By Nirmala Kannangara
The Ninth Circuit Court of Appeal of the United States on Friday February 28 allowed the Appeal Petition filed by Ahimsa Wickrematunge, daughter of the slain Sunday Leader Editor Lasantha Wickrematunge, to vacate the Lower Court’s ruling which was delivered on October 22, 2019.
In April 2019, attorneys from the San Francisco-based Centre for Justice and Accountability (CJA), representing Wickrematunge filed a lawsuit in the United States District Court for the Central District of California, seeking to hold Gotabaya Rajapaksa – now the president of Sri Lanka – for his alleged involvement in the assassination of her father, and in the widespread and systematic targeting of journalists perceived to critical of the government. But however, the court delivered the verdict dismissing the case on Monday, October 22, 2019, claiming that Rajapaksa is entitled to common law foreign official immunity for the acts that are alleged—acts of torture, extrajudicial killing, and crimes against humanity whilst he was the Defence Secretary in Sri Lanka.
The reason for the Court to dismiss the case was that it lacks the jurisdiction to consider Ahimsa’s claim as ‘Rajapaksa is entitled to common law foreign official immunity for the acts that are alleged—acts of torture, extrajudicial killing, and crimes against humanity. The Court found that these acts were committed in his official capacity as Sri Lanka’s Secretary of Defence and the Court has not made any finding on the actual merits of the allegations against Rajapaksa, which includes his alleged responsibility for the extrajudicial killing of the plaintiff’s father and for the Sri Lankan government’s campaign of violence against journalists during the civil war’.
Later, Ahimsa Wickrematunge, challenged the verdict delivered by the United States District Court for the Central District of California in the lawsuit filed against the former Defence Secretary Gotabaya Rajapaksa on the extrajudicial killing of her father Lasantha Wickrematunge.
The appeal was filed on Wickrematunge’s behalf by attorneys from the San Francisco-based Centre for Justice and Accountability (CJA) and Debevoise & Plimpton LLP.
Following the dismissal of her case on October 22, 2019, Wickrematunge told the Daily Mirror that her counsels will appeal against the judgement and is confident that she will succeed in the appeal, and added that it is disappointing that those who were involved in her father’s murder are now roaming free but she and her counsels will ensure that the perpetrators do not escape justice.
However, last week, the appeal filed by the attorneys representing Wickrematunge was granted to dismiss the case without prejudice, as Rajapaksa’s accession to the presidency of Sri Lanka last November gave him immunity from suits in US courts for so long as he remains President.
The Ninth Circuit’s decision clears the way for future litigation against Rajapaksa once he no longer enjoys immunity as a Head of State.
Releasing a press statement Carmen Cheung, Director Legal, Center for Justice and Accountability states that Lasantha’s killing was neither authorised nor ratified by the Sri Lankan government, and the violent targeting of journalists should never be considered legitimate acts of state and that they are pleased that Ahimsa got the opportunity to bring her case again.
“The Ninth Circuit correctly vacated the lower court’s decision when Ahimsa’s appeal could no longer be heard, because of Rajapaksa’s newly acquired immunity. We are pleased that this decision gives Ahimsa another chance at justice for her father.” says Natalie Reid of Debevoise & Plimpton.
Ahimsa Wickrematunge brought her case under the Torture Victims Protection Act (TVPA) of the United States which reads that any individual who, under actual or apparent authority, or colour of law, of any foreign nation subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative or to any person who may be a claimant in an action for wrongful death.