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Ex-envoy Wickramasuriya’s fraud case: US dismisses immunity given by new Govt.
Jaliya Wickramasuriya, former Sri Lankan Ambassador to Washington, “does not enjoy residual immunity for his wire fraud, money laundering and his false statements on an immigration application, and it therefore is irrelevant whether or not Sri Lanka waived any immunity he continued to enjoy”, US Government attorneys said.
They made the observation in a recent filing before the US District Court for the District of Columbia in the ongoing case against the former envoy.
The filing was in response to recent efforts by Mr Wickramasuriya to have his diplomatic immunity reinstated by the new Sri Lankan Government after it was withdrawn by the previous Government in 2017 to assist a US criminal investigation into some of his actions while he was Ambassador.
Citing the Vienna Convention on Diplomatic Relations and the US Diplomatic Relations Act, the US state attorney Michael R Sherwin has told Court that Mr Wickramasuriya “does not enjoy residual immunity for his efforts to acquire US$ 332,000 for himself when he was purchasing the property for the new embassy for Sri Lanka”.
“His conduct was not an official act for which residual immunity would be available,” Mr Sherwin holds, in official legal documents obtained by the Sunday Times. “Finally, the Sri Lankan government’s waiver of the Defendant’s immunity was properly communicated to the State Department, through standard diplomatic channels, and there is no reason to suspect that it is invalid or ineffective.”
In May 2018, a Grand Jury indicted Mr Wickramasuriya on two counts of wire fraud, two counts of money laundering and one count of visa fraud. He was brought before the US District Court for the District of Columbia in January 2019 to answer the criminal charges. He pleaded not guilty and later lodged a motion in Court to dismiss the indictment on grounds of diplomatic immunity.
In 2017, however, the US State Department had requested the Sri Lanka Government through the Ministry of Foreign Affairs to waive his immunity saying he was under investigation for “the misappropriation, theft, and embezzlement of public funds by a public official and the related laundering of those funds”.
In a communication to the Ministry, the State Department said US law enforcement had found Mr Wickramasuriya to have falsely inflated the sales price by about US$ 332,000 during the 2013 purchase of the Sri Lankan Embassy in Washington DC. He then allegedly laundered those funds via shell companies, “all in violation of the US money laundering and wire fraud laws”.
Prasad Kariyawasam, who was then Secretary to the Ministry of Foreign Affairs, replied on October 23, 2017, through the US Embassy in Colombo, waiving off any immunity Mr Wickramasuriya enjoyed with regard to such investigations including, but not limited to, testimonial immunity from the criminal, administrative and civil jurisdiction of the United States”.
Mr Wickramasuriya filed a writ application in Sri Lanka’s Court of Appeal against the decision. But his application was dismissed in March 2018 on grounds that the revocation of his diplomatic immunity was done on President Maithripala Sirisena’s instructions and the Court could not overrule it. Mr Wickramasuriya’s writ appeal is now before the Supreme Court.
Both his indictment and arraignment in US Courts were facilitated by the Sri Lanka Government’s revocation of diplomatic immunity. The trial started during the second quarter of this year.
Mr Wickramasuriya has also filed a motion in the US District Court for the District of Columbia to dismiss the indictment on diplomatic immunity grounds. His counsel contends that, under Sri Lanka’s Constitution, the President is the appointing authority of Ambassadors and High Commissioners.
“Accordingly, if diplomatic immunity enjoyed by Ambassadors/High Commissioners is to be waived, such instructions should also be issued by His Excellency the President as the appointing authority and be communicated through Secretary to the President to the Foreign Secretary…” his Counsel, Shavindra Fernando, PC, has filed.
Mr Wickramasuriya’s legal efforts are backed by the new Government, according to documents seen by the Sunday Times.
For instance, on a request by Presidential Secretary P.B. Jayasundera, the then Foreign Relations Ministry Secretary Ravinatha Aryasinghe wrote to the US Embassy in Colombo in July this year.
Mr Aryasinghe maintained that, while a Note Verbale was issued by the Ministry in October 2017 withdrawing Mr Wickramasuriya’s diplomatic immunity, it “appears” to have been issued on former President Maithripala Sirisena’s instructions. “The Presidential Secretariat and the Ministry of Foreign Relations have been able to verify that no records are available in both offices to prove that former President has issued such instructions”, he says.
This was despite Mr Kariyawasam having provided a sworn affidavit to Sri Lanka’s Court of Appeal that he had been acting on President Sirisena’s instructions.
The US State Department’s rejection of Sri Lanka’s request for a reinstatement of diplomatic immunity for Mr. Wickramasuriya is also among Court papers. Citing the Vienna Convention, it says the US notes that, “waivers must be express, but international law does not dictate the internal domestic process for waiver or provide that a waiver can only be made by a head of State or government”.
The State Department insisted that the 2017 waiver was expressed and properly communicated. Since then, the US Government has relied on and taken steps consistent with the waiver.
“It is a well-established principle of international law that a sending State cannot revoke a waiver of immunity once it has been given,” the note says. “Therefore, to the extent that any residual immunity might have applied with respect to Mr Wickramasooriya [sic] in the pending proceeding, the United States considers the Democratic Socialist Republic of Sri Lanka to have validly waived Mr Wickramasooriya’s [sic] immunity.”
A further note issued in September this year to the US State Department by the Sri Lankan Embassy in Washington maintains that the relevant Sri Lankan authorities continue to hold the view that the revocation of his diplomatic immunity was not valid and that the “diplomatic immunity of Mr Wickramasuriya has never been waived, as due internal process has not been followed”.
“Hence, the decision taken at the highest government level to withdraw Note Verbale No L/POL/33 dated October 2017, is reiterated,” the Embassy states, requesting that the contents of the relevant Note Verbale “so withdrawn is not used in any manner contrary to the position of the Government of Sri Lanka is reflected herein”.
Mr. Sherwin’s filing to Court was dated October 30, nearly two months after this last communication by the Sri Lankan Embassy. It shows there has been no change in the US Government’s stance with regard to the request for revocation of the waiver of diplomatic immunity.
“The Defendant’s argument that he enjoys residual immunity because the purchase of the new embassy building was performed in the exercise of his functions completely misses the point,” it states. “While actions legitimately related to the purchase of a new embassy building would very likely be considered part of the official functions of a diplomat, the fraud and money laundering at issue here cannot be considered part of the Defendant’s official diplomatic functions.”
His official responsibilities regarding the purchase of a new embassy building also did not require, and were not furthered in any way, by misstating the purchase price of the building and the fraudulent activity to arrange transfer of the excess amounts for his own benefit, it maintains.
The charges in the indictment arise from alleged conduct in 2012 and 2013, during Mr Wickramasuriya’s tenure as Sri Lanka’s Ambassador to the United States (from 2008 to 2014). After his term, he was granted permanent resident status in the US.
The case is proceeding in Washington D.C.