The Sunday Times exposé reveals the extent to which the Rajapaksa government went to protect then Ambassador Jaliya Wickramasooriya from criminal proceedings in the US  By Namini Wijedasa The case file of former Sri Lankan Ambassador to Washington, DC, Jaliya Chithran Wickramasooriya—sentenced in the United States last month for fraud—offers insight into just how far [...]

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Blood is thicker than justice, diplomacy

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The Sunday Times exposé reveals the extent to which the Rajapaksa government went to protect then Ambassador Jaliya Wickramasooriya from criminal proceedings in the US

 By Namini Wijedasa

The case file of former Sri Lankan Ambassador to Washington, DC, Jaliya Chithran Wickramasooriya—sentenced in the United States last month for fraud—offers insight into just how far administrations in Colombo will go to try and protect their own.

It was never in question that Mr Wickramasooriya, a cousin of Presidents Mahinda and Gotabaya Rajapaksa, had committed the crimes for which he was indicted in the US. His main argument was that he was entitled to immunity for them, as they had been carried out while he was ambassador.

But Mr Wickramasooriya’s immunity had been removed on October 23, 2017, on a US State Department request. The waiver, contained in a diplomatic note or “note verbale”, was signed by Prasad Kariyawasam, then Secretary to the Ministry of Foreign Affairs, on the instructions of then President Maithiripala Sirisena.

Mr Wickramasooriya’s defence insisted this document was void. And his attempts to validate that position sucked in two subsequent Foreign Secretaries, the Office of the President and the Ministry of Foreign Affairs/Relations—pitting them all against the diplomatic note issued by Mr Kariyawasam.

Former Ambassador Jaliya Wickramasooriya, a cousin of Presidents Mahinda and Gotabaya Rajapaksa pleaded guilty to the charge of financial fraud. Left: the Sri Lankan embassy which was in the centre of the criminal case in Washington DC

The documents show Colombo contradicting itself in an attempt to rescue a political Head of Mission, a close family member of the appointing authority, from an otherwise airtight case he later admitted guilt for.

The trail of evidence–how positions, including at the Ministry of Foreign Affairs/Relations, shifted so rapidly and emphatically–leaves more questions, of a political nature than answers.

International cooperation

In April 2014, when his actions became known in limited circles, Mr Wickramasooriya was summoned to Sri Lanka by President Rajapaksa. His term as US ambassador ended. The following year, with the Government change, allegations against him were referred to the now defunct Anti-Corruption Committee Secretariat and, via the Inspector General of Police, to the Financial Crimes Investigation Division (FCID).

Separately, the US Department of Justice’s Kleptocracy Team, which investigates and litigates to recover the proceeds of foreign official corruption, contacted Sri Lankan authorities. The Federal Bureau of Investigation (FBI) was involved and it wished to cooperate. Parallel processes took place, with the FCID reporting facts to the Fort Magistrate.

In November 2016, after he was turned back from the Colombo airport, the FCID arrested Mr Wickramasooriya under the Offences against Public Property Act. He was remanded till March 2017. Court permitted him eight weeks’ foreign travel for medical treatment. In July, he went to the US.

Two months later, he was at the Atlanta Airport bound for Chile when US law enforcement stopped him and questioned him extensively regarding the same property transaction for which he was under investigation by the FCID. The following month, Sri Lanka waived his diplomatic immunity.

The contentious note verbale

The legitimacy of the note verbale issued by Mr Kariyawasam soon became central to Mr Wickramasooriya’s defence.

In 2017, the former ambassador petitioned the Court of Appeal seeking to quash the decision contained in the diplomatic note waiving his immunity; and to compel the Minister or the Secretary to the Ministry of Foreign Affairs to notify the US Government that he “continues to enjoy all the diplomatic privileges and immunities in terms of Vienna Convention in respect of acts performed by him in exercise of his functions as Ambassador”.

Mr Kariyawasam gave a sworn affidavit to the court stating he had issued the diplomatic note on instructions he received from the President of Sri Lanka (then Maithripala Sirisena). Justice P Padman Surasena was satisfied that it was the President’s decision and held the court had no jurisdiction to entertain Mr Wickramasooriya’s application. Justice A.L. Shiran Gooneratne agreed.

The Government shifts gears

Mr Wickramasooriya took the matter to the Supreme Court. In the meantime, he was indicted in the US. In September 2020, his lawyers filed a motion to the US District Court for the District of Columbia seeking to dismiss the indictment on diplomatic immunity grounds. They suddenly maintained that Sri Lanka had never waived the former ambassador’s immunity.

The motion reveals that Mr Kariyawasam had previously (on October 6, 2017) responded to a question from Mr Wickramasooriya’s attorney confirming he still had diplomatic immunity. It is evident, however, that discussions between the US and Sri Lankan Governments took place in the interim, leading to a waiver on President Sirisena’s instructions.

In January 2020, President Gotabaya Rajapaksa set up a commission to investigate potential political victimisation of certain public officers, etc, between January 2015 and November 2019. Mr Wickramasooriya was also named.

Meanwhile, Mr Wickramasooriya filed an information request asking the Presidential Secretariat whether it had any record of a decision by former President Sirisena between 27 September and 23 October 2017 to waive his diplomatic immunity. The Secretariat replied that, according to its records, there was no such decision and/or instruction issued by President Sirisena during that period.

On July 2, 2020, the Foreign Relations Ministry waded into the matter. On instructions from the President’s Office, Ravinatha Aryasinha, the new Secretary, issued a diplomatic note to the US Embassy in Colombo.

“Although the aforesaid note verbale appears to have been issued by the Ministry of Foreign Relations on the basis that such instructions have been issued by former President His Excellency Maithripala Sirisena, the Presidential Secretariat and Ministry of Foreign Relations has been able to verify that no records are available in both offices to prove that former President has issued such instructions,” it said.

Based on this, the Ministry was of the view that the said waiver was not legitimate and, hence, the relevant note verbale “is withdrawn”, it maintained.

The US State Department responded by a diplomatic note that Sri Lanka had “waived any immunity Mr Jaliya Chithran Wickramasooriya might otherwise enjoy with regard to the criminal proceeding pending in the United States District Court for the District of Colombia [sic]” and asserted that “a sending State cannot revoke a waiver of immunity once it has been given”.

The note added that “the US government relied on the Democratic Socialist Republic of Sri Lanka’s waiver and has taken steps consistent with the waiver”.

Note after note

In September 2020, the Sri Lankan Embassy in Washington, DC, sent a diplomatic note to the US State Department reiterating that the Sri Lanka Government’s position was that no waiver of Ambassador Wickramasuriya’s immunity ever occurred.

It said the relevant Sri Lankan authorities continued to hold the view that the note verbale was not valid and, therefore, diplomatic immunity of Mr Wickramasuriya had never been waived, “as due internal process has not been followed prior to issuing the said note”.

Hence the decision was taken at the “higher Government level” to withdraw it. It requested that the contents of the withdrawn note are “not used in any manner contrary to the position of the Government of Sri Lanka reflected therein”.

In November 2020, Admiral Jayanath Colombage, who replaced Mr Aryasinha as Foreign Ministry Secretary, issued yet another note. This time it said the Government of Sri Lanka “has not, at any time, properly waived the diplomatic immunity” of Mr Wickramasooriya.

The Foreign Ministry reiterated its request to avoid using its contents to subject the former ambassador “to the criminal, civil or administrative proceedings that relates to the exercise of his functions as Ambassador of Sri Lanka to the United States”.

The US did not accept these reversals of Government positions. Even on the question of immunity, prosecutors held that, as a former diplomat, Mr Wickramasooriya would only enjoy “residual immunity” from US criminal jurisdiction for acts performed in the exercise of his official functions.

“The defendant 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.”

And, it said, even if the court were to reach the question of whether the Government of Sri Lanka properly waived any immunity that the defendant might have enjoyed, there is no basis to conclude that the waiver was invalid.

SC throws out case

Meanwhile, the Supreme Court of Sri Lanka decided on Mr Wickramasooriya’s appeal against the Court of Appeal judgment on October 29, 2021.

Among other things, Justice Vijth K Malalgoda, PC, referred to an affidavit submitted to Court by Foreign Ministry Seretary Colombage stating that all his efforts to find any documentary proof “with regard to any decision that was communicated from the Presidential Secretariat to the Ministry of Foreign Affairs have failed”.

But Justice Malalgoda observed that Admiral Colombage had not taken up the position there was “no such decision” by the President on or around October 23, 2017, to withdraw the diplomatic immunity enjoyed by Mr Wickramasooriya with regard to the official acts committed by him during his tenure as ambassador to the US.

“However, the affidavit filed before the CA by the 2nd Respondent (Kariyawasam) who is said to have received such instruction and acted on the said instruction and communicated such instruction by note verbale dated 23 October 2017 was not rejected or denied by any authority before this Court,” he said.

Justice Malalgoda upheld the Court of Appeal decision and dismissed Mr Wickramasooriya’s petition with costs. Justices K.K. Wickremesinghe and Mahinda Samayawardhena agreed.

Back in the US, Mr Wickramasooriya finally pleaded guilty as his dreams of immunity died in separate courts across the seas. The waiver was upheld and, grace to his plea arrangement, Mr Wickramasooriya got two years of probation and US$ 5,000 fine.

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