TISSAINAYAGAM'S LAWYER, CONCERNED DIPLOMATS

S E C R E T SECTION 01 OF 03 COLOMBO 000864 SIPDIS DEPARTMENT FOR SCA/INSB E.O. 12958: DECL: 09/03/2019 TAGS: PGOV PREL PREF PHUM PTER EAID MOPS CE SUBJECT: TISSAINAYAGAM'S LAWYER, CONCERNED DIPLOMATS DISCUSS NEXT STEPS REF: A. COLOMBO 855 ¶B. COLOMBO 848 ¶C. COLOMBO 333 ¶D. COLOMBO 332 ¶E. COLOMBO 281 ¶F. COLOMBO 218 ¶G. COLOMBO 171 ¶H. COLOMBO 81 ¶I. COLOMBO 54 ¶J. COLOMBO 32 ¶K. COLOMBO 25 ¶L. COLOMBO 18 AND PREVIOUS COLOMBO 00000864 001.2 OF 003 Classified By: CHARGE D'AFFAIRES JAMES R. MOORE. REASONS: 1.4 (B, D) ¶1. (S) SUMMARY: In a meeting with diplomatic representatives, recently convicted journalist Tissainayagam's lead lawyer said the appeals process could be lengthy but held out hope for a presidential pardon at some point. Tissainayagam was of two minds on the question of whether the international community should hit the GSL hard publicly or take a quieter approach, but ultimately, he recognized that he had been isolated for 18 months and trusted the international community to make the right decision on how to proceed. The lawyer opined that the Rajapaksa ruling circle would likely not resent technical criticism of the verdict -- which would, in effect, be a criticism of the Sri Lankan judiciary -- in the same way that it would resent direct criticism of the president or the country. The most important issue for Tissainayagam at this point was being moved back to New Magazine prison. In a separate discussion with Charge, the Minister of Justice said moving Tissainayagam back to New Magazine simply was not possible, given his post-conviction status. END SUMMARY. BAD NEWS ON THE APPEAL PROCESS -------------- ¶2. (C) Since just before the announcement of journalist Tissainayagam's conviction on terrorism charges on August 31, representatives of interested diplomatic missions have met at the EU mission on a regular basis to discuss developments and coordinate responses and visits to Tissainayagam in prison. On September 3, the group met with Tissainayagam's main lawyer, M.S. Sumanthiran. After recounting the charges and the defense's rebuttals (as reported in ref A),Sumanthiran discussed the appeals process in some detail. The process would go in two phases: first, an appeal to the Court of Appeals, then to the Supreme Court. Sumanthiran said the defense strategy had always been focused on the appeal phase and they had tailored their strategy and testimony accordingly. Judge Deepali Wijesundra did not normally hear terrorism cases, so the defense assumed she was brought in to deliver a tough verdict. ¶3. (S) The issue now was who would hear the appeal. The defense had 14 days following announcement of the verdict to file the appeal (they had not yet done so). On the question of the length of the appeals process, Sumanthiran said it could take "four to five years, at a minimum." (NOTE: STRICTLY PROTECT -- Sumanthiran said he had not raised the timing issue with Tissainayagam's wife due to her current fragile emotion condition. END NOTE.) Once the appeal was filed, Tissainayagam would then go back into "remand" status. This was both good and bad: good, because remand status provided a possible reason for his transfer back to the New Magazine prison, which Tissainayagam believed was safer than the current Welikada prison; bad, because the remand period did not count towards time-served in his sentence. Thus, if the appeal actually took four or five years and was COLOMBO 00000864 002.2 OF 003 unsuccessful, Tissainayagam would only then begin serving his twenty year sentence. MORE HOPE FOR A PARDON -------------- ¶4. (C) On the question of a pardon, Sumanthiran explained that Sri Lankan law required that Tissainayagam make a request to the president; the president himself could not undertake a pardon without a request. A request for a pardon did not have to entail an admission of guilt, but Tissainayagam feared the president would require him to apologize, which would amount to the same thing. Tissainayagam's father was going to have a meeting with the president arranged by some prominent Sri Lankans to discuss a pardon, but that fell through when the VIPs dropped out. Nevertheless, Sumanthiran expressed some optimism that a pardon was possible. The president reportedly told a group of foreign journalists (which may have included Reporters Sans Frontieres) that he personally had asked for this set of charges to be brought against Tissainayagam because they were not very serious and thus would not be difficult to pardon. (NOTE: This was the first time post has heard this story, though some of the other diplomats at the meeting had heard it. END NOTE.) Technically, the president could not grant a pardon as long as an appeal was on file, but Sumanthiran explained that the appeal could be withdrawn at any time if the president signaled he was prepared to issue a pardon. WHAT THE INTERNATIONAL COMMUNITY CAN DO -------------- ¶5. (C) Sumanthiran said Tissainayagam was of two minds on the question of whether the international community should hit the GSL hard publicly or take a quieter approach, but ultimately, he recognized that he had been isolated for 18 months and trusted the international community to make the right decision on how to proceed. (NOTE: At a brief diplomatic representatives-only huddle after the meeting, the consensus was that this was probably a non-problem since following initial public remarks by the U.S. and European countries, the focus would naturally shift to raising the issue privately in meetings with GSL officials. END NOTE.) Sumanthiran noted for the group that the Rajapaksa ruling circle would likely not resent technical criticism of the verdict -- which would in effect be a criticism of the Sri Lankan judiciary -- in the same way that it would resent direct criticism of the president or the country. The most important immediate issue for Tissainayagam, however, remained his transfer from Welikada back to the New Magazine prison. While he was in what was considered the best "J" section of Welikada, he was still at risk of rape and other violence from hardened criminals. The diplomatic representatives at the meeting promised to keep pressing the GSL on this issue and to keep up a regular schedule of visits. They also agreed that while it was important to continue to advocate on Tissainayagam's behalf, we must link his case to other lesser-known journalists also under threat and to the larger question of press freedom. ¶6. (C) In a separate September 3 discussion with Charge, Minister of Justice Milinda Moragoda said moving Tissainayagam back to New Magazine prison was simply not possible, given his post-conviction status. He argued that the J block of Welikada was the best possible available facility, and he promised that Tissainayagam would not be moved to the notorious, larger Boosa prison. Moragoda also said Tissainayagam was unlikely to serve 20 years -- "he'll probably serve five." A presidential pardon was "not likely" now and it was best to let the issue cool down. "In time, COLOMBO 00000864 003.2 OF 003 something can be worked out." COMMENT -------------- ¶7. (C) Post will continue to follow this issue closely and to raise Tissainayagam's case with the GSL at every opportunity, though we agree with our European colleagues that the window for public statements is likely to close quickly. Sumanthiran's point that the best approach would be to criticize the judiciary's decision (vs. the Sri Lankan system as a whole or the president directly),while also noting the positive impact of the "magnanimous" gesture of a pardon, is worth considering. MOORE