Sri Lanka's Supreme Court rules that

C O N F I D E N T I A L SECTION 01 OF 02 COLOMBO 000536

SIPDIS

DEPARTMENT FOR SA, SA/INS, DRL; NSC FOR E. MILLARD

LONDON FOR POL/RIEDEL

E.O. 12958: DECL: 3-28-13
TAGS: PGOV PHUM KJUS SOCI CE LTTE
SUBJECT: Sri Lanka's Supreme Court rules that
December 2001 election was unfair for many Tamils

Refs: (A) Colombo 485; (B) Colombo 147

(U) Classified by Lewis Amselem, Deputy Chief of
Mission. Reasons 1.5 (b,d)


1. (C) SUMMARY: Sri Lanka's Supreme Court ruled March 25
that the previous government violated the fundamental
rights of numerous Tamils by preventing them from voting
in the December 2001 general election. Human rights
activists applauded the ruling, stating that it set a
precedent for freer-and-fairer elections in the future.
Observers believe that the surprise ruling is a
political black eye for the People's Alliance (PA) and
the radical JVP, which were in power at the time. END
SUMMARY.


2. (U) In a dramatic ruling, the Supreme Court announced
March 25 that the fundamental rights of voters in the
north and east were violated when they were not
permitted to vote in the December 2001 general election.
Agreeing with the case presented by the Tamil
plaintiffs, the court ruled specifically that the Sri
Lankan military, acting on orders from the PA-Janantha
Vimukthi Peramuna (JVP) government then in power,
prevented Tamils in the Vavunia and Batticaloa areas
from passing through military check points in order to
vote. (Note: Accounts by election observers placed the
numbers of Tamils prevented from voting that day in the
north and east in the tens of thousands -- please also
see the 2001 human rights report for Sri Lanka.) The
Court also held that VIPs in the government (including
the president and several of her key ministers) were
given special treatment and allowed to vote illegally
before the election.


3. (U) As for its remedy, the court allowed that there
could be no vote recount at this point, but it fined Sri
Lanka Army Commander Lt. General L. Balagalle, then-
Commissioner of Elections D. Dissanayake, and the
government a total of 391,000 Sri Lankan Rupees
(approximately USD 4,100) each for their roles in
mismanaging the election. From what Mission understands
(with the proviso that it is sometimes very difficult to
understand Sri Lanka's almost Dickensian legal system),
the case cannot be appealed. (Note: The ruling was made
by a three-justice bench of the 11-member Supreme Court.
The bench was apparently acting with full-and-plenary
powers.)


4. (C) Human rights observers were pleased with the
ruling, hoping that it would set a precedent for freer-
and-fairer elections in the future. Kingsley Rodrigo,
the head of PAFFREL, a well-known local NGO involved in
election monitoring, told us that the ruling showed that
the oft-criticized Supreme Court can act in a decisive
fashion and in the public interest. He hoped the ruling
would have a positive impact on proposed local elections
in the north and east which might take place later this
year. (Note: Per Ref A, at the end of the recent sixth
round of peace talks, a joint statement was issued
stating that the Tigers would "favorably consider"
allowing local elections to be held in the north and
east, including, presumably, in Tiger-controlled areas.)


5. (C) Regarding potential political ramifications,
observers have told us that the ruling was a black eye
for the PA and the JVP (who are currently trying to
unite and form an alliance again). Desmond Fernando, a
prominent lawyer and human rights advocate (with close
connections to the prime minister),told us that the
Supreme Court's decision was a huge embarrassment for
President Kumaratunga, the leader of the PA, and a blow
to her image as tolerant toward all communities.
Tamils, he commented, will be sure to view Kumaratunga
in an increasingly bad light, given that it was her
government that prevented members of their community
from voting. (Note: Re the December 2001 election,
Kumaratunga is also in some trouble from a different
angle. Her close relative, former minister Anuruddha
Ratwatte, and two of his sons and 13 others, are
currently on trial for alleged involvement in the
slaying of ten Muslims on election day.)

6. (C) COMMENT: The outcome of the case is clearly a
victory for Tamils and human rights advocates, who have
long fought for judicial acknowledgement of electoral
abuses. The fact that individuals (Balagalle and
Dissanayake) were held directly responsible for their
actions was another small, but important, step in
overcoming Sri Lanka's history of impunity regarding
human rights matters. On the political side, the ruling
was clearly a blow to the PA and JVP, including the
president herself. The fact that the ruling emerged
from a court reportedly controlled by an ally of the
president's (Chief Justice Sarath Silva) was also a bit
of a surprise. END COMMENT.


7. (U) Minimize considered.

WILLS