C O N F I D E N T I A L SECTION 01 OF 04 COLOMBO 000920

SIPDIS

SIPDIS

DEPARTMENT FOR SCA/INS
MCC FOR D NASSIRY AND E BURKE

E.O. 12958: DECL: 06/25/2017
TAGS: PGOV PREL PTER PHUM MOPS CE
SUBJECT: AMBITIOUS CHIEF JUSTICE BREAKS AWAY FROM PRESIDENT

REF: A. (A) COLOMBO 00824

B. (B) COLOMBO 00265

C. (C) COLOMBO 00152

Classified By: charge d'affairs James R. Moore, for reasons 1.4(b,d).


1. (C) SUMMARY: In a shift from regularly supporting the
President in its rulings, the Supreme Court, headed by Chief
Justice Sarath De Silva, made several decisions this month
that the public widely hailed as justice served by a newly
independent judiciary. Legal experts say, however, that
while they are also pleased with the recent rulings, they are
less the result of an improved judiciary, than a product of
De Silva's political ambitions and new alliances. Earlier in
the year, international organizations expressed concerns over
De Silva's influence over the judiciary in annual reports and
recommended inquiries into the allegations that De Silva
unfairly manipulated decisions. Though he would like to, it
is unlikely the President will be able to oust De Silva
before he retires from the Court in 2009. Meanwhile, legal
observers continue to worry about De Silva's potential impact
on the judiciary and the peace process. End Summary

RECENT DECISIONS HAILED AS JUST AND INDEPENDENT
-------------- --


2. (C) The Supreme Court, headed by Chief Justice Sarath De
Silva, has shifted over the past month from regularly
supporting the President in its rulings to deciding against
the Government on key issues. When former President
Chandrika Kumaratunga appointed De Silva over more senior
judges to sit as Chief Justice of the Supreme Court in 1999,
the public criticized De Silva as a tool of the Kumaratunga
administration. However, in 2005, De Silva ruled that
Kumaratunga would have to step down from office one year
earlier than expected, paving the way for then-Prime
Minister Rajapaksa to run for President.


3. (C) After Rajapaksa won the Presidential election, De

Silva continued to support him in significant court cases.
In 2005, De Silva's bench issued an injunction to keep police
from further investigating the President's alleged
misappropriation of tsunami funds. In March 2006 the Court
ruled the investigation violated Rajapaksa's fundamental
rights and ordered a United National Party (UNP)
parliamentarian and two others to pay the President
compensation for opening the investigation. In October 2006,
De Silva ruled to de-merge the Tamil dominated North and East
provinces, a politically sensitive and important decision for
the President and the JVP (ref B).



4. (C) In the following cases this month, however, De Silva
reversed this trend and ruled against the President in a
string of popular decisions many hailed as brave and just in
its protection of fundamental rights.

--June 8: The Supreme Court issued an interim order to
prevent the Inspector General of Police from taking steps to
evict Tamils from Colombo or prevent them from entering
Colombo despite orders widely believed to have come from the
Ministry of Defense (ref A). (Note: De Silva was not on the
bench for this case but sources close to the Court told us De
Silva was behind the decision. End Note)

--June 14: De Silva issued a stay against Government plans to
sell nearly 25 percent of its shares in Sri Lanka Telecom to
a Malaysian company. The Court also subpoenaed all
Government documents related to the sale.

--June 18: De Silva granted Tiran Alles's petition to file a
Violation of Fundamental Rights case against the Government

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for his arrest on May 30. Alles was arrested on charges of
supporting terrorism after the President fired Alles's
allies, Mangala Samaraweera and Sripathi Sooriyarachchi, from
their ministerial posts. The Government also froze business
accounts for Alles's two newspapers, which were critical of
the President and his policies, forcing them to close.
Observers of the case said the Government's actions were
politically motivated.

--June 19: The Court permitted a prominent UNP member to file
a Violation of Fundamental Rights case against the Government
for bribery solicitation and harassment of his company,
Sevanagala Sugar Industries.

DE SILVA'S MOTIVES POLITICAL, NOT JUDICIAL
--------------


4. (C) Legal insiders say that while they are pleased with
the recent rulings, they are not necessarily the result of an
improved judiciary, but rather, are born in part out of De
Silva's political ambitions and alliances. Embassy contacts
say De Silva has close ties to members of the Sinhalese
nationalist Janatha Vimukthi Peramuna (JVP), who are
increasingly displeased with the Rajapaksa administration and
who back De Silva's recent decisions. Former Attorney
General and De Silva colleague, Shibly Aziz, told us De Silva
was "riding the wave" of JVP and Jathika Hela Urumaya (JHU)
support. He cited the rapid fire manner in which the Court
issued decisions in June designed to target the President and
his Administration and win popularity with the public. Aziz
explained that De Silva was playing to Buddhist sensitivities
while portraying himself as a populist who is not anti-Tamil.
Bhavani Fonseka, Senior Researcher at the Center for Policy
Alternatives (CPA), claimed that De Silva made the
politically savvy decision to stay the eviction of Tamils
from Colombo in order to garner UNP and public support while
still maintaining his allegiance to the JVP which expressed
its disapproval of the evictions in a June 7 session of
Parliament. Saliya Pieris, a prominent private attorney that
tries Supreme Court cases, told us other judges privately say
De Silva has gone as far as engineering cases he wants to
adjudicate by inviting petitioners to file their case using
lawyers known to him.

DE SILVA COURTING UNP
--------------


5. (C) Fonseka told us De Silva has political ambitions and
is making judicial decisions with the aim of earning popular
support and additional political backing. She said De Silva,
who would need the backing of a major political party to
achieve his political ambitions, has "sent feelers" to the
largest opposition party, the UNP. Aziz, a UNP member, said
De Silva was certainly sending "signals" to the UNP. Both
Aziz and Pieris thought De Silva may later reverse his
previous decision that the UNP could not expel its party
members who crossed over to the Government last winter (ref
C). After an initial defeat at the Supreme Court, the UNP
re-filed its case with the District Court who ruled the UNP
could not expel members who crossed over without an official
disciplinary inquiry to find the members in violation of
party rules. Aziz said the UNP is currently conducting such
an inquiry. If successful and upheld by the Supreme Court, a
finding in the UNP's favor would mean those members who
crossed over to the Government's coalition would lose their
seats in Parliament and the President's slim majority would
be in jeopardy. Nonetheless, Pieris thought it was likely De
Silva gave SLFP members Sooriyarachchi and Samaraweera
assurances that they would not lose their Parliament seats if
they crossed over to the opposition as they did on June 19.

ONLY DE SILVA MATTERS

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--------------


6. (C) Aziz told us that never in the judiciary's history
has there been a chief justice with such absolute control
over the rest of the country's judges. Aziz and Pieris said
De Silva is charismatic, cunning, and vindictive, as well as
one of the great legal minds of Sri Lanka, making him the
last person anybody wants to challenge. From the Supreme
Court down to the Magistrate Courts, De Silva dominates.
Although there are 11 other Supreme Court justices, the Chief
Justice chooses which ones sit on a given bench (usually
consisting of three judges per case). Aziz said De Silva
picks the most compliant judges regardless of their
seniority. Pieris told us that even when De Silva is not
personally on the bench, the Supreme Court justices make
decisions approved by De Silva. Pieris said the only
Supreme Court justice who dares challenge De Silva, Dr.
Shirani Bandaranayake who is second in seniority, has now
been marginalized. Aziz and Pieris point to the small number
of dissenting opinions written during De Silva's tenure as
further evidence of his dominance.


7. (C) Pieris also said that De Silva uses punishments and
rewards to get what he wants. Pieris claimed he disbars
lawyers who criticize him and withholds career opportunities
from his adversaries. Transparency International noted in
its 2007 report on Sri Lanka: "Judges who do not tow the
political line are warned, and if incorrigible, are dismissed
on one pretext or another. Conversely, judges who are
politically in line with the administration are shielded from
disciplinary action despite evidence of corrupt practices,
including bribe taking..." Although no one openly opposes
him, Pieris said, judges at all levels privately say they are
unhappy.

BAD NEWS FOR THE JUDICIARY, AND PERHAPS, PEACE
-------------- -


8. (C) Sri Lanka has reasonable legal provisions to
safeguard judicial independence. The Constitution provides
for a Constitutional Council that ratifies the President's
nominations to the Supreme Court. However, the council
lapsed in November 2005 and President Rajapaksa failed to
appoint new members. The Government said it is waiting for
smaller political parties to nominate the last remaining
member. Meanwhile, the President has unilaterally appointed
two Supreme Court judges. Fonseka told us these appointments
were made in consultation with De Silva and were more
influenced by De Silva than the President.


9. (C) Before the recent Supreme Court decisions,
international organizations highlighted their concern that
Sri Lanka's judiciary was increasingly politicized and
largely blamed De Silva. In a statement at the UN Human
Rights Council's fifth session held in Geneva, Secretary
General Nicholas Howen of the International Commission of
Jurists (ICJ) expressed concern about the "constitutional
paralysis that is damaging the independence of Sri Lanka's
institutions, including the judiciary." In May 2007, the
Asian Human Rights Commission (AHRC) issued a report
outlining its "serious concerns" about Sri Lanka's judiciary.
The report focused on "power increasingly arbitrarily
exercised by the Chief Justice" and recommended an
independent inquiry into "outstanding questions of abuse of
power on the part of Sri Lanka's Chief Justice." Likewise,
Transparency International reported this year that
"corruption is one outcome of Sri Lanka's cowed judiciary.
The situation has worsened since 1999 when Sarath De Silva
was appointed Chief Justice." The report also recommended an
inquiry into allegations against De Silva.


10. (C) Aziz told us he feared the "rule of law was breaking

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down." Pieris said De Silva is potentially dangerous for the
nation because he will be the ultimate reviewer of any
negotiated peace settlement between the Liberation Tigers of
Tamil Eelam (LTTE) and the GSL. Pieris said legal observers
fear that De Silva would review any negotiated peace
settlement not with objective judicial scrutiny, but rather,
politically, as he did in the 2006 North and East de-merger
case. The AHRC said in its 2007 report, "The
constitutionality of any political proposals concerning the
ongoing conflict between the Government of Sri Lanka and the
LTTE has ultimately to be taken before the Supreme Court. In
the context of the current undermining of the independence of
the Court, the ultimate fate of these proposals remain in the
pale of political decision making and not in the sphere of
objective judicial scrutiny."

PRESIDENT'S HANDS ARE TIED
--------------


11. (C) Thus far, President Rajapaksa has remained publicly
silent on De Silva and his recent rulings, but there is
little doubt he is unhappy with the Chief Justice. Supreme
Court Justice Jagath Balapatabandhi (strictly protect) told
our political FSN that, in mid-May, President Rajapaksa
privately asked De Silva to retire. He said the President
identified Supreme Court Justice Nihal Jayasinghe as his
desired replacement. Pieris told us Jayasinghe is the fourth
most senior on the bench and known as more pliable than De
Silva. If De Silva does not voluntarily retire, the
President would have to convince Parliament to impeach De
Silva to put his man in the Chief Justice's seat, which is
unlikely given De Silva's current level of public support.
De Silva retires in 2009. In the meantime, President
Rajapaksa consistently appoints Jayasinghe over the more
senior Shirani Bandaranayake as acting chief justice when De
Silva is away.


12. (C) COMMENT: The public widely hailed the Supreme
Court's recent decisions as an independent stand against the
Government to protect the rights of people and punish
corruption. It appears, however, these cases were not
decided entirely on their merits and, in at least in several
instances, stem from the political ambitions of a charismatic
and powerful chief justice. The Court may be independent, but
does not appear to be fully objective. De Silva's recent
decisions against the President tracks closely with the
President's declining support within his governing coalition
and mounting international criticism of his administration.
In the absence of any forceful persuasion by the President or
a resurgence in the President's popularity, De Silva can be
expected to continue to decide future cases according to what
he thinks will win him the most political mileage and popular
support.

MOORE