US embassy cable - 04COLOMBO1944

C O N F I D E N T I A L SECTION 01 OF 04 COLOMBO 001944 
 
SIPDIS 
 
DEPARTMENT FOR SA, SA/INS 
NSC FOR DORMANDY 
 
E.O. 12958: DECL: 12/03/2014 
TAGS: PGOV, PREL, CE, Political Parties, Elections 
SUBJECT: SRI LANKA:  PERSONAL POLITICAL ISSUES FOR 
PRESIDENT KUMARATUNGA 
 
REF: COLOMBO 1937 AND PREVIOUS 
 
Classified By: James F. Entwistle, Deputy Chief of Mission.  1.4 (b,d) 
 
1.  (C) Summary:  One of the major political issues being 
hotly discussed in all circles in Colombo is the exact tenure 
of President Kumaratunga's second term.  One school of 
thought holds that her term ends in 2005, while 
constitutional scholars say there is some legal basis to the 
President's contention that it ends in 2006.  Complicating 
these discussions are reports that the President may try to 
change the Constitution -- presumably to ensure her extended 
tenure as head of government.  Lawyers and constitutional 
scholars agree with the need to change the Constitution, but 
many are worried the changes will only be to benefit 
President Kumaratunga and aid her desire to stay in power. 
Perhaps even more disturbing is that the President's 
preoccupation with her own political longevity -- and the 
Opposition's preoccupation with thwarting her -- distract the 
political leadership from addressing the most urgent national 
question:  finding a peaceful resolution to the ethnic 
conflict.  End Summary. 
 
-------------------------------------- 
Background on Kumaratunga's Presidency 
-------------------------------------- 
 
2.  (SBU) President Chandrika Bandaranaike Kumaratunga was 
elected and sworn in for her first six-year term on November 
12, 1994.  She called for early presidential elections on 
December 21, 1999 after only five years in office, a move 
permitted under in the Constitution.  Winning her second term 
against United National Party (UNP) challenger Ranil 
Wickremesinghe, the President took her second oath of office 
immediately on December 22, 1999.  She had been injured on 
December 18 in an assassination attempt by the Liberation 
Tigers of Tamil Eelam (LTTE) and many interlocutors say, at 
the time, there had been a question of her fitness to rule. 
(Kumaratunga lost her eye in the attack and immediately went 
abroad for medical treatment.) 
 
3.  (C) Given the circumstances surrounding her second 
election, President Kumaratunga has been widely recognized in 
the public mindset as beginning her second term in December 
1999.  As the Sri Lankan presidency is limited to two terms, 
conventional wisdom holds that her final six-year term will 
end in 2005.  The problem is that Kumaratunga disagrees with 
this popular opinion, believing her two election victories 
won her twelve years total in office.  She has indicated 
publicly that she is staying until 2006.  According to some 
constitutional scholars, she likely has a legal basis to do 
so. 
 
----------------------------------- 
2005 vs. 2006:  The Legal Arguments 
----------------------------------- 
 
4. (C) Two Sri Lankan constitutional scholars, Professor 
Ranjith Amarasinghe and Professor Laksiri Fernando, 
separately told poloff that the Constitution supports 
President Kumaratunga's assertion that she may remain in 
office until December 2006.  According to both professors, 
the Constitution stipulates, that if a president calls for 
early elections for the second term and wins, the second term 
begins on the next date that corresponds to the beginning of 
the first term.  (Kumaratunga assumed office for her first 
term on November 12, 1994 and won her second term on December 
22, 1999.  According to the Constitution, the second term 
would begin on November 12, 2000 -- the next calendar date 
corresponding to the start of her first term.)  They both 
agree the concept is difficult to explain and is compounded 
by the fact that the Sinhala and English versions of the 
Constitution differ on this point.  However, as with all 
legal documents in Sri Lanka, the Sinhala version -- 
supporting the above argument -- prevails in this case. 
 
5.  (C) Those on the other side of the debate interpret the 
Constitution to allow the President to remain in office only 
until December 2005.  Lawyer and constitutional scholar 
Professor H.M. Zafrullah interprets President Kumaratunga's 
December 1999 oath-taking as the start of her second term of 
office.  He believes that by calling elections early, she 
ended her first term in 1999.  He notes that if she had lost 
the 1999 election, the Constitution states that her successor 
would have to assume office within two weeks of winning and 
not wait until November 2000 -- the theoretical end of 
Kumaratunga's first term. 
 
6.  (C) Professor Fernando, however, interprets the 
oath-taking as more of a political gesture, not the legal 
assumption of office.  While he feels that the President's 
second oath ceremony on December 22, 1999, was "a mistake," 
he says that it should not affect the legal start of her 
second term:  November 12, 2000.  When asked what would 
satisfy the legalities, Fernando pointed to the declaration 
of a winner by the Elections Commissioner.  (His argument has 
some inconsistencies however, since the Elections 
Commissioner declared Kumaratunga winner on December 22, 
1999.) 
 
------------ 
The Politics 
------------ 
 
7.  (C) Clouding the debate is the issue of the President's 
"secret" November 11, 2000 oath-taking.  When queried about 
the ending date of her second term, Sri Lanka Freedom Party 
(SLFP) officials say Supreme Court Chief Justice Sarath Silva 
privately administered the oath of office to President 
Kumaratunga in November 2000, allowing for her to remain in 
office until 2006.  The President's opponents hotly contest 
the legality of the November 2000 oath, with some saying that 
a president cannot take three oaths of office (November 1994, 
December 1999, November 2000).  "Oath-taking is a public 
ceremony" and secret ones belie that intent, according to 
several lawyers.  When faced with opposition, SLFP officials, 
including several ministers, tell opponents to "take the 
matter to court."  Those who believe the President's terms 
ends in 2005 think that such an exercise is futile.  Many 
interlocutors have said that, because of his political and 
personal connection to Kumaratunga, Chief Justice Silva will 
rule for the President on this issue.  Despite the legal 
arguments, constitutional expert Amarasinghe believes the 
issue regarding the end of her term is a "moral one," since 
so many citizens perceive the President's second term to be 
from 1999-2005. 
 
8.  (C) Legal arguments not withstanding, many contacts have 
told us the President is determined to stay in office -- and 
in power -- as long as possible.  Recognizing that she is 
term-limited as president, interlocutors say that Kumaratunga 
wants to change the Constitution to transfer executive power 
to a prime ministership (see below) and needs to stay in 
office as long as possible to see that happen. 
 
----------------------- 
A Constituent Assembly? 
----------------------- 
 
9.  (C) In addition to debate about the President's term, 
another topic in political circles is whether the government 
will set up a constituent assembly, ostensibly to change the 
Constitution.  The debate is not a simple one and opens up 
complex questions about which parts, if any, of the 
Constitution should be changed. 
 
10.  (C) Many politicians, lawyers, and academics agree that 
the Constitution has a need for improvement.  They highlight 
the weak electoral system as one area where change is needed. 
 They disagree, however, on the manner in which the 
Constitution should be changed.  In a constituent assembly, 
bills and other matters would only need a simple majority for 
passage.  In Parliament, constitutional change requires a 
two-thirds majority plus a simple majority affirmation in a 
national referendum.  Several lawyers have noted that in 
rulings where laws would potentially contradict the 
Constitution, the Supreme Court has required a two-third 
Parliamentary majority and a national referendum for passage, 
if the bill is not amended.  Why should the process be any 
different for actually amending the Constitution, these 
lawyers ask. 
 
11.  (C) Lawyers who oppose the idea of a constituent 
assembly say there is no precedent in a democratic country to 
change the Constitution in such a manner.  One constitutional 
scholar feels otherwise.  Professor Fernando says the current 
electoral system will always lead to a divided Parliament and 
thinks a constituent assembly is necessary to provide the 
flexibility to make changes to the Constitution.  Fernando 
believes that members of any constituent assembly should be 
elected representatives -- either all MPs from Parliament or 
members elected especially for the constituent assembly.  If 
there is a decision by the government to sit a constituent 
assembly, then some principles of the Constitution should be 
followed, according to Fernando.  As to which ones exactly, 
he could not say. 
 
12.  (SBU) Representation could be an issue in a constituent 
assembly, according to Professor Amarasinghe.  When the 
government last convened a constituent assembly in 1972, the 
SLFP was in power with five-sixths of the MPs in Parliament 
(this was prior to the current proportional election system 
now in place).  In 1972, all the MPs in the Parliament were 
converted into members of the constituent assembly.  Many of 
the opposition parties ultimately walked out because they did 
not agree with the discussions and the new Constitution was 
written largely by the SLFP government in power at the time. 
(The current 1978 Constitution was written and changed in 
Parliament, not in a constituent assembly.) 
 
--------------------------------- 
The Constitution:  What to Change 
--------------------------------- 
 
13.  (C) Whether to have a constituent assembly or not is not 
the sole issue; interlocutors are concerned about what would 
be discussed in a constituent assembly.  One of the likely 
constitutional changes that would be addressed is abolishing 
the executive presidency in favor of an executive prime 
ministership.  Most lawyers and constitutional experts agree 
with this idea, believe there would be more checks and 
balances on the power of an executive prime minister.  Even 
the two major political parties, the SLFP and UNP, at various 
times have agreed to put executive power in the office of the 
prime minister.  The problem, at present, is that many 
interlocutors -- mainly UNP supporters -- see the President's 
current efforts to create an executive prime ministership as 
solely a political move to allow her to remain in power when 
her presidential term ends.  Professor Amarasinghe has a 
different view.  Citing the President's United People's 
Freedom Alliance electoral pact calling for constitutional 
change, Amarasinghe said the April 2004 election win gave her 
and the Government of Sri Lanka (GSL) the mandate to carry 
out such change. 
 
14.  (C) Still, many are worried that the President will use 
the constituent assembly only to address changes that benefit 
her (and her desire to stay in power).  They note that the 
LTTE, in trying to end the ethnic conflict, has called on the 
GSL several times to amend the Constitution.  Several 
politicians and civil society interlocutors think that if the 
Constitution is changed now without addressing the issues 
raised by the LTTE, there could be negative consequences for 
the GSL (and the country) as it tries to find a political 
solution to the conflict. 
 
------- 
Comment 
------- 
 
15.  (C) While many seem in agreement that the Constitution 
needs strengthening, the cost of devoting too much political 
time and attention to them may be very high.  The question of 
her political longevity seems to be preoccupying the 
President more than the political legacy she could leave by 
resolving the long-standing ethnic conflict with the LTTE. 
As long as the President is devoting a majority of her energy 
to her political future, there is little hope of breaking the 
impasse in returning the negotiating table with the Tigers. 
End Comment. 
LUNSTEAD