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Ahimsa’s case against Gota lies in balance
The next hearing into the case filed by Ahimsa Wickrematunge in the US District Court for the Central District of California against Gotabaya Rajapaksa, the former Defence Secretary, for the assassination of her father, Lasantha, has been cancelled.
“We are now awaiting a decision on either the motion to stay or the motion to dismiss for the Wickrematunge v. Rajapaksa case,” the Centre for Justice and Accountability (CJA), through which the case was filed, said in a statement.
“Upon reviewing the written submissions from the parties, the judge in the case has decided that he does not require additional oral arguments in making his decision on the motions,” a CJA spokesperson said. “Because the practice in the Central District of California is to set a hearing date when the motions are filed, it is possible to be advised quite close to the hearing date that a judge will not require additional oral arguments.”
Unless otherwise specified in the order, a stay suspends all proceedings in the action to which it applies. The court can subsequently lift the stay and resume proceedings based on events taking place after the stay is ordered. A dismissal will amount to the case being thrown out of court.
Ahimsa filed action against Mr Rajapaksa in April this year, requesting a jury trial and compensation. The CJA said it decided to bring the civil suit in the US as there were no charges filed against those responsible for Mr Wickrematunge’s death in Sri Lanka. Mr Rajapaksa was served the papers at Montrose in California on April 7.
The complaint alleges that Mr Rajapaksa was involved in the extrajudicial killing of Mr Wickrematunge as well as the widespread and systematic targeting of other journalists perceived to be critical of the Rajapaksa Government. It brought civil claims under two federal statutes: the Torture Victim Protection Act (TVPA) and the Alien Tort Statute (ATS). Neither of these laws requires US nationality to pursue a claim. However, the defendant must be within the jurisdiction of the US.
Mr Rajapaksa’s Counsel first filed a motion to stay the case on the grounds that it would inter alia “distract him from the campaign”. He pleaded before court that the lawsuit had created a media circus in the country.
“In the intensity of an election campaign, every action by the court or the parties, in this case, will be disseminated, amplified, and potentially distorted in ways that are beyond this court’s control,” his motion said. “This court could find itself a major factor in a foreign election, potentially even influencing its outcome.” He also said Mr. Rajapaksa was likely to win the election and, if so, he would be immune from further legal action.
Ahimsa’s lawyers objected to the motion saying it was “wholly speculative” in nature. Mr Rajapaksa could not demonstrate that, without a stay, he will suffer a “clear hardship or inequity”, they said.
He will suffer no harm unless several contingencies are all resolved in his favour, they pointed out. This included becoming an official presidential nominee; surviving potential challenges based on his US citizenship, other constitutional challenges, and investigations of complaints lodged with the Election Commission currently pending in Sri Lanka; thereafter actually winning the election; and possible issuance of a Suggestion of Immunity by the State Department.
Mr Rajapaksa’s lawyers also filed a motion to dismiss the case on the basis that he would be entitled to “foreign official immunity” as the murder would have been orchestrated as an official act of the Sri Lankan Government.
They said the lawsuit had no place in US courts and Sri Lanka had a far greater interest in the litigation. This called for a dismissal based on forum non conveniens (discretionary power that allows courts to dismiss a case where another court, or forum, is much better suited to hear the case).
“All the conduct alleged in the complaint occurred in Sri Lanka,” the motion said. “All the allegations point to parties, witnesses, and evidence located in Sri Lanka. That includes Mr. Rajapaksa, who resides in Sri Lanka and is currently running for president there; members of the Sri Lankan military and any other potential witnesses; and evidence gathered by the Sri Lankan government in an ongoing investigation. Nothing whatsoever ties this litigation to the United States.”
But, even if the US was a convenient forum, the complaint alleges conduct undertaken solely in Mr Rajapaksa’s capacity as Secretary of Defence of Sri Lanka.
“Mr Rajapaksa therefore is immune from suit under common-law foreign-official immunity, and the complaint must be dismissed for lack of subject-matter jurisdiction,” his lawyers maintained.
Ahimsa’s lawyers argued that the former Secretary of Defence of Sri Lanka had no immunity because Mr Wickrematunge’s assassination and violence against journalists could not be official acts of State, nor had the Sri Lankan Government sought immunity for Mr Rajapaska.
They also said the US was the only forum available for Ahimsa to bring this case because Mr Rajapaksa’s continued political influence in Sri Lanka means that litigation there “will be fraught with corruption, delay, and danger to litigants and witnesses”.