US embassy cable - 02COLOMBO1942

C O N F I D E N T I A L SECTION 01 OF 03 COLOMBO 001942 
 
SIPDIS 
 
DEPARTMENT FOR SA, SA/INS 
 
NSC FOR E. MILLARD 
 
LONDON FOR POL/RIEDEL 
 
E.O. 12958:  DECL:  10-17-12 
TAGS: PGOV, PINS, PHUM, CE, Elections 
SUBJECT:  GSL plan to rein in executive powers in 
disarray; Election, impeachment options under review 
 
Refs:  (A) FBIS Reston Va DTG 170638Z Oct 02 
 
-      (B) Colombo 1920, and previous 
 
(U) Classified by W. Lewis Amselem, Deputy Chief of 
Mission.  Reasons 1.5 (b, d). 
 
SUMMARY 
======= 
1.  (C) The GSL's proposed constitutional amendment 
reining in executive powers has run into a major 
roadblock.  While not officially announced, the Supreme 
Court has reportedly decided that one part of the 
proposal is unconstitutional and the other subject to a 
referendum.  This apparent decision comes amid reports 
that the GSL might not have the support needed in 
Parliament to pass the amendment in any case.  With its 
plans in disarray, the government is mulling over the 
idea of calling a new election or maybe going for 
impeachment of the president.  The smoke has not yet 
cleared, but it is still possible that all the confusion 
could lead to better cohabitation ties, not worse.  END 
SUMMARY. 
 
======================================= 
Reported Legal Trouble for GSL Proposal 
======================================= 
 
2.  (SBU) The government's proposed constitutional 
amendment reining in the president's powers has run into 
a major roadblock.  Our soundings confirm October 17 
press reports that the Supreme Court has apparently 
decided the following (although it has not yet been 
officially announced): 
 
-- In addition to needing two-thirds support in 
Parliament, the part of the proposed amendment that 
would rein in the power of the president to call an 
election one year after the last election requires a 
national referendum.  The effective transfer of the 
power to call an election from the president to the 
Parliament per the proposal is so "fundamental" that the 
issue has to be put to a popular vote.  The court left 
the door open for the GSL to rewrite this part of the 
proposed amendment in some way that better protected 
executive prerogatives.  (Note:  The last parliamentary 
election was held in December 2001.  The government 
pushed ahead on this effort to rein in President 
Kumaratunga's powers out of fear that she would call a 
new election in December 2002, her first opportunity to 
do so.) 
 
-- As for the other key section, the court reportedly 
ruled that the proposal to allow crossover voting in 
Parliament is basically unconstitutional.  In doing 
this, the court apparently determined that the power of 
party whips to control MPs was a right protected by the 
constitution.  (Note:  The GSL wanted this provision in 
place as a way to protect members of other parties who 
decided to support the proposed amendment.  Without such 
protection, members who vote against their party's 
announced position can be tossed out of Parliament after 
legal maneuvering.) 
 
(Note:  It is not clear when the Supreme Court's 
official decision will be announced, but it is expected 
soon.) 
 
======================================= 
Government Lacking Support In Any Case? 
======================================= 
 
3.  (C) The Supreme Court's apparent decision comes amid 
reports that the GSL might not have the requisite two- 
thirds support needed in Parliament to pass the proposed 
amendment to begin with.  With a vote supposed to take 
place in the next several weeks, the government does not 
seem to have rallied enough support from other parties 
to win.  In fact, the government's campaign for the 
proposed amendment seems to be running out of steam as a 
possible vote draws nearer. 
4.  (C) Breaking down the numbers, Jehan Perera, the 
director of a well-known think-tank, told us that the 
government can only count on about 130 of the 150 MPs it 
needs in the 225-member Parliament.  The governing 
United National Party (UNP) is having trouble luring 
members of President Kumaratunga's People's Alliance 
(PA) party to its side, despite its initial success in 
siphoning off a handful of PA MPs.  In addition, he 
related, the UNP is even having trouble holding onto 
members of its own coalition, such as MPs from the Sri 
Lanka Muslim Congress (SLMC).  (Note:  Several SLMC MPs 
are clearly frustrated with the GSL over the peace 
process, especially the involvement of SLMC leader Rauf 
Hakeem in the peace effort, and are playing hard to 
get.)  In a sign of its success on the peace process 
front, however, the UNP can count on the support of the 
16 MPs of the Tamil National Alliance (TNA), Perera 
noted. 
 
========================== 
Mulling Over Other Options 
========================== 
 
5.  (C) A New Election?:  With its plans for the 
proposed amendment in real disarray, the GSL is 
reportedly mulling over the idea of calling a new 
election or maybe going for impeachment.  Milinda 
Moragoda, a key minister and close adviser to the prime 
minister, told us that he tentatively favored the idea 
of calling a new election.  In his estimation, given the 
popularity of the peace process, the UNP could count on 
picking up a good number of seats if an election is held 
soon.  Simultaneously, the PA could expect to lose quite 
a few seats, while the UNP's ally, the TNA, picked up 
seats.  He elaborated on two crucial problems with this 
option.  First, most UNP MPs were not very enthusiastic 
about entering into what could be an unpredictable 
election process.  Second, it was not clear 
constitutionally whether the PM and the governing 
coalition could call election on their own volition or 
whether they needed the approval of the president. 
(Note:  Although there is plenty of ambiguity, a reading 
of the constitution tends to indicate that only the 
president has the power to call an election and 
Kumaratunga has indicated that she has no plans to do so 
-- See more on this issue below in para seven.)  (Note: 
Ref A FBIS report indicates that the cabinet has 
formally decided to go for a new election.  Best that we 
can figure, the report is not accurate.) 
 
6.  (C) Inpeaching the President?:  Another option 
involves the impeachment route.  Moragoda noted that 
there are a number of UNP MPs who want to move forward 
with a long-standing plan to impeach Kumaratunga on 
abuse of power and other charges.  The supporters of 
this course are vocal and influential in the UNP. 
Moragoda remarked, however, that they do not have the 
ear of the PM, who is reluctant to go down this track 
because it would lead to distractions that would 
probably get in the way of GSL initiatives, including 
the peace process. 
 
================================= 
Presidential Assistant's Reaction 
================================= 
 
7.  (C) The president's office clearly is not unhappy 
over the government's conundrum on what to do.  In a 
meeting with PAO and polchief, Harim Peiris, a 
presidential media adviser, appeared quite satisfied 
regarding what he had heard about the Supreme Court's 
apparent decision.  He remarked that the court was only 
taking the position that the president's office had held 
since the proposal was first made.  Asked about possible 
next steps by the government, Peiris speculated that it 
probably would not go for impeachment, which was too 
messy.  As for a new election, Peiris was clear that he 
thought that only the president had the ultimate power 
to make that decision and she had publicly stated that 
she had no intention of doing so.  It was also possible, 
Peiris allowed, that the government might rewrite its 
proposed amendment, framing it to pass the court's 
muster.  All in all, Peiris thought that cohabitation 
would muddle along, with no great shifts.  He stressed 
that the cohabitation situation would be greatly 
improved if Prime Minister Wickremesinghe would order 
all members of his cabinet to quit what Peiris termed 
"harsh attacks" on the president, who only wanted to be 
"treated like a lady." 
 
======= 
COMMENT 
======= 
 
8.  (C) The smoke has not yet cleared on this situation. 
Indeed, although there clearly has been a leak, the 
Supreme Court's decision has not yet been formally 
announced and it is possible that initial reports on its 
contents may be inaccurate.  All that said, it does seem 
that the government has suffered a setback in its 
efforts to marginalize the president.  President 
Kumaratunga has played a weak hand very well and seems 
to have put the government on the defensive for the 
moment.  It is possible that this will unnerve the GSL 
and make it press harder against her, perhaps by 
precipitating a potential constitutional crisis over who 
has the power to call a new election.  At the same time, 
it is possible that the government may take the opposite 
tack and decide to try harder to work with her.  In 
fact, the GSL may be leaning in this direction already 
per its recent decision to engage the president in 
"joint" meetings on peace process and national security 
issues (see Reftels).  If the government chooses this 
latter option and does not to hit the panic button, the 
present convoluted situation might lead to improved 
cohabitation ties, not worse.  END COMMENT. 
 
9.  (U) Minimize considered. 
 
WILLS