Gota given extension to file response to charges in US civil complaints

By Hassina Leelarathna in Los Angeles

The US District Court, Central District of California, has granted former Defence Sec. Gotabaya Rajapaksa time till 29 May to file a response to the civil case filed against him by Roy Manojkumar Samathanam, who is seeking unspecified monetary damages for torture he claims to have suffered while in custody for aiding the Tamil Tigers. 

The same extended date has been granted in the separate civil complaint filed by Ahimsa Wickrematunge, daughter of slain journalist Lasantha Wickrematunge. Rajapaksa was served papers in both cases on 7 April, which initially required a response by 29 April.

Rajapaksa is being represented in both cases by John C. Ulin of Arnold & Porter Kaye Scholer, a leading international law firm which has offices in several US cities as well as in Europe and China. 

The request for the extension in the Samathanam complaint said defence attorneys required sufficient time to familiarise themselves with the case and to prepare a response. 

It also indicated Rajapaksa “intends to file a motion to dismiss on forum non conveniens [FNC] grounds,” and that he will request a further extension through 27 June.

FNC is a common law legal doctrine invoked if one or more of the parties resides outside the territorial jurisdiction of the court, or there are other factors which might make another forum more appropriate. It encourages US case dismissal if a foreign legal system better serves the ends of justice and judicial economy. FNC gives US federal and state judges the latitude to dismiss a case, but defendants bear a heavy burden proving “oppressive or vexatious disadvantages” resulting from the plaintiff’s choice of forum. 

Because FNC is based on common law and judge-made standards, it is hard to find uniform and predictable application of the doctrine. It becomes even more complicated in cases involving non- citizen plaintiffs who bring actions against defendants in forums other than those in which the incident giving rise to the action occurred. 

Samathanam is a Canadian citizen while Rajapaksa, a dual Sri Lankan-American citizen, has already applied to renounce US citizenship (in order to qualify as a presidential candidate in Sri Lanka).

Regardless of citizenship, the Torture Victim Protections Act (TVPA) invoked in Samathanam’s case grants US courts jurisdiction over suits by aliens alleging torture under the colour of law. The act expresses a US policy interest in furnishing an American forum for “egregious international law violations.” Samathanam is demanding a jury trial for alleged torture, civil assault, civil battery, intentional infliction of emotion distress, and false imprisonment during his detention by the Terrorism Investigation Department (TID). According to the complaint, he was arrested in September 2007 and “falsely accused of importing a GPS device.” He was detained further when he refused to pay a bribe for his release. He claims to have been “beaten with metal pipes, clubs, and rifle butts” and “his jailers threatened to rape and kill his wife.”

Samathanam holds Rajapaksa responsible for the alleged torture claiming that the TID was under the authority of the Inspector General of Police (IGP) who in turn reported to the Secretary of Defence who “commanded all agencies of the Sri Lankan military and police forces, including TID.”

He directly links Rajapaksa to his alleged torture by claiming he spent the first 8 months of his detention, September 2007 to April 2008, imprisoned at the TID detention centre, where he was handcuffed at all times to a desk in the office of one Sergeant Abdeen. From this vantage point he was allegedly able to eavesdrop on a phone conversation between the officer-in-charge Prasanna de Alwis and Rajapaksa while they discussed his case. He was allegedly brutalised that very evening by the “second-in-command” Inspector Peiris.

According to published reports, Samathanam was charged with violating laws in existence at the time regulating the importation of high-tech communication often used in attacks on military and civilian targets. Charges against him included the illegal possession of 600 mobile phones and GPS devices. Some of the equipment in his possession at the time of his arrest was meant for the National Television of Thamil Eelam (NTT), the LTTE’s illegal television channel broadcasting from the Wanni District. He was also found to have close links with the Tigers’ intelligence operations.

He was indicted in the High Courts in Colombo in 2009 and fined Rs. 500,000. He was eventually released from custody in July 2010, after accepting all charges against him.

Samathanam, with the help of the Canadian Center for International Justice (CCIJ) in November 2013, took his claims to the United Nations Human Rights Committee (UNHRC). In November 2016, the Committee concluded that in the absence of a rebuttal or clarification on the part of the “State party,” “the Committee finds a violation by the State party of article 10 of the Covenant [International Covenant on Civil and Political Rights].”

The UNHRC complaint only names “the State party” and makes no mention of Rajapaksa or any of the police officers named in the US complaint. It also does not include any verbal or written witness statements corroborating Samathanam’s allegations. 

In both complaints, he claims being denied access to a lawyer, but does state it was his lawyer who negotiated an agreement for his release from prison.