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