release the former Army Commander. It is a well-known fact that the way out of Welikada Prison was through Temple Trees (the official residence of the Sri Lankan President). The Sri Lankan Constitution vests with its executive President an array of powers. Under Article 34 (1), the President may, in the case of any offender, convicted of any offence in any court within the Republic of Sri Lanka (a) grant pardon, either free or subject to lawful conditions; (b) grant any respite, either indefinite for such period as the President may think fit, of the execution of any sentence passed on such offender; (c) substitute a less severe form of punishment for any punishment imposed on such offender; or (d) remit whole or any part of any punishment imposed or of any penalty or forfeiture otherwise due to the Republic on account of such offence.

The Hindu broke the story on his release after speaking to the President on the sidelines of a function held in the third week of May to launch a book, Gota's War. Jayasekara said there was no international pressure to release Fonseka. The first formality ahead of the release was a Cabinet approval. This came on May 17. The next day, the Colombo High Court granted bail to Fonseka in one case, relating to harbouring Army deserters.

It is significant that Foreign Minister G.L. Peiris was in Washington, D.C., holding talks with State Department officials ahead of Fonseka's release. While Secretary of State Hillary Clinton spoke on general issues in Sri Lanka, including the need to demilitarise the north, Assistant Secretaries of State Robert O. Blake (South and Central Asian Affairs) and Mike Posner (Democracy, Human Rights and Labour) are reported to have taken up point by point issues that the United States was concerned about. One of them apparently was Fonseka's liberty. The U.S. had held that Fonseka was a political prisoner and had been demanding his release.

The victory and the aftermath

The victory in the war had made Fonseka and Rajapaksa larger-than-life individuals across the Sinhalese parts of Sri Lanka. The hero worship blinded Fonseka, who, after he was kicked upstairs as Chief of Defence Staff, chose to resign. Like many people who rise to the top, he cultivated sycophants and they made him believe that Sri Lanka was rightfully his. Hindsight would prove that he paid with his liberty for over two years for his one act of folly taking on the mighty Rajapaksa, the man from little-known Hambantota who had conquered Colombo.

Fonseka, who was appointed Army Commander in 2005 by Rajapaksa, was made Chief of Defence Staff in July 2009. In November that year, Fonseka resigned the position and decided to contest the presidential election, a decision that put him in direct confrontation with the more politically savvy Rajapaksa. Although most of the diplomatic corps and foreign observers in Colombo predicted a victory for Fonseka in the election, he trailed Rajapaksa by 17 points.

Fonseka, who was sure he would win, lost the election on January 26, 2010. He was arrested on February 8, 2010, by the military police and subjected to a court martial on military offences.

The General's cases

Fonseka had five cases against him in the civilian courts and two in the military courts. In one case in a military court, he was cashiered and all his benefits were taken away. But in September 2010, he was sentenced in another case, involving a firm called Hicorp, in connection with army procurement during this tenure as Army chief.

The Hicorp case came up again in a civilian court since the government felt that this was also an offence under the relevant laws. But the Colombo High Court, holding that the former Army chief could not be tried twice for the same offence, acquitted him of all charges in the case.

In July 2010, the Attorney General indicted Fonseka and two others on 21 charges on the Hicorp military procurement issue. The other accused included Fonseka's son-in-law Danuna Tilakaratne and Wellington T. Dehoedt. Dehoedt had allegedly produced fraudulent documents without any authority and agreed to supply 30 generators and 250 compasses. But only 234 compasses were supplied to the Army. This case was heard by the Mount Lavinia Chief Magistrate. The Attorney General later transferred the case to the Colombo High Court.

In September 2010, an Army tribunal pronounced Fonseka guilty of charges in the Hicorp case and sentenced him to a jail term of 30 months. He appealed against the decision unsuccessfully. In November 2011, he was again convicted. This time, it was for three years, in what has come to be known as the white flag case.

In December 2009, Fonseka told a Sri Lankan English newspaper, The Sunday Leader, that the LTTE men who were surrendering in May 2009 bearing a white flag, and hence the name of the case were ordered to be shot dead by Defence Secretary Gotabaya Rajapaksa. The Colombo High Court found him guilty of spreading disaffection and sentenced him to three years in prison.

In his defence, Fonseka claimed that he had been misquoted in the article. Fonseka was found guilty on the first count that of violating emergency regulations that were in force at that time. The main charge was that he made a false statement to a weekend newspaper. He was acquitted of the second and third charges arousing communal feelings directly or indirectly by making those statements and arousing anti-government feelings.

The first court martial, which began in March 2010, ordered that he be discharged dishonourably in May 2010. The second court martial on the Hicorp deal resulted in a 30-month sentence. in September 2010.

Though Fonseka had won the April 2010 general election from Colombo district, he was unseated from Parliament in October the same year. He served more than two years in prison and was convicted for another three years last November. He appealed against the convictions in the Court of Appeal and the Supreme Court.

No challenger

Fonseka leads the Democratic National Alliance, which has seven seats in the 225-member House. The next presidential election is due in 2016. He has a variety of health concerns, including respiratory problems, arising from an aborted suicide bomb attack on him. Fonseka suffers from a lung condition, and the dust inside the prison along with the cold weather proved to be disastrous for his health. He also complained of shoulder and knee pain often.

The opposition United National Party (UNP) and other politicians, notably from his own Democratic National Alliance (DNA), assert that Fonseka is the only person who can challenge the present regime. They claim that he still has his Sinhala rural base intact. This is also the strong point of Rajapaksa. While the government might not consider him a war hero, the people and at least a section of the Army that directly interacted at some point with him believes otherwise. In his present position, posing a challenge to Rajapaksa is easier said than done. Looking at the past record, too, Fonseka does not seem the kind of challenger that the opposition wants him to be.

Rajapaksa won the last election by a margin of 1.8 million votes. And, throughout the campaign Fonseka was a public relations nightmare, while Rajapaksa worked his way into the minds of the people. However, the long incarceration of the war hero might just provide some kind of focus to the decimated opposition.

The presidential pardon comes at a price: Fonseka's civil rights will remain suspended for seven years from May 21, the date of pardon. He cannot vote, nor can he contest elections, said Tiren Alles, a Member of Parliament of the DNA, who has been acting as a go-between with President Rajapaksa. Neither can he go out of the country. But Alles is confident that it would be possible to find exceptions to these provisions.

In a late night interview at his residence, Fonseka, however, seemed unaware of the trade-off. He said: What deal with the President? There was no deal. If I wanted to make a deal, I would have made it long ago.