Can Gotabaya Rajapaksa Clear Legal Hurdles in the US and Contest the Presidential Elections in Sri Lanka?


Don Manu

When the Colombo High Court granted Gotabaya special permission to travel to the United States between March 26 and April 12, no doubt he would have been over the moon to be given the chance to spend a spring holiday in his adopted country. But as things stand today, this seeming blessing has turned out to be a curse in disguise for him.

Only last month had the Rajapaksa Family anointed him as their choice to contest the Presidency on the Pohottuwa party ticket. Even though the party itself has still not officially announced his candidature on its ticket, it is widely expected that he will win the nomination if his brother Mahinda gives his wholehearted approval in public the same nod he perhaps grudgingly gave to the family members when they met last month at Mahinda’s official Colombo 7 residence; and held a family-members-only dinner to decide over a meal of hoppers, perhaps, who should be the SLPP candidate at the presidential poll to be held at the end of the year.

With that important primary vote – not made by party members as its is done in the States but by the Rajapaksa siblings – won and under his belt and with the court, before which he faces charges of misusing public money, granting his request for two weeks to travel abroad, no doubt, he felt himself flying high on the road to Lanka’s presidency.

But last Sunday evening at the car park of Trader Joe’s Super Grocery Store in Pasadena, California, some form of Nemesis seems to have caught up with him and has possibly fouled his chances of being eligible to run in the presidential races. The fates that work in mysterious ways appear to have hobbled the Rajapaksa favourite steed in a United States Pasadena paddock.

Reportedly he was on his way to attend a meeting organised by the former Los Angeles consul under Rajapaksa regime titled ‘Meet the future President’ when a quirk of fate prompted him to make a pit stop at Trader Joe’s to shop for some fruits.

There, a woman approached him and handed him some documents. She was from Premier Group International, a licensed process server who had teamed up with Ideal Investigators Inc to track and serve summons on Gotabaya Rajapaksa for two Federal lawsuits filed in a California court. As he accepted the papers, perhaps not knowing what it was all about, the woman’s colleague for good measure captured the moment on camera to provide photographic evidence confirming that the summons had indeed been duly served.

One case concerned the killing of former Sunday Leader editor Lasantha Wicremetunge in January 2009. It was filed by the Centre for Justice and Accountability on behalf of Ahimsa Wickrematunge, the slain editor’s daughter and the legal representative of his estate. The Centre for Justice and Accountability is a non-profit human rights organisation founded in 1998, based in San Francisco in California and represents torture victims and other grave rights abuses against human rights violators before US courts, pioneering the use of civil litigation to give redress to the survivors all over the world. The suit filed alleges ‘Gotabaya “instigated and authorised” the extrajudicial killing of Lasantha Wickrematunge, and claims damages as compensation from him.

The other case has been filed by the International Truth and Justice Committee on behalf of a Canadian citizen of Tamil origin named Roy Samathanam. In a press release issued on Tuesday April 9, the South African based International Truth and Justice Committee states:

“The International Truth and Justice Project (ITJP), in partnership with the international law firm Hausfeld and human rights lawyer Scott Gilmore, have filed a civil damages case in California against former Sri Lankan defence secretary, Gotabaya Rajapaksa, on behalf of a Tamil torture survivor Roy Samathanam. Roy Samathanam made the complaint in the U.S. District Court for the Central District of California against Mr. Rajapaksa, who is a dual US-Sri Lankan citizen. The case was brought under the Torture Victim Protection Act, which gives torture victims legal redress in US courts. Notice was formally served on Mr. Rajapaksa on Sunday night.

The statement also claims: “Roy Samathanam, a Canadian national, was arrested on false charges in the Sri Lankan capital, Colombo in September 2007 by Sri Lankan police who reported directly to Defence Secretary Gotabaya Rajapaksa at the time. Visiting Sri Lanka to marry his wife, Mr. Samathanam was detained for three years and repeatedly denied access to a lawyer or a judge.”

When news reached Colombo the following morn with the 12-hour time difference, nephew Namal refused to believe it. His eyes and ears couldn’t accept that his uncle had been so foolish enough, or so self sure of himself enough, to have walked into the lion’s lair to be made a meal of, especially at a time when he had announced his intention to contest the presidency after finally winning the family vote.

He tweeted: “As far as we’re aware @GotabayaR never received summons of any form. Not sure if I’m appalled or amused by the lengths some people will go to publicise unsubstantiated claims based on strategic propaganda.”

But not so the chairman of the Pohottuwa Party, Professor G. L. Peiris. At a press briefing held at the party’s Nelum Mawatha Office in Battaramulla, he confirmed that a case had been filed in the State of California by Ahimsa Wickrematunga, daughter of the slain Sunday Leader editor Lasantha Wickrematunga but pointed out that action had been filed a decade after the assassination – even though in cases concerning criminal acts there is no time limitation period.

He said that legal action against wartime Defence Secretary Gotabaya Rajapaksa, in the US, should be viewed against the backdrop of him being widely considered as SLPP candidate at the presidential polls later this year – again confirming the party’s position that he has still not been officially named as the candidate but only ‘widely considered’ to be the one.

He spoke of how interested parties could move court against Gotabaya Rajapaksa to hinder his efforts to renounce US citizenship. And said in terms of the 19th Amendment to the Constitution enacted in April 2015, dual citizens cannot contest presidential or parliamentary polls.

That indeed is the crux of the matter.

On January 20th this year, the Sunday Punch commented on the several road blocks that await Gota’s path to the presidency and said:

“Most of all, the biggest obstacle he faces as he runs his steeplechase of hurdles before he can get to the starter’s gate is that erected by the United States of America. It revolves around the question of his dual citizenship and of his ability to jump over the wall that America has built around her borders not so much to prevent aliens from jumping in but to prevent her own citizens who have enjoyed the broad acres of her land from jumping over it at any time of their choosing when it suits them to do so – without first discharging the legal obligations owed to the States.

“Under the 19th Amendment to the Constitution enacted by over five sixth of Parliament in April 2015, a person, however so much he may ooze with patriotic fervor for his motherland Lanka, if he had opted to swear allegiance to a foreign nation and sworn fidelity to it and to defend its soil and abide by its laws is barred, quite rightly too, from contesting for Parliament and the presidential election. No man can serve two masters, no citizen can profess allegiance to the motherland whilst having his foot on a foreign land and swearing allegiance to it voluntarily. In matrimonial parlance, it’s adultery, though no criminal offence, of course, either in staid Lanka or in swinging US of A but still a civil disability in Lanka to participate in her political affairs and woo the Lankan voter and cuddle him in a bi-nationalistic embrace.”

Then, on March 24, just a few days before Gota flew to the States, the SUNDAY PUNCH highlighted how a single court case filed by the Tamil Diaspora in a US court alleging human rights violation as a US citizen could buckle his chances of being granted renunciation by the US of his dual nationality.

It said: “On March 6th when he formally handed over his application to the US Embassy in Colombo, it was only the start of a long process to be done by the US Government as to whether he could be allowed to renounce his citizenship or whether there were certain debts, certain obligation which had to be first met before granting him release.

“When the local US embassy entered his duly filled application form into the system, the globalised US State Department system automatically computer generates the process. The application gets wetted at every relevant US government agency from the Department of Homeland Security, to the Pentagon, to the Department of Justice, the FBI and The Treasury.

“The task of these agencies will be to ascertain whether the applicant seeking renunciation of citizenship has been involved in money laundering, in any criminal activity, in drugs, whether he is or she is in divorce proceedings, in tax evasion, in short, in every gamut of activity that, in their discretion, may hold their attention.

“Depending on the case in hand, the process can take three months to three years. For US law sets no period and leaves the investigative agencies to take their own cool time to furnish their report.

“Even if he is given the all clear on all these matters, one problem must nag Gotabaya. What if the Tamil Diaspora – if they have not done it to date – or for that matter, any other US citizen were to file a suit in court alleging human rights violation?

“Weeks before it is formally granted, the US Treasury is legally bound to publish a notice in the newspapers announcing such an intention and inviting the public to place their objections, if any. With such kind of notice, it is hard to see the American Tamil Diaspora, not leaping into action to petition the US courts to prevent the US Secretary of State granting Gotabaya the right to renounce US citizenship to enable him to contest the Lanka presidential polls.”

Last Sunday the possible happened. Not one case alleging involvement with murder but another alleging involvement with torture filed in the United States courts whilst he faces charges of corruption in cases before Lankan courts. The odds somehow seem to be stacked against him.

And these initial cases may have served only to open the flood gates for others to follow suit and file similar allegations in the US courts.

US court procedure is strict and the accent is on speedy conclusion of trials. For starters, in United States federal courts, any person who is at least 18 years old and not a party may serve a summons and complaint in a civil case. The defendant must submit an answer within 21 days after being served with the summons and complaint, or request a waiver, according to FRCP Rule 12. After the civil complaint has been served to the defendants, the plaintiff must, as soon as practicable, initiate a conference between the parties to plan for the rest of the discovery process and then the parties should submit a proposed discovery plan to the judge within 14 days after the conference.

Thus it seems that it is for the plaintiff to decide what is ‘soon as practical’ and though no inordinate delay on their part would be entertained, they can stretch the reasonable time period to its very limit. But for Gota time is certainly of the essence. With the court cases barring him from being granted his request to renounce citizenship and with the presidential election less than seven months away and the date for handing over nominations to the Elections Commissioner even less, time for him is fast running out in the presidential hour glass.

The other problem is that both the cases filed against him are claims for damages. And a demand for jury trial. Should he defend the case and lose, or choose not to contest it, he could be ordered to pay compensation that might be extracted from any assets he owns in the US. As for the trial by jury demand, it will provide the opportunity for the complainants to delay the trial if they so wish, by exercising their right to object to certain members of the jury and thus gain more time till a new jury is empanelled.

He also faces a formidable team of lawyers appearing against him. As the Guardian newspapers in London reported this Tuesday, it is led by Scot Gilmour, one of the world’s top human rights lawyers based in Washington D.C., who is representing the torture claimant Roy Samathanam. Gilmore told the Guardian that they will be seeking to argue that Gotabaya had “overall command and control” of the forces that tortured Samathanam, and is, therefore, legally liable for their conduct. “Gotabaya made it very clear in his public statements that for many years he centralised control of the security forces,” Gilmore said.

“These incidents were widely reported, documented by the UN, and the Sri Lankan government was repeatedly confronted with these allegations. So as defence secretary he clearly knew that these abuses were taking place, or allegedly taking place, but he never took the legal steps to investigate or punish the perpetrators,” he added.

So can Gota jump the US hurdle? Is the die cast for him? Has he bitten more than he could chew? And will the best laid plans of mice and men be disposed of by time and fate?

Courtesy:Sunday Times