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

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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

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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,

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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