POST-ELECTION UPDATE: SC SECOND-TERM RULING,

C O N F I D E N T I A L SECTION 01 OF 03 COLOMBO 000091 SIPDIS DEPARTMENT FOR SCA/INSB E.O. 12958: DECL: 02/02/2020 TAGS: PGOV PREL PREF PHUM PTER EAID MOPS CE SUBJECT: POST-ELECTION UPDATE: SC SECOND-TERM RULING, OPPOSITION COMPLAINTS COLOMBO 00000091 001.2 OF 003 Classified By: AMBASSADOR PATRICIA A. BUTENIS. REASONS: 1.4 (B, D) SECOND TERM WILL START IN NOVEMBER -------------- ¶1. (C) On February 2, a full bench of seven Supreme Court judges, including the chief justice, ruled that President Rajapaksa's second term of office would begin on November 19, 2010, the five-year anniversary of his taking office. The president's lawyers had argued the second term should not begin until November 19, 2011, saying that Rajapaksa's early call for elections should not have an impact on the length of his first term. There are two conflicting past cases in Sri Lankan history where the Supreme Court decided on the question of when a president should begin his or her second term of office, but neither case would allow for the completion of the full six-year term, as Rajapaksa's lawyers had requested. Instead those decisions said that the second term started either the day after re-election, as with the case of Chandrika Kumaratunge, or on the calendar day the person first was elected, on the first such date after the re-election was held, as in the case of J.R. Jayawardena in ¶1982. The latter appears to have guided the current court on the Rajapaksa decision. A number of observers believe the court was mistaken in the decision involving Chandrika and that this latest interpretation corrected that mistake and re-established the precedent set with Jayawardena. ELECTIONS COMMISSIONER WILL COVER GENERAL ELECTION -------------- ¶2. (C) Elections Commissioner Dayananda Dissanayaka apparently has been persuaded by the government to continue working. Contrary to his statement on January 28 to PolOff that he would not show up to work on February 1, even at the risk of causing a constitutional crisis, Dissanayaka has now told the media that he would continue working through the general elections. OPPOSITION CATALOGS COMPLAINTS -------------- ¶3. (C) In a February 2 meeting with diplomatic heads of mission, leaders of the opposition including Ranil Wickremesinghe, General Fonseka, Mangala Samaraweera, and Ravi Karunanayake, argued their case that the election was rigged and cataloged a long list of government repressive actions against Fonseka, the media, and others. The opposition leaders claimed the election was "far from free and fair" and entailed violations by the Rajapaksa government during the pre-election campaign, on voting day, and -- most significantly -- in the counting of ballots. (NOTE: Samaraweera provided further details on these accusations to PolOffs in a private meeting. See paragraphs 5 and 6 below. END NOTE.) On this basis, they said the election was a "complete fraud" and that they would be filing suit with the Supreme Court, though they confessed they had little faith in the court to rule in their favor, given its members were hand-picked by Rajapaksa. General Fonseka also went into a long listing of complaints about his treatment by the government, including the arrest and detention of his personal security guards, raids on his office, inability to travel, and more. ¶4. (C) In response to Ambassador's query about the way forward, Wickremesinghe said they were planning for the probable upcoming parliamentary elections (which would take place in early April if the president dissolved parliament COLOMBO 00000091 002.2 OF 003 next week, as many predict). Given the abuses that took place in the presidential election, Wickremesinghe called for better election monitoring and other anti-abuse measures. He said, however, that the opposition coalition that had supported Fonseka (the UNP, JVP, TNA, and others) had not decided yet whether it would stand separately or together in the parliamentary elections. (NOTE: Wickremesinghe told PolCouns privately that he thought the ideological differences between the opposition parties -- particularly Wickremesinghe's right-liberal UNP and the neo-leftist JVP -- would force the parties to stand for the elections separately. END NOTE.) In pull-asides after the opposition meeting, Wickremesinghe and Karunanayake told us that the opposition was planning to change its position from abstaining to voting against renewal of the emergency regulations at the next scheduled vote on February 5, though Karunanayake believed the government would still have enough votes to renew the regulations. MANGALA: RAJAPAKSA CHEATED, BUT STILL GATHERING THE PROOF -------------- ¶5. (C) In a follow-up to the briefing by the joint opposition leaders on February 2 for the diplomatic community, PolCouns and PolOff met privately on February 3 with Mangala Samaraweera to probe further details on the opposition's fraud case and political plans for the upcoming general election. Mangala repeated some of the arguments he had made to the diplomatic community the day before, focusing on what he believed was a pre-planned effort to intimidate the opposition representative observers at the ballot counting centers, coupled with adjustments to the vote totals as they came in to the main counting office of the Elections Commissioner in Colombo. He said the opposition was in the process of gathering affidavits from their observers, which would show many of them had been chased out of the counting centers by thugs prior to observing the final counts and receiving signed and certified tally sheets. Mangala argued that by obtaining the copies of the tally sheets and then comparing those totals sent by the districts to the totals announced in Colombo, it could be shown that changes were made. He also claimed they were trying to get statements from state employees working in the Elections Commissioner's office, to provide evidence that both Basil and Gotabhaya Rajapaksa were at the Commissioner's offices while counting was going on and that results were changed there. ¶6. (C) When pressed, Mangala admitted that the legal route of contesting the election results was not likely to lead to an overturning of the election results. He cited a previous elections-related case, which took over three years to complete, and reconfirmed that Rajapaksa had too many friends on the Supreme Court to lose this case. Instead, Mangala believed the arguments brought forth in the case could be used by the joint opposition as a campaign-platform plank with which they could win more votes than they had during the presidential election. Mangala acknowledged that if the president had rigged the presidential election he could probably do the same during the general election but said even if the recent results were replicated in the general election, the opposition would win 91 seats against the government's 134 seats. If the opposition was able to win just five more key districts, which in his mind was possible, the split would be 113 seats to 112, in the opposition's favor. He said he was worried about voter apathy and feelings of helplessness, and Post has indeed spoken with a number of voters who feel discouraged about the electoral process now and do not intend to vote in the general election. Mangala said the opposition needed to work harder COLOMBO 00000091 003.2 OF 003 to gain their voters' trust, and asked for help from the U.S. and others in the diplomatic community in getting more international monitors to position at the counting centers during the next election. COMMENT: -------------- ¶7. (C) The opposition seems slow and disorganized in the wake of Rajapaksa's victory. Although they think they have an idea of how Rajapaksa might have stolen the election -- and are convinced that he did -- they appear to have been disoriented as a group by the margin of the president's victory (and thus the scale of fraud required) and by the full-scale harassment of Fonseka after election day. It appears that the president is moving ahead at full speed with his second-term planning and is likely to keep the opposition back on their heels if they do not recover and regroup quickly. BUTENIS