Human Rights
President Rajapakse likely to be served summons via media in US case, Gota may be added as a defendent
• Motion will address the issues of personal jurisdiction and head of state immunity
• Gotabaya Rajapakse likely to be added as a defendant
• Motion will seek authorization to serve summons by publication or electronic means
• Lawyer says will try all methods including to deliver summons through US Embassy in Colombo
• Speculation rife President Rajapakse has already retained a US attorney
* Strongest argument in favour of the case is the nature of the Rajapakse regime says Fein
The plaintiffs in the Torture Victims Protection case against Sri Lanka’s President Rajapakse are preparing to file a motion with the United States District Court seeking authorization to serve summons by publication, or through electronic means, their US attorney told Lanka Independent today.
Publication in newspaper
Bruce Fein Attorney for Plaintiffs Dr. Kasippillai Manoharan, Kalaiselvilavan and Jeyakumar Aiyathurai said the motion will seek permission to serve summons through publication in a newspaper or through electronic means as all conventional methods had been denied. He told this website the motion would also address issues of personal jurisdiction and Head of State immunity and said he had no knowledge of any attorney for Mr. Rajapakse filing notice of appearance on his behalf.
The Plaintiffs in this case filed a consolidated case on 28 January 2011 under the Torture Victims Protection Act(TVPA) in the US District Court in the District of Columbia seeking damages in excess of US$ 30 million against President Rajapakse for actions allegedly occurring under his command responsibility as Head of State and Commander in Chief of the armed forces.
Service refused by Embassy
They sought to serve summons on President Rajapakse by delivering copies to the Sri Lankan Embassy in Washington DC
and to Temple Trees in Colombo. Both were returned. The Plaintiffs then resorted to service under the Hague Convention which was again refused by Sri Lanka.
Under Article 2 of the Convention dealing with Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, each of the signatory states including Sri Lanka designates a Central Authority which is under the treaty authorized to accept summons and complaint and then make service. For Sri Lanka this was the Ministry of Justice.
Suhada writes letter
On June 6, the Ministry of Justice received a request from Process Forwarding International in Seattle Washington to serve process in the form of a summons and complaint in the matter of Manoharan et al v. Percy Mahendra Rajapakse, pending in the United States District Court.
On 18 June 2011 Suhada Gamalath, Secretary Ministry of Justice sent a letter to Process Forwarding International, Seattle Washington refused the request for process on the basis that compliance would infringe sovereignty.
Intruding on sovereignty
Meanwhile According to the letter, the Attorney General’s Department of Sri Lanka had also brought to the attention of the US
President Mahinda Rajapakse - ducking service of summons
Department of State that the claims against President Rajapake intruded on the sovereignty of Sri lanka as it sought to impose liability under the laws of another country for acts allegedly taken within the sovereign territory of Sri Lanka under its own legal authority and that the claims also called into question expressions of comity and mutual respect between the two governments thereby burdening the relationship.
The complaint
The Complaint alleges multiple violations of the Torture Victims Protection Act (TVPA) based on President Rajapakse’s command responsibility for the extrajudicial killings of Ragihar Manoharan, the son of Plaintiff Dr. Kasippillai Manoharan, of Premas Anandarajah, a humanitarian aid worker for Action Against Hunger, and first husband of Plaintiff Kalaiselvi Lavan, and four members of the Thevarajah family, all relatives of Plaintiff Jeyakumar Aiyathurai.
Ragihar was one of the five students in the Trincomalee massacre of January 2006. Anandarajah was one of the seventeen staff of the Action Against Hunger (ACF), again extra-judicially executed during the war in the east in August 2006. Jeyakumar’s relatives were killed by an exploding artillery shell that landed inside the safety-bunker the family was hiding in on May 14, 2009 situated in an allegedly clearly demarcated No Fire Zone.
Demarche
Even as Mr. Mahinda Rajapakse faces some legal discomfit within the US due to the TVPA case he is also feeling US pressure at home.
Patricia Butenis, US Ambassador to Sri Lanka and the Maldives
Local media reported last week the US had also delivered a Demarche to Sri Lanka that it wants the final Report of the Lessons Learnt and Reconciliation Commission (LLRC) to be presented to the Human Rights Council of the United Nations at its March sessions next year.
Earlier on June 7, Lanka Independent asked the Spokesperson for the UN Secretary General in New York whether the UNSG would officially send the UN panel of Experts Report for consideration to the HRC and was told the UNSG is considering next steps in the process of any onward transmission to other bodies.
Both reports on the table
Human Rights bodies say they would like to see both reports tabled for consideration in the March sessions of the HRC. See further discussion on the subject here.
INTERVIEW WITH BRUCE FEIN
Lanka Independent spoke to Bruce Fein former US Deputy Attorney General and attorney in the current case filed in Washington DC. In a wide ranging interview Fein denied the plaintiffs were part of a larger group or organization insisting
they were individuals hailing from two different states in the US and from England. However Tamilnet had earlier reported that the action was initiated by the US-based activist group Tamils Against Genocide (TAG). Fein also stated the TVPA allowed for action against any individual pointing out that Sri Lanka made Libya look like a tea party. Below are excerpts:
Lanka Independent: You have filed on behalf of your clients three cases under the TVPA. Are they individual clients or are they in any sense a part of a group or are you representing an organisation?
Bruce Fein: No they are individuals. One is the father of a London doctor, Dr. Manoharan his son was killed in what is called the Trinco five incident. Then there is a wife of a husband who was part of the Action Against Hunger, I think there were 17 of them who were killed in an onslaught, she’s here in the US – just an individual. And then there is the family that had four victims in the so called No Fire Zone killed by artillery shelling in the last week of the civil war so they are not part of a group or organization they are individuals. They obviously have common claims because they are extra judicial killings and according to our complaint we think they were authorised and directed by Mr. Mahinda Rajapakse.
LI: Since you say they are individual clients did you not think it wise to file separate complaints?
BF: It’s just a matter if you will of saving resources. You are right we could have filed separate casess. But the defendants have overlapping common claims and filing under one case caption is easier for witnesses etc. So even if we filed separately we would have moved for consolidating the claims anyway to be more efficient because the themes and evidence are so overlapping.
There’s obviously going to be differences in the measurement of damages because each individual is unique and the extra
judicial killings weren’t done exactly the same but when we are talking about command responsibility we are not having the actual foot soldier who did the final pulling of the trigger as the defendant this we thought was just a more efficient way to proceed.
LI: Service of Summons. I know the process was difficult you tried to serve to the Sri Lankan Embassy in DC it was returned you tried to serve to Temple Trees it was returned can you detail for me what happened there.
BF: Well our Rules of Civil Procedure provide various ways in which you can serve the summons and complaint on a defendant. Here it is much more difficult as the defendant is a non resident. So then there are authorized ways under our federal rules of civil procedure to try to ensure that the defendant is given adequate notice of the complaint and an opportunity to respond but these were not accepted by the addressees. Under our rules we just put the addresses of the defendants and notify court we have sent them.
LI: To the embassy
BF: Yes
LI: And it was returned
BF: Yes and the same with Temple Trees just like our summons and complaint through the Hague Convention was returned as well.
LI: What next?
First page of two page letter sent by the Ministry of Justice Sri Lanka dated June 18, 2011 refusing to comply with request to serve legal process to President Rajapakse
BF:Well we have been told that Sri Lanka has actually retained a US attorney we don’t know who it is. Again it’s a little bit odd because at present there is no defendant formally in the case only the plaintiff but that was what was done here. Now we are in a position to say see we’ve tried these customary ways to effectuate service they haven’t worked now authorize us to print it in a newspaper or give an order authorizing us to deliver it through our US embassy in Colombo. Anyway there are various and sundry methods that we can now propose to the court as an alternative to the circumvention by Mr. Rajapakse we encountered with the Hague convention method.
LI: Why would you say there is no designated defendant?
BF: No there is a designated defendant but right now he doesn’t have standing because we haven’t served him. It’s just us, there is no one on the other side arguing because they are arguing there is no jurisdiction over them. If he, Mr. Rajapakse appeared with his lawyers he’d be conceding jurisdiction. But of course if we make service of summons then surely the defendant will have counsel represent him.
LI: What are the chances of the US Department of Justice in consultation with the US State Department taking the matter up as a political question issue and actually sending a lawyer and having this case dismissed on grounds of Head of State immunity?
Page 2 of Ministry of Justice letter dated June 18, 2011
BF:Well we don’t know yet. Right now it is unlikely that the department would intervene unilaterally. The judge may ask for the views of the Justice Department and the Department of Justice may ask for the views of the State Department but it is not customary at this lower level to do that.
If it is the Supreme Court our highest court, they always consult on any sensitive foreign policy issue litigations and sometimes they reject the views of the State Department too, it is not always accepted. Of course if they dismiss it we can simply appeal to the US Court of Appeals and say this simply was a wrong decision here. It is fair to say I think that this area of the law is one that is fluid. It is a little bit blurry. There are strong arguments in favour and arguments against it, but overall the strongest argument in our favour is the nature of the regime itself.
Some regimes are worse than others and the law tries to bend itself to make certain that real scoundrels don’t escape justice. That doesn’t mean that it always wins but that’s what we have going for us is that there is such a ruthlessness………This is not just Tamils against the Sinhalese this is everybody revolting against this revolution that is now eating its own children.
…..General Sarath Fonseka was part of the in crowd now he is in jail. This effort to acquire all power now in one click here and this I think strengthens the case. Now people look at it and think wow, we have a monster regime maybe many people applauded it. It won the ethnic civil war but it now begins to turn on its own victors. The issues are who is going to run the economy, who gets the sales of the aircraft and skims 50% under the surface and that kind of stuff…..
You have to get outside this framework that it is just a remnant of the civil war. This is a quest for absolute power and to squelch any kind of dissent…….Gotabaya Rajapakse publicly stated that dissent in times of war is treason. Treason is punishable by death. Dissent is free speech but it’s a death sentence to exercise your right as a citizen or to engage in self-government? You have a monster regime.
LI: So what about the immunity question?
BF: Our US Supreme Court has never precisely addressed the immunity question we are talking about. The only precedent we have which is directly on point is from the District Court – the lowest level court, and that was in 1995 with regard to the Haitian Head of State Aristide. It wasn’t a very sympathetic case. But no, our US Supreme Court, the last time it had an opportunity to examine this general issue of immunity which came up under the Foreign Sovereign Immunities Act, it ducked the question, it said we don’t want to get to these right now, we don’t want to answer them….
LI: Are these your first cases regarding Sri Lanka
BF: Yes. It took a long time for people to have the courage to say I will identify myself because there is enormous worry. The ability of the government is great so it is not easy to find people with that strength and detachment where they will be willing to come out and complain.
LI: Are you considering adding defendants to the present case
BF: Yes we are considering the Defence Secretary
22 Comments to “President Rajapakse likely to be served summons via media in US case, Gota may be added as a defendent”
December 18, 2011 at 2:09 am
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October 5, 2011 at 6:16 am
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September 25, 2011 at 6:05 pm
[…] Sri Lanka’s Ministry of Justice refused to accept service under the Hague Convention for International Service of Process on the ground of national security and head of state doctrine. […]
September 24, 2011 at 10:07 pm
[…] Sri Lanka’s Ministry of Justice refused to accept service under the Hague Convention for International Service of Process on the ground of national security and head of state doctrine. […]
August 14, 2011 at 6:04 am
I wants to remind you sri lankans , never forget that America have one of the biggest bases just 1 hour south of hambantota …. Its called Diego Garcia…over 3000 staff just working to take care of the base! That is pretty big.
Sooner or later they will bully us and use there military against sri lanka…if we dont go down to there knees and do what they wants..
August 14, 2011 at 12:13 am
Let Sri Lanka rebuild and develop. Hands off Sri Lanka. LTTE, back off.
August 12, 2011 at 10:35 pm
[…] The plaintiffs in the Torture Victims Protection case against Sri Lanka’s President Rajapakse are preparing to file a motion with the United States District Court seeking authorization to serve summons by publication, or through electronic means, their US attorney told Lanka Independent today………….. read more […]
August 6, 2011 at 6:27 pm
Sriani
this is a good website and sonali is a good journalist but a lot of people are trying in sri lanka. some articles in the island are good and also in the sunday times
August 6, 2011 at 6:26 pm
Sonali we really miss you in sri lanka. Please start a newspaper like this website in sri lanka. Only you and lasantha could have helped us
August 6, 2011 at 6:02 pm
Do’t bet on it. CBK said she didn’t read the papers but she actually read every word
August 6, 2011 at 6:01 pm
I hope Rajapakse will read this website. Chances are he doesn’t read though
August 6, 2011 at 6:00 pm
Great and refreshing to read real journalism again so hard to find it in sri lanka
August 4, 2011 at 8:46 pm
This is not the US filing the case this is three aggrieved individuals who were in sri lanka
August 4, 2011 at 8:45 pm
I think the US should just leave Sri Lanka alone and dela with there own problems they cant even get a debt deal passed
August 4, 2011 at 8:44 pm
So what has that got to do with Rajapakses. They got more votes and even a two third majority in parliament
August 4, 2011 at 8:43 pm
EVen Churchill was defeated after winning the war
August 4, 2011 at 8:42 pm
THe best thing that could have happened to sri lanka was the Rajapakses. if not for them we would be having bombs going off still and those terrorists creeping around our country
August 4, 2011 at 8:41 pm
Yes True. I don’t think the US like what is happening now. THey waited during the war because it suited them to have sri lanka target the KLTTE terrorists. But they dont want the Rajapakses to become the tyrants the US once used to create . They are much more circumspect now and it is obvious they are very aware of what is happening in sri lanka and wel labreast of the Rajapakse phenomenon
August 4, 2011 at 8:38 pm
Yes Mahasen I agree. The US is now going towards doing the right thing rather than doing what is best for their short term interests. THey too know that in the long term it is better to have a democracy in sri lanka rather than a all consuming powerful family run empire like libya. the Rajapakses and their nature is what will eventually turn the world against sri lanka.
August 4, 2011 at 8:35 pm
I think in fact it is more likey the Us and even other countries will be willing to look dispassionately at the poliitical question that is involved when going through with cases under TVPA or ACTA. THere is nothing Rajapakse can do now as Fein himself says if Rajapakse comes with a lawyer he is conceding jurisdiction. So this will go as an ex parte case
August 4, 2011 at 8:33 pm
This is a pipe dream i dont think the US will ever agree to actually prosecuting the Rajapakses
August 3, 2011 at 10:20 am
Great article once again