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CHECKMATE: Inside Ahimsa’s Legal Gambit

against Gota

This article was first published in the Sunday Observer on April 21, 2019 that
fateful Easter Sunday when suicide bombers unleashed terror attacks on churches
and luxury hotels, killing 258 people in Colombo, Negombo and Batticaloa. The
attacks gripped the attention of the nation, and the historic case filed by Ahimsa
Wickrematunge, the 27 year old daughter of murdered Editor of The Sunday
Leader in California, accusing Sri Lanka’s former Defence Secretary of extra-
judicially killing her father, drifted into the shadows in the wake of the Easter
tragedy. This article was an exhaustive investigative report about the first moments
after summons were served on Gotabaya Rajapaksa, how he was tracked down by
private investigators, how the Rajapaksa family reacted to the news and the
questions of legal options and candidacy in the wake of the litigation.

The Sunday Observer is picking up that story again, with US based legal counsel
for Gotabaya Rajapaksa expected to file responses to Ahimsa Wickrematunge’s
complaint by June 27. This Sunday, we republish an updated version of this article
in the public interest, and look forward to publishing the former Defence
Secretary’s legal response when documents are made public, and details about how
the case will proceed over the next few weeks.

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 on April 7, 2019.

BY MANOJ COLOMBAGE-23 June,


2019

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.

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
representative.” 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 cover-up.

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, GotabayaRajapaksa 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 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 an 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 opportunity 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 (April 8) 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 GotabayaRajapaksa 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 (April 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,
issued on behalf of another plaintiff who had filed legal action against
Rajapaksa.

By Tuesday (April 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
embarrassment 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 that fateful 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 (April 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 green-light 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 – dating back 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 was
initially under advisement to refrain from submitting his papers to renounce his
American citizenship without a public assurance from Mahinda Rajapaksa that
he would be selected as his party’s candidate.

However, an application to renounce Gotabaya Rajapaksa’s US citizenship has


since been lodged with the US Embassy in Colombo.

Gotabaya Rajapaksa was initially due to file his response to Ahimsa


Wickrematunge’s complaint in the US by April 29, 2019. But on the day,
attorney John C. Ulin, a senior partner at the Arnold & Porter Kaye Scholer law
firm headquartered in Washington DC hired by Rajapaksa as his legal counsel
in the US, filed an “unopposed application” to extend time to respond to the
initial complaint filed by Lasantha Wickrematunge’s daughter.

Rajapaksa’s lawyers proposed a new response date of June 27, 2019, as a


deadline to respond to the complaint. Wickrematunge’s legal team agreed with
Rajapaksa’s lawyers to give him a total of 60 days additional time from the
original response date to file his reply. Rajapaksa’s US attorneys said the
application has been made in order to give Rajapaksa sufficient time to prepare
expert testimony and collect additional evidence necessary to support a motion to
dismiss, his lawyers submitted to court in documents seen by Sunday Observer.
Since Rajapaksa resides in Sri Lanka, a country in a time zone over 12 hours
ahead of California, making coordination and communication between
Defendant and his US counsel often slow and time consuming, his lawyers
submitted to court. Based on the filings to court, Rajapaksa’s lawyers look set to
file a motion to dismiss the case based on the lack of merit in Ahimsa
Wickrematunge’s complaint.

Since the Easter terror attacks, the former Defence Secretary has doubled down
on his decision to run for presidential office, even though his party remains
deeply divided on the question of candidacy. Rajapaksa, who celebrated his 70th
birthday last Thursday (20) is currently in Singapore, where he is reportedly
recovering from cardiac surgery. Last Wednesday, his lawyers managed to win
him a six week reprieve from June 2, when he was originally due to return from
medical leave granted by court, postponing the start of the D.A. Rajapaksa
museum trial at the Permanent High Court in Colombo on medical grounds.
Gotabaya Rajapaksa is the first Accused in that case, indicted for allegedly
misappropriating millions in state funds to build a memorial for his parents in
Medamulana.

With the Court of Appeal having dismissed Rajapaksa’s writ petition and
revision applications challenging orders made by the Permanent High Court,
trial was set to begin on Wednesday, June 19.
Since contesting to be Sri Lanka’s next president while being on trial for
corruption in Colombo and for murder in California may prove inconvenient,
Rajapaksa’s lawyers in both jurisdictions will be hard-pressed to find solutions
to his legal problems over the next few months.

Should the case filed in California 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 radio
interview in April this year. 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
Leader read “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 and criticize 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, however, he was killed before that.

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.

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 on
journalists. 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.

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.

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. Defendant Gotabaya engaged in weekly
meetings and closely coordinated with the Directorate of Military Intelligence.

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 wereactions
undertaken in furtherance of a commonplan, design, or scheme to
threaten and eliminate journalists and silen

ce critics of the government.


Posted by Thavam