Lawyers request US Court to approve use of social media to serve summons on Rajapakse

Sonali Samarasinghe Wickrematunge | Published on October 1, 2011 at 3:59 pm

WASHINGTON DC October 1,2011:The plaintiffs in the Torture Victims Protection case against Sri Lanka’s President Rajapakse today filed a motion with the United States District Court in Washington DC seeking authorization to serve summons by publication in a

Bruce Fein seen here in his office fine tuning the motion minutes before it is electronically filed in Court

newspaper or through electronic means as all conventional methods had been denied. The motion also addresses issues of personal jurisdiction and Head of State immunity.

As international pressure mounted for Sri Lanka to address accountability issues over allegations of war crimes, President Mahinda Rajapakse visiting New York for the UN General Assembly walked a cautious line within the geographic confines of the Big Apple and under the protective umbrella of a UN member state.

While his status as a sitting head of State may have provided him immunity as far as international law was concerned there was no protection from civil suit against him under the wide ranging Torture Victims Protection Act(TVPA) and the Alien Tort Claims Act (ACTA).

President Rajapakse has been vigorously avoiding service of summons in a range of cases filed against him under these two Acts but Lawyers in the case filed in the District Court of Washington DC on January 28 today petitioned the court to sanction alternate methods of summons which included social media such as Facebook and Twitter.

If granted the use of new media for the service of summons would be a groundbreaking decision and would be the first time a US Court had employed such progressive methods of service.

Bruce Fein senior Attorney for the Plaintiffs said his agents had attempted to serve summons on September 24 (Saturday) as President

Attorney Fein discusses legal strategy with his paralegal and intern

Rajapakse visited a Buddhist Temple in Queens Village, New York. However his agents were prohibited from serving summons with officials following them, monitoring their movements and ordering them to leave before President Rajapakse arrived on the premises. One of these agents Mark Potkewitz has filed affidavit in court in support of these facts.

Fein in attempting to serve summons at the New York Buddhist Vihara at 214-22 Spencer Avenue, Queens Village, New York, told Lanka Standard he was making the analogy of the Strauss Khan debacle in New York city where Khan was accused of raping a hotel maid and act allegedly committed when he was clearly not performing any official duty  for the IMF and in the same vein a personal visit to the temple by President Rajapakse would fall under the same category in so far as it was an act of a personal nature.

Attorney Fein also told Lanka Standard President Rajapakse was clearly evading service of summons and such evasion would not be looked upon with approval by the law. ” We attempted in a proper way to serve summons but it was not delivered. We sent summons to the President’s address in Colombo and in Washington DC but it could not be delivered. We sent summons under the Hague Convention it was returned. So now we are going back to the court to authorise service by a different method as the defendant is evading service under the customary methods and therefore we are requesting the court to authorise us to use alternative methods of service and we have enumerated eight different methods. For example he established a post office box to receive campaign contributions and that is a PO box in the USA so we should be authorised to send the summons there.

“We have also asked if we could post the summons on the President’s Face book page or twitter account. Also to publish the summons on a popular Tamil Website that we know is constantly being monitored by the government of Sri Lanka and President Rajapakse. He also has email accounts and he has a big lobbying firm in the United States who would clearly have a copy of the summons passed on to the President.Publication by a Sri Lankan newspaper of general circulation which would be reasonably calculated to reach the President would be another likely method of service,” he said.

A monk and attendee stand guard at the Queens Village Vihara in New York

Bruce Fein is the Attorney for Plaintiffs Dr. Kasippillai Manoharan, Kalaiselvilavan and Jeyakumar Aiyathurai  who 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.

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.

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.

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.

But President Rajapakse is indeed a harried man. Last month during his visit to New York for the UN General Assembly he was advised not to move out of UN’s orbit in New York City lest he be served summons. At the Queens Village Vihara on September 24th he had a close shave and only the insistence of Temple officials that the lawyers leave the premises before President Rajapakse alighted from his vehicle saved him from being effectively served.

See copy of motion filed today here

See copy of original complaint here  

 


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Human Rights

Lawyers request US Court to approve use of social media to serve summons on Rajapakse

WASHINGTON DC October 1,2011:The plaintiffs in the Torture Victims Protection case against Sri Lanka’s President Rajapakse today filed a motion with the United States District ...

By Sonali Samarasinghe Wickrematunge

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