2007 IWOC AWARDEE FIGHTS UPHILL BATTLE ON JUDICIAL

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SIPDIS

DEPARTMENT FOR SCA/INSB

E.O. 12958: DECL: 02/17/2019
TAGS: PGOV PREL PREF PHUM PTER EAID MOPS CE
SUBJECT: 2007 IWOC AWARDEE FIGHTS UPHILL BATTLE ON JUDICIAL

REFORM

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Classified By: DEPUTY CHIEF OF MISSION VALERIE C. FOWLER. REASONS: 1.4
(B, D)


1. (C) SUMMARY: Kishali Pinto-Jayawardena, 2007 Sri Lankan
recipient of the Secretary's International Women of Courage
Award, related frustration with the presidential election,
the Rajapaksa family, and a weak Sri Lankan civil society.
She also discussed her recent report on post-war justice,
which argued that large-scale judicial reform would better
serve justice than creation of a Commission of Inquiry. END
SUMMARY.

A ROUGH ROAD AHEAD
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2. (C) Poloff met with Kishali Pinto-Jayawardena, 2007
recipient of the International Women of Courage Award, to
discuss her post-election outlook and her recent report
"Post-War Justice in Sri Lanka: Rule of Law, the Criminal
Justice System and Commissions of Inquiry" (Report for the
International Commission of Jurists (ICJ). Pinto-Jayawardena
is a prominent attorney, journalist, and human rights
advocate in Sri Lanka.


3. (C) Pinto-Jayawardena expressed deep frustration with the
recent presidential election. While she was pleasantly
surprised by the minimal violence, she was confident that
results had been rigged. She lamented that Sri Lanka had a
history of democratic elections, even during conflict times,
and that this election's lack of credibility had shaken Sri
Lankans' confidence in the system. Characterizing voting as
an affirmation of citizenship, she predicted low voter
turnout in the April parliamentary elections and said she did
not intend to vote herself.


4. (C) In Pinto-Jayawardena's view, the threat of the LTTE
had been replaced by a "totalitarian" government, dangerous
in its family ties. She argued that President Rajapaksa
might let go of the reins a bit if he were on his own, but
the desire to pass control down the family tree even when he
left office precluded good governance. (NOTE: one of the
President's sons is standing for the April parliamentary
elections in the family's home district. END NOTE.) She
warned that international pressure would be ineffective and
that a "Burma-like situation would not be impossible." She
expressed concern over Sri Lanka's future, describing a
"vacuum" in civil society. Unlike neighboring countries, Sri
Lanka lacked strong voices and organizers willing to demand
change. Instead, Sri Lanka had only political parties, and
even academia had become politicized.

JUDICIAL REFORM KEY TO ACCOUNTABILITY
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5. (C) Unlike many human rights advocates, Pinto-Jayawardena
argued against establishing a Commission of Inquiry (COI) to
investigate war crimes and human rights violations committed
during the final phases of the war, calling instead for
widespread judicial reform. Her Report posited that COIs, as
statutorily designed in Sri Lanka, were not equipped for
large-scale inquiries into gross human-rights violations and
had been used to protect perpetrators and institutions from
accountability.


6. (C) As detailed in the Report, the Commission of Inquiry
Act of 1948 (Act) did not address whether disclosures must
lead to individual prosecutions in the court system. A
review of COIs from 1977 to 2001 found that most COI
recommendations to prosecute had not been followed. The Act
also did not address protection of victims or witnesses or

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the rights of the accused. At the same time, cases brought
directly to the criminal justice system had resulted largely
in non-indictment, acquittals, and withdrawals because of
systematic flaws in the investigatory and prosecutorial
process, lack of judicial independence, and gaps in criminal
law itself. The solution was legal reform and adherence to
rule of law.


7. (C) Despite the Report's sharp criticism of Sri Lanka
accountability mechanisms, Pinto-Jayawardena noted that the
Government of Sri Lanka had not responded negatively. She
attributed this to the Report's reliance on concrete examples
and meticulous documentation which left little for the GSL to
refute.

COMMENT
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8. (C) Our meeting with Pinto-Jayawardena highlighted once
again the pitfalls of pushing hard on accountability. As she
noted, Sri Lanka has a long but unsuccessful history of
inquiry commissions that often covered up or excused more
than they revealed. Attempts to create such a commission now
to investigate war crimes -- which may have involved top
leaders of the country, including the president's brother --
would not likely be any more successful than past
commissions. A more fruitful approach in this case could be
to quietly encourage foreign law enforcement and judicial
officials and NGOs to amass evidence of suspected crimes that
could be used in a formal judicial process. On the Sri
Lankan domestic side, little appears possible in the short
term, particularly following the president's January 26
re-election and in advance of the April parliamentary
elections. In the longer term, Pinto-Jayawardena's plan for
judicial reform and strengthening the independence and
professionalism of the judiciary offers hope for ending the
cycle of crimes and impunity.
BUTENIS