02 June 2011
Attorney for the three Tamil plaintiffs who filed civil action against Sri Lanka’s President Mahinda Rajapakse for monetary damages under US’s Torture Victims Protection Act (TVPA) in the District Court of District of Columbia, informed the Court Tuesday that defendant, Mahinda Rajapakse, has avoided service of process by not accepting mail sent by recorded delivery to the Sri Lanka embassy and “Temple Trees,”
and that Plaintiffs are in the process of attempting to serve via Sri Lankan central authority in accordance with the provisions of “The Hague Convention,” to which the U.S. and Sri Lanka are signatories. Plaintiffs will seek authorization from the court for alternate means of service, such as notification via a legal publication.
Plaintiffs’ attorney, Bruce Fein, told TamilNet that the Sri Lanka embassy in the U.S. and the mail handlers at the Temple Trees, the official residence of Sri Lanka’s President Rajapakse, have refused to accept summons and the complaint sent to the two addresses by recorded delivery.
Mr Fein added that if the defendant fails to accept service through the Hague Convention service of process, then the plaintiffs will file a motion with the Court seeking authority to effectuate service by publication. For this exercise, Fein said that the regulations require that summons and the complaint be translated into the native language of the defendant, Sinhala. The Sinhala translation of the complaint is now available for the benefit of the Sinhala public, Fein said.
Once the Court agrees to service by publication, failure to answer by the defendant will result in a default judgment and a court order for the defendant to pay the plaintiffs the damages. This is a critical step, Fein cautioned, as the Court need to be convinced that it has personal jurisdiction over the defendant before agreeing to a default judgment.
In a communication to TamilNet, Attorney Fein said:
We are currently seeking to serve the Complaint and Summons in Monoharan et al v. Rajapaksa (Civil Action No. 11-235(CKK) under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. We anticipate Sri Lankan authorities will refuse to effectuate service under Article 13 of the Convention by invoking state sovereignty or security. Two previous efforts to make service by mail have failed.
To avoid dismissal of the Complaint for lack of service, we will soon need to seek a court order authorizing service by publication or other non-traditional means. This will require us to establish a prima facie case of personal jurisdiction over President Rajapaksa in the United States District Court for the District of Columbia.
We will need to fashion a pioneering legal theory–building on universal jurisdiction to prosecute the crime of genocide—that universal jurisdiction under international law should also be recognized in civil suits founded–as is the Torture Victims Protection Act–on torture or extrajudicial killings under color of foreign law. We will be seeking to establish a landmark personal jurisdiction ruling.
Its implications for Tamils are electrifying. If a theory of universal jurisdiction is accepted, Tamil expatriate victims could sue any Sri Lankan government official, including Gotabhaya or Sarath Fonseka, for complicity in torture or extrajudicial killings during the gruesome decades of the ethnic civil war under the TVPA in United States Courts.
The high legal stakes underscores the urgency of attracting the resources needed to draft a polished and meticulously researched and argued brief in favor of universal jurisdiction over the international torts of torture or extrajudicial killings under color of foreign law. We will also be seeking to attract amicus curiae briefs from prominent human rights organizations.
In Mwani v. United States, on the alternate service issue, “the district court granted the plaintiffs leave to serve those defendants by ‘‘publishingTTT notice for six weeks in the Daily Washington Law Reporter, the International Herald Tribune, and Al–Quds Al–Arabi (in Arabic).’’
The district court also held that, to enter a default, it ‘‘must have jurisdiction over the party against whom the judgment is sought,’’ and the plaintiffs must demonstrate such jurisdiction by a preponderance of the evidence. According to Fein the jurisdictional angle is where the legal effort will be expended next.
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wiki: Hague Service Convention