After avoiding service for more than 9 months, and despite statements by Colombo that Sri Lanka’s President Mahinda Rajapakse is not answerable to US Courts, Rajapakse-appointed counsel from the lobby firm of Patton Boggs filed a motion with the District Court of District of Columbia for “enlargement of time to respond to the complaint” related to the legal action, 11-cv-00235, by three Tamil plaintiffs sponsored by Tamils Against Genocide (TAG), a US-based activist group.
Legal observers expressed surprise at the filing, which, in addition to effecting waiver of service, also attempts to set the time window for response pleading tied to a discretionary act by Judge Kotelly on seeking view of the US State Department.
Bruce Fein, attorney for the plaintiffs, said that the Court will likely reject the defendant’s request, and set a time limit for the defendant to answer the complaint. The judge will independently decide if and when to seek views from the State Department, Fein said.
Legal observers said that despite earlier defiance, Rajapaksas may have relented after receiving legal advice from US indicating that failure to respond to the Court summons may result in a default judgment which will likely bar Rajapaksa from entering the US without paying the monetary award if granted by the court.
Spokesperson for Tamils Against Genocide (TAG), said: “This is a landmark development for the expatriate Tamils who are forcing Sri Lanka’s President to a neutral western court to answer charges of war-crimes. From absolute immunity enjoyed by Heads of State before world-war II, evolving restricted immunity doctrines within the US’s Federal Surveillance and Intelligence Act (FSIA) with the exception clauses will force Rajapakse to present exculpatory legal or factual arguments to rebut exceptions to immunity likely to be advanced by plaintiffs. Tamil lobby groups should work with sympathetic congresspersons to write letters of support for the case, and pressure the executive branch not to bail out the perpetrator of crimes against humanity,” TAG added.
Plaintiff’s attorney indicated that once the Court sets a time-line for submission he will review with plaintiffs the legally opportune time to include additional defendants to the case, including Gotabaya Rajapakse.
In addition to seeking the view of the US State Department, Rajapakse filing, even while the verdict on the acceptability of LLRC’s work is being debated, disingenuously asserts that “United States Government has endorsed the work of the LLRC in addressing allegations concerning the actions of the combatants during the now-ended conflict” and uses the Assistant Secretary of State, Robert O’ Blake’s statements as defense to Rajapakse’s alleged crimes and the purported US’s policy approach to Sri Lanka, legal sources who have studied the Rajapakse motion said.
The future plan of legal defense of Rajapakse as briefly outlined in the Motion includes the following: (a) Court has no personal jurisdiction, (b) Heads of State are absolutely immune from suit in the United States, (c) Senior foreign government officials are entitled to foreign official immunity (d) plaintiffs’ claims raise non-justiciable political question, and (e) U.S. judicial evaluation of alleged sovereign acts within Sri Lanka would violate the Act of State doctrine.
Legal experts said that absent State Department intervention to save Rajapakse, the legal war will center around the restrictive immunity that may arise from the doctrines involving Head of State immunity. “That Patton Boggs would raise Act of State defense for the crimes against humanity alleged against Rajapakse, is unexpected,” a legal expert said.
The Complaint by the three Tamil plaintiffs alleges multiple violations of the Torture Victims Protection Act (TVPA) based on Sri Lanka’s President Rajapaksa’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 husband of Plaintiff Kalaiselvi Lavan, and four members of the Thevarajah family, all relatives of Plaintiff Jeyakumar Aiyathurai.