POSTED AT 06:41 AM 21-04-2019
Checkmate: Inside Ahimsa Wickrematunge’s Legal Gambit Against Gota
Court filings obtained by Sunday Observer from the United States District Court for the Central District of California paint a striking picture of how former Defence Secretary was set upon by a legal ambush in the empty car park of a Los Angeles supermarket two weeks ago today (7).
Ahimsa Wickrematunge has emerged in recent years as a fierce champion of justice for her father, renowned journalist and founding editor of The Sunday Leader Lasantha Wickrematunge, who was ambushed and killed a stone’s throw from the Ratmalana High Security Zone on the morning of January 8, 2009.
With local CID investigations into her father mired in political interference from all corners of a reluctant Government, and with Rajapaksa seemingly untouchable in domestic courts, the younger Wickrematunge began exploring international remedies to hold her father’s killers accountable. Last November, Ahimsa Wickrematunge revealed publicly that she had told CID officers investigating her father’s murder that he had confessed to her “he was likely to be killed by Gotabaya Rajapaksa for having exposed the MiG deal,” a fact the CID reported to the Mount Lavinia Magistrates Court.
Over the last several years, she continued to collect evidence, and established a connection with the San Francisco-based Centre for Justice and Accountability (CJA), which has had a history of holding dictators and human rights abusers accountable in jurisdictions around the world. With the onset of the domestic political crisis and the abortive attempt to remove the chief investigating officer in the Lasantha murder, Inspector Nishantha Silva, from the CID, Ahimsa and the CJA redoubled their efforts to prepare a civil case against those she believes are responsible for killing Lasantha Wickrematunge.
Summons issued by a US District Court that Gotabaya Rajapaksa has denied were served on him.
In 1992, the American legislature passed a law to “carry out obligations of the United States under the United Nations Charter and other international agreements pertaining to the protection of human rights by establishing a civil action for recovery of damages from an individual who engages in torture or extrajudicial killing.” This law was enacted as the Torture Victims Protection Act (TVPA).
Under the TVPA, “an individual who, under actual or apparent authority or colour of law of any foreign nation subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal represenative.” Under the act, extrajudicial killing is defined as “a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
CJA and Wickrematunge used this law, and a much older statute that allows US persons to be punished for violations of international humanitarian law, to prepare a case against Gotabaya Rajapaksa, the US citizen and former defence secretary whom Wickrematunge alleges masterminded her father’s killing. Rajapaksa has repeatedly denied over the years all allegations that he or the Ministry of Defence played any role in the assassination of Lasantha Wickrematunge or any subsequent coverup.
Under the civil law of the United States, Ahimsa Wickrematunge and CJA would have to do more than file a case in a US District Court. They would also be responsible for ensuring that Rajapaksa was personally served on US soil with a summons to appear before court and a copy of their complaint. Their opportunity arose in March this year when Rajapaksa, who is on trial in the Permanent High Court at Bar for criminal misappopriation of public property, gained permission from that court to travel to the United States for personal reasons.
Per records reviewed by Sunday Observer, Gotabaya Rajapaksa travelled from Sri Lanka to Los Angeles in an Emirates First Class suite, departing early on the morning of March 27, 2019, and arriving at the Los Angeles International Airport the same day at 1:50 PM. According to a sworn declaration on file in a US Court, Rajapaksa “was placed under surveillance upon his arrival to the United States,” indicating that Wickrematunge may have had advance knowledge of his itinerary.
For the next week, as Rajapaksa remained under surveillance, Wickrematunge and CJA completed the final preparations for their court filings, and on Thursday, April 4, they filed a damning 37 page complaint in the Central California District Court alleging that Rajapaksa played a key role in instigating and covering up the “extrajudicial killing” of Lasantha Wickrematunge and other attacks on journalists. Rather than merely alluding to “command responsibility,” the complaint cites chapter and verse of specific actions alleged to have been taken directly by Rajapaksa himself that led to the the murder and cover up.
Alongside the complaint, CJA filed a motion to keep the complaint and its existence under seal – preventing the public or Rajapaksa from learning of its existence – until Defendant Gotabaya Rajapaksa could be personally served with a summons for the case. An affirmation tendered to court by Ahimsa Wickrematunge’s lead attorney, Nushin Sarkarati, sheds light on the decision to ask the court to keep the case’s existence a secret.
The affirmation explains that Ahimsa Wickrematunge alleges that Rajapaksa “instigated and authorized the extrajudicial killing of Lasantha; had command responsibility over those who executed the assassination; and incited, conspired with, or aided and abetted subordinates in the Sri Lankan security forces and military intelligence to carry out the attack,” as a part of “a wider campaign and government policy to persecute journalists reporting critically on the Rajapaksa government.”
“Defendant has all the resources of his political resources at his disposal. The allegations against him are extremely serious. Similar lawsuits against other visiting former foreign officials for grave human rights violations have been successful. These circumstances lead me to believe that, if the Defendant became aware of the filing of this case, he would take effective steps to prevent service of the complaint upon him.” She concluded that CJA and Wickrematunge only required the court record to be sealed until the complaint was served. “This should only be a matter of days.”
Meanwhile, Gotabaya Rajapaksa had travelled north of Los Angeles to an estate in Fresno, California, with an ally, prominent businessman and media personality. He returned to Los Angeles the following day, staying at the residence of former Sri Lankan Consul General in Los Angeles Malraj De Silva. The De Silva residence is located in a access-controlled gated community east of Los Angeles.
Rajapaksa was tracked attending a private event at the Los Angeles Hilton with his travel agent on the evening of Saturday, April 6, but investigators did not have an opporunity to safely approach him to execute the service of the summons.
The following evening, April 7, Gotabaya Rajapaksa’s son Manoj drove to Malraj de Silva’s residence to pick up his parents. Per the Proof of Service declaration filed by the individual who served him, the former defence secretary “was driven by his son, Daminda Manoj Rajapaksa.”
“He was followed to a Trader Joe’s parking lot where he was identified via photograph and by name. Defendant began to take the paperwork, then pulled his hand away once the process server stated he was being served. Defendant was served with the Complaint and Summons. The serve was videotaped and photographed.”
A flummoxed Rajapaksa, standing stunned at the supermarket carpark in the tranquil California suburb of Montrose immediately contacted confidants and began to peruse the complaint and summons with which he was served, taking photographs on his iPhone to share with his attorneys and political allies. Before long, social media erupted with reports that Gotabaya Rajapaksa had been served with a civil suit for the murder of Lasantha Wickrematunge.
Due to the time difference, the events unfolding in California on the night of Sunday April 7 were being experienced on the morning of Monday April 8 in Colombo. Telephone calls from California reached political allies of Gotabaya Rajapaksa in Colombo conveying news of the service of papers, and seeking assistance to prevent police officers from the Criminal Investigation Department (CID) from cooperating with court proceedings in Colombo.
On Monday morning itself, representatives of at least two power centres within the government hastilycontacted senior civil prosecutors seeking a directive preventing CID officers from giving testimony in foreign judicial proceedings, but were sharply rebuffed, according to officers of the Attorney-General’s Department who witnessed the exchange at an official event outside Colombo. Meanwhile,spokesmen for Gotabaya Rajapaksa were instructed to deny that he was served papers in California, and to state that he was in Nevada at the time.
Gotabaya Rajapaksa even denied the story to fellow members of the former first family, assuring his nephew MP Namal Rajapaksa that the story was false and that he had not been served with papers. The young MP within hours issued a public statement in defence of his uncle denying that he had been served with any legal papers.
Even as acolytes were being instructed to lie about the lack of service of summons, Rajapaksa himself hastily cancelled his booking for a First Class suite on an Emirates Airbus A380 for his return flight to Colombo that was scheduled to depart the following Wednesday (10). Within hours of the cancellation, Rajapaksa was advised to rebook the flight because his foreign travel permission from the Permanent High Court was to expire on Friday, April 12, and missing this date would jeopardise his standing with the court. The flight was rebooked, but unfortunately in business class, as first class suites were no longer available.
Meanwhile Ahimsa Wickrematunge and CJA remained completely mum, refusing to comment even to confirm that a case had been filed, despite the avalanche of social media speculation and a press release alluding to the case, isssued on behalf of another plaintiff who had filed legal action against Rajapaksa.
By Tuesday (9) morning in Colombo, a private investigation firm in California had posted a photograph of Rajapaksa being served in the Trader Joe’s supermarket car park in Montrose, as his wife Ioma Rajapaksa looked on, giving lie to the former defence secretary’s denials and causing a stunning embarassment for nephew Namal Rajapaksa who had come to his defence unawares, having unsuspectingly taken his uncle’s denial at face value.
This was not to be the last surprise of the week for Namal Rajapaksa and his parents at the hands of the former defence secretary. The former first family had been assured by Gotabaya Rajapaksa that he had initiated the process of renouncing his US citizenship to enable him to contest in the upcoming presidential elections as a candidate of the Sri Lanka Podujana Peramuna (SLPP), an eventuality that Namal Rajapaksa and other SLPP stalwarts had been browbeaten into accepting by Gotabaya’s formidable political support machine.
But after consultations with his attorneys in the United States and Sri Lanka, it transpired that Gotabaya Rajapaksa had not yet submitted the application to renounce his US citizenship to a United States embassy – the only way under US law to begin the process. The previous assurances given by the former defence secretary to members of his family and the media, that he had submitted his papers at the US embassy in Colombo on March 6, turned out to be false.
As this news reached SLPP stalwarts, Gotabaya Rajapaksa was struck by a stunning breach of privacy as details of his Emirates flights and cancellations came to be posted on social media.
Included in the social media posts were not only copies of his air tickets and boarding passes, but also the details of telephone calls made on his behalf by Los Angeles travel agent Upul Dharmadasa seeking an upgrade to First Class for the Rajapaksa couple.
The fidelity of the leak was exceptionally striking since the flight bookings were paid for with Emirates frequent flyer miles, as Gotabaya Rajapaksa and his wife Ioma both enjoy the most elite “Skywards Platinum” status with the Dubai-based airline. The bookings were made directly with Emirates and not through a travel agency.
The only persons with knowledge of Dharmadasa’s role would have been the Rajapaksa couple, Dharmadasa himself, and those close enough to have been entrusted with the sensitive details.Be that as it may, Dharmadasa succeeded in securing first class upgrades for Rajapaksa and his wife on their original flights during the rebooking process, albeit not in adjoining seats.
While spokesmen and social media allies continued to deny that Rajapaksa was facing a suit for the extrajudicial killing of Wickrematunge, going so far as to charge that the photographic evidence had been forged, several of his attorneys began making travel plans of their own.
Some who were in Sri Lanka took wing for the United States for consultations with lawyers handling the California affair. Others who had left the island for the April court vacation were summoned back for emergency consultations through the traditional new year weekend.
Gotabaya Rajapaksa arrived at the Bandaranaike International Airport on Friday (12) morning, flanked by supporters at almost the moment he disembarked from the aircraft.
Addressing reporters, he stated that he had gone to the United States to consult lawyers about the renunciation of his American citizenship, but that he would have to file the necessary paperwork in Colombo – a task he undertook to perform no sooner he got the greenlight from an unspecified “they”.
While his acolytes heard what they wanted to hear and broadcast to the national media that the former defence secretary had “completed steps to” renounce his dual citizenship, the truth was that this carefully prepared statement from Rajapaksa was just the latest in a series of declarations and assurances about renouncing his US citizenship – tabulated separately – datingback to at least July 2015.
Alas, the wordplay was insufficient to impress the SLPP leadership, evident from the fact that not a single SLPP leader was present among the throngs of supporters that greeted him at the airport.
On the question of presidential candidacy, the focus of the insurgent opposition party has shifted to prospective candidates who are free from foreign allegiances and not facing legal jeopardy in not one, but two jurisdictions.
With Chamal Rajapaksa, Shiranthi Rajapaksa, Kumar Welgama and other viable candidates entering the spotlight, the former defence secretary is under advisement to refrain from submitting his papers to renounce his American citizenship without a public assurance from Mahinda Rajapaksa that hewould be selected as his party’s candidate.
This development, while earth shattering for those who had invested heavily in a Gotabaya Rajapaksa presidency, frees the former Defence Secretary to channel his personal support base of former military personnel, young professionals and first time urban voters towards a candidate of his choice, placing him in a position of leverage to secure his future if he bets correctly on the next regime.
Political considerations out of the way, Gotabaya Rajapaksa and his legal team are free to focus on the challenges posed by the civil suit filed by Ahimsa Wickrematunge in California. Rajapaksa has until April 29, 2019 to respond to the summons served on him at Trader Joe’s. His team is yet to decide between the three shortlisted options for dealing with the litigation.
The first option would be to ignore the summons, continue denying having received it, and allow the case to play out in absentia.
The second,least popular option, under consideration is to respond to the case but to file a motion to dismiss the case on the basis that summons have not been properly served on Rajapaksa.
The third option is to bite the bullet and accept that summons were served, and file a motion to dismiss the case based on the lack of merit in the complaint.
Another legal avenue under consideration is to file action in the superior courts in Sri Lanka, to seek an interim order preventing the state, especially the CID, from providing either documentary or testimonial evidence to the California court, on the basis of a violation of sovereignty. Rajapaksa’s legal team is awaiting the return of a senior lawyer to the island to finish evaluating that strategy.
Should the case go forward, Ahimsa Wickrematunge and CJA are hopeful that it will elicit not just a judgment against Rajapaksa, but also evidence admissible in future criminal proceedings in Sri Lanka, against all suspects involved in the murder of editor and the subsequent cover-up.
“There has been an investigation happening in Sri Lanka which we hope this case will support,” CJA’s Legal Director Carmen Cheung said in a recent radio interview. Cheung praised Ahimsa Wickrematunge, 26, whose role in supporting the CID investigations and seeking justice for her father has become pivotal in recent years, as “an incredible young woman.”
Several witnesses who have been wary of returning to Sri Lanka or even speaking to the CID out of fear of members of the former regime are expected to be willing to give evidence in the American proceedings, safely beyond the reach of the white vans of a future regime.
Excerpts from Ahimsa Wickrematunge’s Complaint for extra-judicial killing
In 2006, Lasantha’s reporting brought him on a collision course with the Defendant. On December 24, 2006, the front-page headline of The Sunday Leaderread “President to get Rs. 400 million luxury bunker.” Under this headline, thenewspaper detailed an approximately US $4 million government construction projectto create a bunker for the Sri Lankan elite. Lasantha’s accompanying editorial criticized the creation of a Rajapaksa “dynasty”. Shortly after publication, Defendant ordered police officers in the CID to arrest Lasantha against their objections,overriding the legal advice of the Solicitor General of Sri Lanka. The Secretary to thePresident revoked the order minutes before it was to be executed.
Between July and September 2007, The Sunday Leader published a series of articles alleging that Defendant was involved in embezzling millions of dollars in a 2006 contract to purchase MiG fighter jets from Ukraine. The reporting exposed financial and procedural irregularities in the 2006 procurement of aviationequipment and services by the Sri Lanka Air Force from the Government of Ukraine,identifying Defendant as overseeing the transaction and alleging potential corruption in the procurement process led by Defendant. The reporting also indicated that the transactions went through a U.S. bank, raising the allegation that the proceeds of the crime were being laundered through the U.S. financial system.
Following the publication of these articles, Defendant stated in an interview that the media had freedom in Sri Lanka because “you can tell lies andcriticize the President, the Defence Secretary and Minister, and after writing thesethings, and you can get into your car and drive around by yourself” while gesturing as if holding a steering wheel. It was well known that Lasantha was the only prominent government critic who drove his own vehicle without chauffeurs or security personnel. In October 2007, Defendant threatened to bring a defamation case against The Sunday Leader and the Wickrematunge brothers for their reporting on the“MiG Deal.”
On November 21, 2007, black-clad commandos bearing automatic weapons stormed the premises of the printing press of The Sunday Leader, held staff at gunpoint, and set the printing press machinery on fire. This arson attack was never investigated by police, who at that time were under the direct control of Defendant.
On or before September 2008, a few months before Lasantha’s assassination, the State Intelligence Service, which was overseen by Defendant,began surveilling Lasantha’s mobile phone for reasons of “national security.”
In November 2008, Defendant filed a defamation action against Lasantha and The Sunday Leader for its reporting on the “MiG Deal,” demanding 1 billion rupees (approximately US $10 million) in damages. Lasantha was scheduled to testify in this lawsuit shortly after he was killed.
In the immediate aftermath of Lasantha’s murder, Sri Lankan law enforcement agencies – under the control of Defendant – either failed to conduct acredible investigation into the killing, or actively interfered with any attempts toconduct a credible investigation.
First, a falsified autopsy report was issued by the Judicial Medical Officer indicating that Lasantha’s death was caused by a firearm, even though this was inconsistent with the evidence at the crime scene and the report of the surgeon who conducted the emergency operation.
Second, Lasantha’s notebook, in which he had scrawled two license plate numbers on the day of the attack, was collected by police officers at the scene of the crime. This notebook was later discovered to havebeen tampered with, and the pages with the license plate numbers torn out and replaced with doctored entries.
Shortly after Lasantha’s murder, Defendant sat for a television interview with the British Broadcasting Corporation (BBC), in which he was questioned aboutthe assassination.
At the time, Defendant was in charge of civilian law enforcementin Sri Lanka, including the police force tasked with investigating homicides. During this interview, Defendant stated that the killing of Lasantha was “just anothermurder,” insisting that he was “not concerned about that.” He asked the interviewer “why are you so worried about one man.”
No further inquiries took place in Sri Lanka into Lasantha’s murder until Plaintiff’s attorneys and other family members successfully petitioned the Mount Lavinia Magistrates Court to order that investigations into the murder be conducted by the CID of the Sri Lanka Police, in December 2009.
However, when CID investigators sought to question a member of the Tripoli Platoon, the CID was ordered to halt its investigation and hand the case overto the Terrorist Investigation Division (“TID”), a detachment of the Sri Lanka Police.
At the same time, Defendant issued a letter to the Sri Lankan Ministry of Foreign Affairs, instructing that the commanding officer of the Tripoli Platoon be assigned to a non-vacant diplomatic position at the Sri Lankan Embassy in Bangkok, Thailand,within 13 days. The letter instructed that the officer who was then present in Thailand be recalled.
After the TID took over the investigation, it halted all inquiries into the involvement of the Tripoli Platoon. In February 2010, the TID arrested 17 other Military Intelligence officers attached to a different platoon, and detained them on suspicion of the murder of Lasantha and other abductions and assaults onjournalists. However, all 17 individuals were released from custody before being presented to witnesses for lineup identification. No charges were ever filed against any of the 17 individuals.
In February 2010, the TID took into custody the member of the Tripoli Platoon who had originally been sought for questioning by the CID. While in custody, however, this suspect was granted a promotion by the military and continued to receive his pay in violation of regulations governing military personnel in policecustody. He was eventually released without being charged and without thoroughquestioning.
Defendant, in his capacity as Secretary of Defense, exercised command responsibility over, conspired with, aided and abetted, and/or incited individuals inthe Tripoli Platoon, or groups acting in coordination with this unit, to perpetrate theextrajudicial killing of Decedent, whom Defendant viewed as a threat because of his reporting.
Defendant and individuals under his command then worked to prevent an effective investigation into Decedent’s killing.Defendant exercised command responsibility over the Tripoli Platoon,which carried out the murder of Decedent as well as attacks against journalists perceived as critical of the Rajapaksa government.
The Tripoli Platoon operated under the command of the Chief of National Intelligence, who reported directly to the Defendant, the Secretary of Defense during the relevant time period. DefendantGotabaya engaged in weekly meetings and closely coordinated with the Directorate of Military Intelligence.
Due to this relationship, Defendant knew or should have known about the attack on Lasantha. The investigationduring Defendant’s tenure as Secretary of Defense was marked by interference and cover-ups by the investigating authorities, including actions taken by Defendant to actively interfere with any attempt to conduct a credible investigation.Defendant also conspired with individuals in the military and police to carry out the attack on Lasantha and prevent an effective investigation. Defendant conspired with one or more members of the Directorate of Military Intelligence pursuant to a common plan, design, or scheme to carry out attacks against journalists who were critical of the Rajapaksa Government, including the attack against Lasantha.Additionally, Defendant conspired with one or more members of the Sri Lanka Police to ensure that the military officers would not be implicated in Lasantha’s murder.
In addition to the attack itself, overt acts taken in furtherance of this conspiracy includetampering with Lasantha’s notebook, the order to transfer the investigation from the CID to the TID after a member of the Tripoli Platoon was implicated in the murder, and the order by Defendant to transfer one of the Tripoli Platoon suspects in Lasantha’s case to a post at the Sri Lankan Embassy in Bangkok, Thailand,preventing a thorough investigation of the crimes.
In addition to being personally liable for his own actions, Defendant is jointly and severally liable for the actions ofhis co-conspirators, all of which were actions undertaken in furtherance of a commonplan, design, or scheme to threaten and eliminate journalists and silence critics of the government.
Defendant encouraged the commission of the attack through veiled threats and public statements suggesting that perpetrators of crimes against journalists would not be held accountable. Defendant made numerous public comments denouncing journalists who criticized the Rajapaksa government as traitors. Defendant’s brother specifically labeled Lasantha as a “terrorist journalist.”
A statement issued by the Ministry of Defense on May 31, 2008 called on “all members of the armed forces to unite and guard against these treacherous media campaign [sic] against them,” naming TheSunday Leader as one of the “treacherous media.” Another statement released by the Ministry of Defense on June 4, 2008 referred to journalists as “enemies of the state” who “are doing a job of the enemy.”
The Defendant personally authorized the release of these statements, and, given the pattern of attacks against journalists, was aware of the substantial likelihood of harm in transmitting these inflammatory messages.