NEW SRI LANKA MINISTER OF JUSTICE AND NEW SUPREME

C O N F I D E N T I A L SECTION 01 OF 02 COLOMBO 000697

SIPDIS

DEPARTMENT FOR SCA/INSB

E.O. 12958: DECL: 06/25/2019
TAGS: PGOV PREL PREF PHUM PTER EAID MOPS CE
SUBJECT: NEW SRI LANKA MINISTER OF JUSTICE AND NEW SUPREME
COURT FACE CHALLENGES AND OPPORTUNITIES IN A DIFFICULT
LEGAL ENVIRONMENT

Classified By: CHARGE D'AFFAIRES JAMES R. MOORE. REASONS: 1.4 (B, D)


1. (C) SUMMARY: On July 2, President Rajapaksa swore in
Milinda Moragoda as the new Minister of Justice and Law
Reforms. Earlier in June, the President appointed a new
Chief Justice, Asoka de Silva, to replace former Chief
Justice Sarath de Silva, who many observers felt had
"hyper-politicized" the Supreme Court during his tenure.
These two new senior appointments could help change the tenor
of Sri Lanka's legal system, yet fundamental rule of law
problems weigh against any easy changes, and the overall Sri
Lankan legal system remains deeply troubled. The main
problems continue to be the overarching influence of the
President, the overreaching jurisdiction and actions of the
Ministry of Defense, threats against lawyers and impunity for
abuses which not only includes human rights violations but
also popularly-supported vigilante killings against certain
criminals. While large-scale change may not be possible in
the short term, the influence of these new appointments could
set the stage for positive changes in the longer term. END
SUMMARY.
THE NEW APPOINTMENTS MAY BE POSITIVE STEPS...

2. (C) The appointment of the vibrant and well-regarded
Milinda Moragoda as the new Minister of Justice and Law
Reforms offers some grounds for optimism. Post regards him
as an intelligent and savvy politician who, despite leaving
the opposition UNP in 2007 to go over to the ruling
coalition, has thus far avoided branding himself narrowly
within the president's shadow. In private meetings, he has
indicated his receptiveness to reformist ideas, while at the
same time indicating that what he may be able to accomplish
is limited. The previous minister was ill and languished for
several years before his death at the end of May, so the
Ministry has been without an active head for an extended
period.

3. (C) Moragoda told Charge on July 9 that because of the
recent relative inactivity at the top of the Justice
Ministry, he will need to carve out space for a leadership
role, and quickly. He expects to be in this position only
until Parliamentary elections are held, which many expect to
take place in early 2010, and must take place by April 2010.
Moragoda has said he hopes to reduce polarization between the
Justice Ministry and the police. He told Charge that
President Rajapaksa asked him specifically to focus on crime
within the prison system, especially that involving drug
trafficking.

3. (SBU) The June appointment of Asoka de Silva as the chief
justice was widely welcomed even as observers regretted that
this appointment was not made through the involvement of the
Constitutional Council. He is known as a capable and fair
jurist and is expected to work more collaboratively with his
colleagues. He served as a judge on the International
Criminal Tribunal for Rwanda which may serve to give him a
fresh perspective in dealing with some of the rule of law
challenges in Sri Lanka.
...BUT THE JURY IS STACKED AGAINST CHANGE

4. (C) Sri Lanka's legal system faces three key challenges.
First, the executive has exerted almost complete control
over judgments and procedures. Second, the Emergency
Regulations and the Prevention of Terrorism Act have
transferred many legal issues to the Ministry of Defense.
Lastly, many private lawyers attempting to push for more
consistent and transparent application of laws have been
threatened and attacked by the Executive and Defense
establishments. In addition, the issue of impunity, which
not only includes the mysterious disappearances of and
attacks on political opponents but also comprises a system of
vigilante justice to deal with criminals prior to trial
through extra-judicial killings that seems to discourage many
from trusting the judicial system.

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5. (C) The Ministry of Defense controls key
responsibilities in the administration of frequently used
security laws. Their ability to detain and torture suspects
held under these laws is not constrained by oversight from
the Ministry of Justice or the courts. The Ministry of
Defense has utilized these powers for perceived security
gains which, in the view of many in civil society, cause
longer term harm to the overall rule of law in Sri Lanka.

6. (C) Lawyers have been subjected to both threats and
attacks. The Ministry of Defense recently published on its
website an ominous article entitled "Where Are the Human
Rights Violators" which equated lawyers with the causes of
their clients. In October 2008, one prominent human rights
lawyer had a grenade tossed into his house, which fortunately
failed to detonate. In recent months, several lawyers have
withdrawn from human rights cases citing pressure on them to
do so from the police forces.

7. (C) Impunity is one of the most serious impediments to a
functioning rule of law in Sri Lanka. This impunity comes in
several forms - whether systematic, deliberate or popular.
Prosecution of cases is very slow - it often takes years
before a case is brought to trial. In terrorist or security
cases, suspects are likely to spend protracted periods of
time in prison without legal representation and under the
jurisdiction of the Ministry of Defense before their cases
are finally heard. In such cases, witnesses sometimes move,
disappear or are pressured to not testify. If a suspect is
released for lack of evidence or other cause, he or she is
unable to file a case for their unfair detention. The
deliberate cases of impunity, those directed against
political opponents of the executive and those targeted by
the military or paramilitary organizations, remain a
significant issue that has yet to be addressed in any
effective way. Finally, vigilante justice often substitutes
for the judicial system, with an apparently high level of
popular support in some instances and areas. For example, in
Batticaloa, three suspects in a child rape case were killed
while "trying to escape from police." Such cases are not
uncommon. Credible media sources estimate that so far this
year over 100 suspects have been killed trying to escape from
police custody. While many of these persons were suspected
of egregious crimes, the legal system was not allowed to
judge or punish these cases.

8. (C) COMMENT: The appointment of these two new senior
officials in the Sri Lankan legal system is a welcome step
forward. Addressing the weaknesses of the judicial system
in Sri Lanka will require political will over a sustained
period of time. These new appointments may provide an
opportunity for Sri Lanka to begin to remedy some of the
flaws of the legal system, many of which predate the fight
against the LTTE. USG assistance can play an important role
in strengthening the institutional capacity for much needed
legal reform.
MOORE