SRI LANKA: CONTROVERSY OVER END DATE OF

C O N F I D E N T I A L SECTION 01 OF 02 COLOMBO 001318

SIPDIS

E.O. 12958: DECL: 07/28/2015
TAGS: PGOV CE
SUBJECT: SRI LANKA: CONTROVERSY OVER END DATE OF
PRESIDENT'S TERM

REF: A. COLOMBO 1216


B. COLOMBO 1160

Classified By: AMBASSADOR JEFFREY J. LUNSTEAD FOR REASONS 1.4(b) and (d
)


1. (U) Summary. Controversy abounds in Sri Lanka about the
date President Chandrika Bandaranaike Kumaratunga's term of
office ends. While the Constitution allows a single person
to hold two six-year terms as president, the document is
vague regarding the rules if the incumbent calls for early
elections during the first term in office. The President did
not wait for her initial six-year term to end before she
called for elections in December 1999. She now asserts that
she may remain in power twelve years from the date of her
initial election, which would set the next Presidential
elections in November 2006. However, members of the
opposition United National Party (UNP) (and other critics)
argue that the President is only entitled to rule six years
from the date of her re-election in 1999, which would slate
elections for December 2005. Constitutional scholars and
politicians are debating in earnest as everyone awaits
Elections Commissioner Dayananda Dissanayake's decree,
expected mid-August, as to the date of the next presidential
election. End summary.

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CONSTITUTIONAL NUANCES AND ENSUING DEBATES
--------------


2. (U) The clause in the Constitution governing the
president's term, Article 31, states that a sitting president
may call for early elections. The clause goes on to say that
if early elections are held, the incumbent's second term in
office must begin both after the re-election has been
conducted and in correspondence with the month of the first
election. If this holds true, President Kumaratunga's second
term could not have started before December 1999 (the date of
her re-election) and had to start in November (the month
corresponding to her first election). By that calculation,
her second term began in November 2000, giving her until 2006
to remain in power.


3. (C) Nevertheless, legal scholars disagree about when the
President's term ends. One major factor giving rise to the
current controversy was the President's attempt to overhaul
the Constitution in 2000. At that time, she supported a
draft Constitution that would have abolished the executive
Presidency after the end of her second term. The draft,
presented as a bill in Parliament, specifically delineated
the beginning of her second term as December 22, 1999. The
draft Constitution was vetted by the Supreme Court, which
deemed the document legally correct. On July 7, media
reports quoted senior UNP official and former head of the
University of Colombo Law School G.L. Peiris as saying the
Supreme Court's 2000 ruling on the draft Constitution
definitively determines that the President's term ends this
year, six years from December, 1999. While Peiris publicly
supports his party's call for elections this year, he
privately admitted to the Ambassador that the current
Constitution is vague as to when the President's term
actually ends (Reftel A).


4. (U) A second factor fueling the debate on this issue is
the timing of the President's second oath of office. She
took her second oath publicly on December 22, 1999. However,
leaked reports to the media in 2003 stated that she took
another private oath of office before the Chief Justice of
the Supreme Court in November 2000, marking the "true"
beginning of her second term. Many commentators have
questioned the legality of the so-called "secret oath." They
have said the oath was not publicized to the citizens at the
time of the swearing-in, no armed services members were
present to witness the inauguration of their Commander in
Chief, no Cabinet Ministers were present, and the National
Emblems and Anthem were not a part of the proceedings. In
addition, the oath taking was never published in the
government gazette, the nation's legal record.


5. (U) The media is rife with speculation as to what
Elections Commissioner Dissanayake will say. If he
determines that the Presidential election will not occur
until 2006, he is not legally required to issue any statement
at all in the upcoming months. (Note. With all eyes on him
and high public expectations of clarification, it is likely
he will issue his ruling, regardless of its contents.
Whatever date Dissanayake sets for the election, a Supreme
Court battle will likely ensue as the dissenting party will
file a court case challenging the Commissioner's decree. The
Chief Justice, widely perceived as the President's close
ally, will probably face public demands that he recuse
himself from the case. End note.)

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COMMENT AND U.S. POSITION
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6. (U) UNP members and others cry hypocrisy because the
President was willing to end her term in 2005 back in 2000,
but has since changed her tune. Critics complain that the
rumored "secret oath" is merely a ploy to buy the President
another year in office. The UNP is mobilizing its voter base
in anticipation of an election this year (Reftel B) while the
President and members of her Sri Lanka Freedom Party (SLFP)
publicly insist that there will be no presidential election
until 2006. Yet on July 28, the SLFP announced in the press
that they will nominate current Prime Minister Mahinda
Rajapakse as the next presidential candidate. In all, it
remains a mystery when the next presidential election will
actually take place.


7. (C) While we are not legal scholars, it seems to us that
the Constitution is at best ambiguous on this issue, and the
President has a plausible argument that her term runs until
the end of 2006. Legal experts here confirm that view. From
our perspective, this is an argument in which we should not
get involved. The US does not have an interest in whether
the election is held in 2005 or 2006. This is an issue for
Sri Lankans. It is a question of Sri Lanka's constitution,
and it should be resolved by Sri Lankans, using their
institutions.


8. (C) The US does have an interest, however, in seeing that
the controversy over the election date does not distract
attention from the peace process, or worse yet, harm the
peace process. To a certain extent, distraction is
inevitable. We will continue to urge members of both parties
to keep their eyes on the prize and to focus on peace even
when they skirmish politically. The election debate could
harm the peace process-- and the overall cause of democracy
in Sri Lanka-- if it deteriorates into an
extra-Constitutional conflict.


LUNSTEAD