On Friday September 30, a thirty page long complaint detailing charges against President Rajapaksa, was sent to nearly 100 media outlets in Sri Lanka and around the world by U.S. Constitutional Lawyer, Bruce Fein.
President, Mahinda Rajapaksa, in the plaint is cited for extrajudicial killings under the U.S. Torture Victim’s Protection Act.
Simultaneously, Fein officially filed a motion in the United States District Court, also on Friday (30), seeking authorisation to serve the summons by publication in any newspaper, or through electronic means, as all conventional methods have been denied.
If successful the motion will set an audacious new precedent.
This action follows Sri Lanka’s Ministry of Justice having refused, in June this year, to comply with a request to serve legal summons to President Mahinda Rajapaksa.
Mahinda Rajapaksa and The Thirty Page Summons
Suhada Gamlath, Secretary to the Ministry of Justice on June 18, wrote to Rick Hamilton in the USA asserting that it would be seriously prejudicial to Sri Lanka’s sovereignty for the Central Authority to facilitate proceedings in the Manoharan lawsuit against President Rajapaksa. This was mainly because, as Head of State of Sri Lanka, President Rajapaksa is absolutely immune from the jurisdiction of the courts of the United States. Also that the claims against President Rajapaksa for actions allegedly taken under his command responsibility as Head of State, head of Government and Commander in Chief of the Armed Forces of Sri Lanka, are in substance claims against Sri Lanka itself, for which both Sri Lanka and President Rajapaksa are entitled to sovereign immunity from suit.
“The President can no longer dodge the service of summons. I am 100 percent confident that the courts will rule that the President has been served,” said Fein.
During the President’s sojourn to the United Nations –Bruce Fein told The Sunday Leader, “We attempted to serve him when he visited a Buddhist Temple in Queens, New York.
He had bodyguards that prevented the delivery of a copy of the summons and the complaint, and judges ordinarily are not happy when they see clear efforts to evade a service of process.”
To successfully serve the summons, Fein needs the co-operation of the media. He invited the international press and in particular Sri Lankan media outlets to publish the summons in its entirety. “In doing so, the action will test international law and effectively ‘serve the President’,” he said.
The Plaintiffs in the case are seeking damages in excess of 3 billion rupees or US $30 million against President Rajapaksa for actions allegedly occurring under his command responsibility as Head of State and Commander-in-Chief of the Armed Forces.
The complaint alleges that President Rajapaksa held 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 Tevarajah family, all relatives of Plaintiff Jeyakumar Aiyathurai.
International human rights groups and advocates for press freedom are expected to closely monitor the Sri Lankan media and any Government fall out that journalists or media outlets may encounter by deciding to publish the summons.
Up until now all attempts to serve the summons on the President have been refused including under the Hague Convention, but international pressure on the regime is mounting.
Only hours after President Rajapaksa addressed the UN General Assembly last week, Sri Lanka’s Deputy Permanent Representative to the UN, General Shavendra Silva, was served on charges relating to war crimes by a U.S. Court.
After filing the motion, Fein said the sitting Judge will rule if summons can be served by press or electronic means.
Mr. Rick Hamilton
633 Yesler Way
Seattle, WA 98104
United States of America
1. This office is the Central Authority of the Government of Sri Lanka (“Central Authority”) designated in Article 2 of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”).
2. ON 06.06.2011 the Central Authority received a request (the “Request”) from Process Forwarding International, Seattle Washington to serve legal process in the form of a summons and complaint in the matter of Manoharam et al v Percy Mahendra (“Mahina”) Rajapaksa, pending in the United States District Court for the District of Columbia, Untied states of America, No. 1: 11-cv-00235 (CKK) (the “Manoharam Lawsuit”.)
3. It appears to the Central Authority that the Manoharan Lawsuit makes claims against the Head of State of the democratic Socialist Republic of Sri Lanka (“Sri Lanka”). H.E. President Mahinda Rajapaksa, for actions allegedly occurring under his “command responsibility” as Head of State, Head of Government and Commander in Chief of the Armed Forces of Sri Lanka.
4. It would be seriously prejudicial to Sri Lanka’s sovereignty for the Central Authority to facilitate proceedings in the Manoharan Lawsuit against President Rajapaksa because inter alia (a) As Head of State of Sri Lanka, President Rajapaksa is absolutely immune from the jurisdiction of the courts of the United States; (b) The claims against President Rajapaksa, for actions allegedly taken under his “command responsibility” as Head of state, Head of Government and Commander in Chief of the Armed Forces of Sri Lanka, are in substance claims against Sri Lanka itself, for which both Sri Lankan President Rajapaksa are entitled to sovereign immunity from suit; (c) The claims against President Rajapaksa intrude on the sovereignty of Sri Lanka because they seek to impose liability, under the laws of another country, for acts allegedly taken within the sovereign territory of Sri Lanka and under its own legal authority; (d) The claims against President Rajapaksa directly call into question expressions of comity and mutual respect between the governments of Sri Lanka and the United states, and thereby burden the relationship between the two nations; and (e) President Rajapaksa is not otherwise subject to the jurisdiction of a United States court for actions allegedly occurring entirely within Sri Lanka.
5. The Central Authority has been informed by the Attorney general of Sri Lanka that the foregoing points have been brought to the attention of the government of the untied states of America, Department of State.
6. Accordingly, pursuant to Article 13(1) of the Hague Service Convention, the Central Authority of Sri Lanka hereby refuses the request on the basis that compliance would infringe the sovereignty of Sri Lanka.
7. This note accordingly informs the applicant of the basis and reasons for refusal of the request, pursuant to Article 13 (3) of the Hague Service Convention.
Ministry fo Justiceand CentralAuthority
Suhada Gamlath, Secretary, Ministry of Justice did not come to the telephone when The Sunday Leader tried to reach him nor did he respond to messages to call back for a response on the fresh motion filed by Bruce Fein in the US courts on Friday.
The Sunday Leader spoke with Bruce Fein, Constitutional Lawyer and in the telephone interview via Skype, speaking from his office in Washington DC, he stressed that he was confident a US court would rule that by the local media having published the summons in full, it would effectively mean that the President had or would have indeed been served with a judicial process. When told that The Sunday Leader had spoken with lawyers in Sri Lanka who opined this would not be the case, Fein responded, “Those opinions are erroneous.”
Excerpts of the interview:
Q: How many actions have you filed under the TVPA (Torture Victims Prevention Act) with reference to human rights violations in Sri Lanka?
BF: Well, this is the first case that has been filed in the United States District Court on behalf of private plaintiffs. I filed earlier but not under the Torture Victims Protection Act but under our Prohibitions in the United States against Genocide and War Crimes, a proposed criminal indictment against Sarath Fonseka and Gotabhaya Rajapaksa. The reason they were selected was because one is a US citizen and the other is a permanent alien which gives the US criminal jurisdiction more aggressively than over someone like Mahinda Rajapaksa who is neither a permanent resident nor a citizen of the United States. That was submitted several years ago. The department formed a task force to examine it. It is still under review and you will recognize that even as we speak there are a full cluster of investigations as to whether or not some or all high level Sri Lankan officials should be at least investigated – if not prosecuted for crimes against international law in the waning months of the ethnic civil war that concluded in May 2009.
Q: Where have you filed these actions?
BF: They were filed in the United States District Court for the District of Columbia, which is a federal court – a reasonably sophisticated court. At the time we thought perhaps we would file in the Southern District of Texas because we had been given reason to think that President Rajapaksa was visiting a relative outside the Houston area. That information got its way to the President who scampered away out of the country but we are arguing among other things that there is universal jurisdiction for extrajudicial killings and torture which are crimes against civilization itself and therefore in the eyes of the law the crime is committed. Everywhere on the globe that authorizes any jurisdiction to exercise authority to decide these kinds of allegations because they are an effort really to destroy what we understand to be the fabric of international law.
Q: Are the Plaintiffs in this current action individuals or organizations?
BF: They are individuals. One is an individual – his son was killed during what is called the ‘Trinco 5’ massacre of students probably by the Sri Lankan naval forces. He was in the vicinity of the incident when it occurred and could hear the gunshots and the explosion that killed his son. Another is the wife of one of the Action Against Hunger 17 that were shot during their humanitarian mission and the third is an individual who’s relatives were slaughtered by artillery in a safe zone in the waning weeks of the ethnic civil war so they are all individuals – not organizations for the plaintiffs.
Q: Are they separate actions or have the complaints been filed collectively in one action?
BF: The three separate claims have been consolidated into one action. There is one case number. They arise out of a common pattern if you will. For judicial economy it made more sense to file in this one case rather than three separate cases.
Q: Your current summons names only President Mahinda Rajapaksa as defendant. Are you expecting to add any more defendants?
BF: At present we are focused on President Rajapaksa. When you have what is called discovery phases that indicates that others may have been complicit in these crimes we may add defendants. That is certainly permitted and you would have to move the court to add additional persons but at present we are just focused on President Rajapaksa.
Q: But have you decided on any one person or persons in particular that you would add as one or more defendants? Do you have anybody in mind? Anybody in particular?
BF: I do not want to discuss tactics – as you well know people who may feel they are vulnerable to a lawsuit may seek to destroy evidence or take means of evasion so I do not want to flag what we might do down the road. All I can say is that in the course of discovery we may happen upon evidence that indicates an ability to prove someone else was equally if not more culpable in the extrajudicial slaughters of our plaintiff’s relatives and if that is the case then we will examine if we should add additional defendants.
Q: You have failed thus far to serve summons on President Rajapaksa. How do you intend to proceed with this fresh motion?
BF: First of all the method that we utilized to attempt the service was through an international treaty called the Hague Convention of International Service Process and we sent a copy of the complaint that was received by the Ministry of Justice that is designated by Sri Lanka as the recipient of these complaints that are served in foreign countries. It refused to deliver the complaint and the summons to the President based upon Article 13 that said an authorization for national sovereignty to decline to serve a particular document. So we are proposing in a motion that we will file on Friday, September 30 alternate means of service including sending it by publication to a newspapers of general circulation in Colombo as well as posting it on a website that we know Sri Lankan officials monitor very closely. We intend to also post the summons on the President’s Facebook and Twitter pages as well. He has got a million dollar lobbyist in Washington DC so we propose to serve a copy of the summons and complaint to his lobbyist probably at Patton-Boggs. So these are… There are some email addresses as well that we may propose to send it to and lastly he did establish a Post Office Box in the United States in which to receive political donations to his campaign and we would propose to send the copy of the summons and complaint to that address as well. These are all that we think are reasonably calculated to alert the President of the facts of the lawsuit and the necessity to respond in twenty days.
Q: The Sunday Leader has already consulted with Sri Lankan lawyers who say that by your having the summons published in the local media in Sri Lanka, it will NOT or cannot in a court of law be deemed for those same summons to have been served on the President.
BF: Well they can make that argument in the court here. Our examination of law indicates that that assertion is an error and that indeed there are Sri Lankan cases indicating that even within those jurisdictions within Sri Lanka that there are situations where service by publication is authorized. The law ordinarily does not reward somebody who is obviously trying to evade and run away from service. In this situation also I want to add that last Saturday – this was during the President’s sojourn to the United Nations – we attempted to serve him when he visited a Buddhist Temple in Queens, New York. He had bodyguards that prevented the delivery of a copy of the summons and the complaint, and judges ordinarily are not happy when they see clear efforts to evade a service of process
Q: Is that method legal under Article 2 of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial matters?
BF: No they did not comply with what we considered to be their obligations under the Hague Convention. Our obligation is to convince the judge under rules – it is rule 4F3 if your audience cared – that they are authorizing additional methods outside the Hague Convention to effectuate service of process. That is what we are attempting. Obviously the Hague Convention did not work with us because the Ministry of Justice invoked Article 13 and said it was a matter of national sovereignty and they would not deliver the document so I myself – knowing the power structure in Sri Lanka where it is absolutism under the Rajapaksa family – the idea that the Ministry of Justice did not show it to the President to me is ridiculous.
Q: I Have a letter in front of me from Suhada Gamlath, Secretary to the Ministry of Justice in June this year to Mr. Rick Hamilton where he pretty much states what you articulated a few minutes ago; that it would be seriously prejudicial to Sri Lanka’s sovereignty for the central authority to facilitate proceedings on the Manoharan lawsuit against President Rajapaksa. He then goes on to basically say how that will be prejudicial as you pointed out. Now you just said you thought it was, “ridiculous” – that the Ministry of Justice in Sri Lanka did not even show the summons to the President, or the letter. Could you elaborate on that in the backdrop of Gamlath’s response?
BF: Yes. In Sri Lanka everything that happens or is done is done with the expressed or implicit authority of the President and his family. They run the whole government as you well know! You know it better than I do and the idea that anyone can make a serious decision in government without consulting with the President or his agents is ridiculous!
Q: The Sunday Leader has been sent a copy of the summons by your office. Is the summons being sent to other newspapers in Sri Lanka?
BF: It is certainly available. This is a public document. It is not secret. It is not classified. Anyone can walk into the courthouse and go to the Clerk and pay I do not know – it is ten cents a page – I am not sure what that translates into Sri Lankan currency – for a public document so we are not trying to hide this. If any other paper that wants to get copy of the complaint, we are eager to send it to them over the electronic system – so it is not singling out The Sunday Leader. This is something that is available to anyone who wishes to be informed about what is occurring.
Q: But has any other newspaper or website in Sri Lanka actually shown an interest, any kind of interest in these summons, or said that they would publish them?
BF: They did not ask so we did not volunteer so I am not sure that that observation means a whole lot since I have not attempted to ask anybody, any of these newspapers to publish it. So I have not gotten any no’s and I have not got any yes’s.
Q: How would the Sri Lankan media by publishing the summons BEFORE you get the order from the USA court make it legally acceptable under US law?
BF: I do not think the publication before the motion is filed or after will have any influence one way or the other. It is simply something that the people of Sri Lanka may wish to be informed about in deciding what kind of government they wish to have in going to the ballot box and voting accordingly. It is really simply in furtherance of the idea that any kind of democratic dispensation should be transparent. People need to know what their government is doing and what they have been accused of.
Q: But that’s not the point Bruce. Since this is a civil suit and redress will be payment of money.
Q: Since this is a civil suit any redress would be payment of money. The defendant would not pay but will at maximum be unable to visit the USA in such eventuality. The newspaper that publishes the summons would be saddled with handling a very hostile President, who in all probability would become more of a patriot within this country after this. There is no finality of the President being removed due to this. In that sense unless there is collective publication by many newspapers the risk (for a civil suit) is solely for only those newspapers/websites that choose to publish the summons. What benefit is there for the country and her people?
BF: There is always a benefit of transparency. Now you can believe or not believe the lawsuit. I mean we filed it and we want to give the President the opportunity and the chance to respond. There have been no responses to date as to these accusations… and what is the benefit to Sri Lankan’s? I am not going to tell Sri Lankan’s how they ought to run their government or their country. And I am not ordering anybody to publish it. If newspapers do not find this newsworthy, that is up to them. I think it is a little nearsighted to suggest because President Rajapaksa is currently in power and if there was a judgment probably he would not pay. He has probably secreted his assets so they are not readily immediately collectible. He may not serve for life. There have been many people who thought they were indispensible and would reign in power forever who ended up losing power as you can read in newspapers looking at Colonel Gaddafi and President Mubarak. Who knows? It may soon be Ben Ali in Tunisia or maybe Syria. Who knows? Mr. Rajapaksa may find he is not in a government that is not going to protect his finances and his assets forever and so even if there is a judgment there and he loses his power then it takes on a whole new complexion with a political party and authority but hey I am not a clairvoyant. I do not know exactly what will happen with regard to the Sri Lankan government. I do know that it is seldom that despots remain in office forever.
Q: Under the Foreign Sovereign Immunity Act, is there a possibility of proceeding with an action against a Foreign Head of State on non commercial matters?
BF: We are not suing the government of Sri Lanka. We are not suing the President in his official capacity. Those create far more formidable legal obstacles. We are suing President Rajapaksa as an individual under a clear theory that NO GOVERNMENT IS AUTHORISED TO PERMIT – any official at any time, any place – to commit torture or extra judicial killings. It can never be an official act of government. The law does not recognize that as other than uncivilized, lawless, immoral and otherwise. There are no circumstances, I REPEAT NONE UNDER THE LAW that ever justifies torture, that ever justifies an extrajudicial killing and that is why we do not confront a sovereign’s foreign immunity or an official head of state exemption because it is not an official act. When you do something like this you are acting outside the pale of civilization itself.
The motion: http://www.thesundayleader.lk/wp-content/uploads/2011/10/Motion-for-Alternative-Service.pdf