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Mahinda Rajapaksa was served a US court summons on Friday, under the US Torture Victim's Protection Act for extrajudicial killings - a civil suit.
The case was brought by three plaintiffs who allege that Rajapaksa held command responsibility for extrajudicial killings of Ragihar Manoharan, the son of plaintiff Dr. Kasippillai Manoharan; of Premas Anandarajah, a humanitarian aid worker for Action Against Hunger and the husband of plaintiff Kalaiselvi Lavan and four members of the Tevarajah family, all relatives of plaintiff Jeyakumar Aiyathurai.
Rajapaksa has so far evaded a accepting a legal summons, by simply refusing or instructing his government officials, including the Minister for Justice, to refuse any official summons.
In an unprecedented attempt to overcome this obstacle, US constituitional lawyer, Bruce Fein, has issued the summons via over 100 media outlets in Sri Lanka, social networking sites and the internet - so that it becomes impossible for Rajapaksa to plead ignorance of the summons issued for him.
At the same time as issuing the summons, Fein, filed a motion in the US District Court for the District of Columbia, requesting Judge Colleen Kollar-Kotelly to authorise the novel method by which it has been issued.
In an interview with The Sunday Leader, Fein outlines the plan:
"First of all the method that we utilized to attempt the service was through an international treaty called the Hague Convention of International Service Process and we sent a copy of the complaint that was received by the Ministry of Justice that is designated by Sri Lanka as the recipient of these complaints that are served in foreign countries.
It refused to deliver the complaint and the summons to the President based upon Article 13 that said an authorization for national sovereignty to decline to serve a particular document.
So we are proposing in a motion that we will file on Friday, September 30 alternate means of service including sending it by publication to a newspapers of general circulation in Colombo as well as posting it on a website that we know Sri Lankan officials monitor very closely.
We intend to also post the summons on the President’s Facebook and Twitter pages as well. He has got a million dollar lobbyist in Washington DC so we propose to serve a copy of the summons and complaint to his lobbyist probably at Patton-Boggs.
So these are… There are some email addresses as well that we may propose to send it to and lastly he did establish a Post Office Box in the United States in which to receive political donations to his campaign and we would propose to send the copy of the summons and complaint to that address as well.
These are all that we think are reasonably calculated to alert the President of the facts of the lawsuit and the necessity to respond in twenty days."
In addition to Sinhala newspapers and websites, the motion argues that Tamil opposition newspapers and websites, in particular Tamilnet, are closely monitored by the Sri Lankan government.
Extract from the motion filed:
"Since the Sinhalese Buddhist majority has maligned the ethnic Tamil minority as “terrorists” or “insurgents,” Plaintiffs can reasonably assume that the Sri Lankan Defense Ministry meticulously monitors its opponents among the Tamil diaspora.
Because of continuous government monitoring of Tamilnet Plaintiffs submit that publication of the Complaint and Summons upon the front page of this opposition website would be reasonably calculated to provide actual notice to the Defendant and would not be prohibited by international agreement.
Despite critics who argue this method of issuing the summons will not stand in a court of law, Fein remains hopefully.
"The law ordinarily does not reward somebody who is obviously trying to evade and run away from service."
"We attempted to serve him when he visited a Buddhist Temple in Queens, New York. He had bodyguards that prevented the delivery of a copy of the summons and the complaint, and judges ordinarily are not happy when they see clear efforts to evade a service of process."
In response to the obstacle of immunity for a Foreign Sovereign, Fein argued,
"We are not suing the government of Sri Lanka. We are not suing the President in his official capacity. Those create far more formidable legal obstacles.
We are suing President Rajapaksa as an individual under a clear theory that no government is authorised to permit - any official at any time, any place – to commit torture or extra judicial killings.
It can never be an official act of government. The law does not recognize that as other than uncivilized, lawless, immoral and otherwise.
There are no circumstances, I repeat none under the law, that ever justifies torture, that ever justifies an extrajudicial killing and that is why we do not confront a sovereign’s foreign immunity or an official head of state exemption because it is not an official act.
When you do something like this you are acting outside the pale of civilization itself."
See motion in full here.
See here for the views of US based group TAG (Tamils Against Genocide).
