Taking a dramatic twist, the Ninth Circuit Court of Appeal of the United States on Friday February 28 allowed the Appeal Petition filed by Ahimsa Wickrematunge, daughter of the slain Sunday Leader Editor Lasantha Wickrematunge, to vacate the Lower Court’s ruling which was delivered on October 22, 2019.
In April 2019, attorneys from the San Francisco-based Centre for Justice and Accountability (CJA), representing Wickrematunge filed a lawsuit in the United States District Court for the Central District of California, seeking to hold Rajapaksa – now the president of Sri Lanka –for his alleged involvement in the assassination of her father, and in the widespread and systematic targeting of journalists perceived to critical of the government. But however, the court delivered the verdict dismissing the case on Monday, October 22, 2019, claiming that Rajapaksa is entitled to common law foreign official immunity for the acts that are alleged—acts of torture, extrajudicial killing, and crimes against humanity whilst he was the Defence Secretary in Sri Lanka.
The reason for the Court to dismiss the case was that it lacks the jurisdiction to consider Ahimsa’s claim as ‘Rajapaksa is entitled to common law foreign official immunity for the acts that are alleged—acts of torture, extrajudicial killing, and crimes against humanity. The Court found that these acts were committed in his official capacity as Sri Lanka’s Secretary of Defense and the Court has not made any finding on the actual merits of the allegations against Rajapaksa, which includes his alleged responsibility for the extrajudicial killing of the plaintiff’s father and for the Sri Lankan government’s campaign of violence against journalists during the civil war’.
Later, Ahimsa Wickrematunge, challenged the verdict delivered by the United States District Court for the Central District of California in the lawsuit filed against the former Defence Secretary Gotabhaya Rajapaksa on the extrajudicial killing of her father Lasantha Wickrematunge
The appeal was filed on Wickrematunge’s behalf by attorneys from the San Francisco-based Centre for Justice and Accountability (CJA) and Debevoise & Plimpton LLP, an organisation dedicated to deterring torture, war crimes, crimes against humanity, and other severe human rights abuses around the world through innovative litigation, policy and transitional justice strategies that strengthen the global net of accountability.
Following the dismissal of her case on October 22, 2019, Wickrematunge told the Daily Mirror that her counsels will appeal against the judgement and is confident that she will succeed in the appeal, and added that it is disappointing that those who were involved in her father’s murder are now roaming free but she and her counsels will ensure that the perpetrators do not escape justice.
“An end to impunity is precisely what the Torture Victim Protection Act was designed to provide in cases like this. There is no immunity when government officials act outside their authority to torture or murder anyone. Rajapaksa, must be held accountable in U.S. courts,” Wickrematunge said.
However, last week, the appeal filed by the attorneys representing Wickrematunge was granted to dismiss the case without prejudice, as Rajapaksa’s accession to the presidency of Sri Lanka last November gave him immunity from suits in US courts for so long as he remains President.
The Ninth Circuit’s decision clears the way for future litigation against Rajapaksa once he no longer enjoys immunity as a Head of State.
Speaking to the Daily Mirror, Ahimsa Wickrematunge said that the ruling given by the Ninth Circuit Court of Appeal is a victory for all those who are fighting for justice, and that Gotabhaya Rajapaksa’s tenure as the President of Sri Lanka can only delay the accountability for her father’s murder but cannot be prevented any course of legal action as he will not enjoy Presidential immunity forever.
Releasing a press statement Carmen Cheung, Director Legal, Center for Justice and Accountability states that Lasantha’s killing was neither authorized nor ratified by the Sri Lankan government, and the violent targeting of journalists should never be considered legitimate acts of state and that they are pleased that Ahimsa got the opportunity to bring her case again.
“The Ninth Circuit correctly vacated the lower court’s decision when Ahimsa’s appeal could no longer be heard, because of Rajapaksa’s newly acquired immunity. We are pleased that this decision gives Ahimsa another chance at justice for her father.” says Natalie Reid of Debevoise & Plimpton.
Ahimsa Wickrematunge brought her case under the Torture Victims Protection Act (TVPA) of the United States which reads that any 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 or to any person who may be a claimant in an action for wrongful death.
The Act defines extra-judicial killing 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 people’.
CJA has successfully brought cases against a former Minister of Defence of Somalia’s Siad Barre regime, the military officer responsible for the assassination of Chilean activist and singer Victor Jara, and Syria’s Assad regime for its targeted killing of war correspondent Marie Colvin, according to a media release issued by the rights group. CJA has also been at the forefront of litigation and advocacy against allegations of torture by US military personnel and government officials at the Guantanamo Bay detention facility in Cuba.
In an earlier press statement released by the CJA states that Violence against journalists in Sri Lanka was a tool used by the Rajapaksa administration to suppress a free and independent press, and the impunity for these abuses persists to this day and seek the truth in a US court with the hope of seeing such cases move forward in Sri Lanka.
Ahimsa in her application to court has stated the reason for her to file the lawsuit against Rajapaksa in the US Court was because all her efforts to seek justice in Sri Lanka failed as the then Defence Secretary and his allies obstructed the cases by tampering with witnesses and engaging in a pattern of coercion and intimidation. Security forces under Rajapaksa’s command and control engaged in a widespread and systematic campaign against journalists, marked by a pattern and practice of violations including but not limited to extrajudicial killing; arbitrary detention; torture; and cruel, inhuman and degrading treatment in an effort to stamp out criticism of the Rajapaksa government.
In her application she further states that Rajapaksa as the then Defence Secretary ordered her father’s arrest and filed a defamation suit against him. Intelligence services under Rajapaksa’s command began surveilling Lasantha Wickrematunge’s mobile telephone. Immediately before he was due to testify against the defendant, regarding an alleged corruption scandal, Lasantha Wickrematunge was brutally murdered in broad daylight by members of the Tripoli Platoon, a unit of Sri Lanka’s Directorate of Military Intelligence operating under Defendant’s command.
“Ahimsa Wickrematunge has been seeking accountability for her father’s murder for over ten years. Despite the hard work of the investigating authorities in Sri Lanka, there have still been no charges filed against those responsible for Lasantha’s death,” the statement states.
For these reasons, Ahimsa and the Centre for Justice and Accountability (CJA) decided to bring this civil suit in the United States. Even though the suit will not result in any jail time, it is an opportunity for Ahimsa to have her father’s case heard in a court of law, and to have an impartial judge rule on the question of Gotabaya Rajapaksa’s liability for his murder.
(Daily Mirror)