22 May, 2019

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Brigadier’s Conviction & GoSL Ineptitude

By Rajeewa Jayaweera –

Rajeewa Jayaweera

Brigadier Priyanka Fernando, the former Minister Counsellor – Defense of the Sri Lanka High Commission in London was recently convicted of threatening protestors and denied diplomatic immunity by the Chief Magistrate at the Magistrate’s Courts in Westminster.

Submissions for and against the withdrawal of the arrest warrant against Fernando were heard March 01.  An issue had arisen as to whether Fernando benefits from diplomatic immunity.  

Hearings had been held on March 13, August 8, and November 9, 2018, and January 21, 2019, previously. Neither the Defendant (Fernando) nor his legal counsel had been present on all previous occasions. It resulted in the issuance of the arrest warrant by a lay bench of Magistrates on January 21. It was withdrawn on January 22 and case relisted for hearing by the Chief Magistrate on February 01.

Four British nationals of Tamil origin had complained to Metropolitan Police of an incident on February 4, 2018, in front of the Sri Lanka High Commission in London while Independence Day celebrations were in progress inside the building. Fernando is said to have stepped outside and drawn his fingers across his throat on three occasions, in a cut-throat gesture, while looking towards the protesters demonstrating in front of the High Commission. 

Protestors were mostly members of Tamil diaspora and LTTE sympathizers and were carrying cutouts of Prabhakaran and Tamil Tiger flags with crossed rifle butts. They were chanting ‘Our Nation, Tamil Eelam,’ ‘Our Leader, Prabhakaran’ and other similar slogans. They were also seen desecrating the Sri Lankan national flag. 

The Prosecution, in their arguments on 01 March against the withdrawal of the arrest warrant had provided as background information; “On February 6, 2018, the Sri Lankan High Commission suspended the Defendant and announced that the authorities in Sri Lanka would initiate inquiries into the incident immediately (He was reinstated on 7 February 2018 but left the jurisdiction and his post soon after)” (para 9). 

“On 22 February 2018, the South Asia Department of the UK Foreign and Commonwealth Office (FCO) confirmed that the Government of Sri Lanka had ordered the Defendant to return to Colombo” (para 10).

The submissions claimed, (i) “The Defendant has failed to recognize the Court’s process.” The Prosecution has quoted a letter sent by the Sri Lanka High Commission dated October 28, 2018 stating;  “Due to defective service of document and diplomatic immunity enjoyed by Agents, the former Defense Attaché, Brigadier Priyanka Fernando will not appear on November 09th 2018 before the Westminster Court, and will not recognize the validity of any action taken by the Westminster Court pursuant to this case being called there, that in any way prejudices the interests of the Democratic Socialist of Sri Lanka.” (ii) “The Defendant does not enjoy diplomatic immunity.” Consequently, the Prosecution has claimed; “Once a diplomatic agent has left his post, he no longer enjoys diplomatic immunity for actions carried out in his private capacity. Secondly, there is no provision for service of documents to a diplomatic agent in customary international law. The rules governing service are those set out in domestic legislation in the relevant jurisdiction.”

The Prosecution further claimed, the Defendant was not entitled to diplomatic immunity since he had departed from the UK on April 18, 2018, was no longer listed in London Diplomat List 2019 of the Sri Lanka High Commission, Rt. Hon. Mark Field had confirmed GoSL had recalled him with immediate effect and letter dated October 28, 2018, from the Sri Lanka High Commission confirmed the Defendant no longer enjoyed diplomatic immunity by that date.

The Prosecution concluded, “As he is no longer a serving diplomat in the UK, he only enjoys immunity in respect of acts carried out in his official capacity. Making threats to protestors clearly falls outside of the responsibilities expected of a diplomatic agent as foreseen in the Vienna Convention.” 

Diplomatic Immunity of an Agent in respect of acts undertaken during his/her term of office, upon completion of the term of office is limited to acts in relation to the Agent’s official duties. It is commonly known as ‘Residual Immunity.’ 

Paras 33, 34, 38, and 39 of the Prosecution’s submission states; 

“The initial response of the Sri Lankan Government and of Members of Parliament in the UK was to express condemnation for the actions of the Defendant which were not befitting of a diplomatic agent.”

“A statement by the Sri Lankan Ministry of Foreign Affairs on February 6, 2018 said, Authorities in Sri Lanka have taken serious note of videos being circulated on social and web-based media of an alleged incident involving the Minister Counsellor (Defense) attached to the Sri Lanka High Commission in London behaving in an offensive manner.”

“The Defendant acted outside his official capacity when he made threats to the protestors, and as a result does not benefit from residual immunity for his actions.”

“The decision by the Sri Lankan government to withdraw the Defendant from his diplomatic post is a fact from which it can be inferred that his actions were not regarded as acceptable conduct as part of his official duties.”

The Prosecution has quoted extensively from case law related to Al-Malki vs. Reys in 2017. It refers to a London based Saudi Arabian diplomat and his wife. A Domestic Aide had accused them of racial discrimination and inhuman treatment heard on appeal after Al-Maliki and his wife had departed from the UK.

The Prosecution maintains that there are no grounds to reopen the conviction of January 21, 2019, and has invited the Court to re-issue the arrest warrant.

The FCO has issued a certificate confirming dates in which Fernando assumed and relinquished duties as a Diplomatic Agent in the UK together with a written submission from its legal counsel of  20 Essex Street Chambers, which states among other things;   

“In sum, a diplomatic agent’s immunity will come to an end once the agent’s functions are at an end, and he or she leaves the receiving State (or once a reasonable period to allow for departure has expired). This includes immunity from criminal jurisdiction under Article 31(1). However, a diplomatic agent retains what is generally referred to as a ‘residual immunity’ in the receiving State for any ”acts performed … in the exercise of his functions as a member of the mission”. In other words, a diplomatic agent will indefinitely enjoy immunity for any act carried out while holding his or her diplomatic post, as long as it is a qualifying act. This is for the reason that such an act is to be treated as an act of the sending State over which the receiving State’s courts cannot properly exercise jurisdiction.”

Counsel for the FCO has urged the Court to consider the factors (i) Specific functions of the Defense Attaché. (ii) Circumstances in which the act was carried out (location, time, Defendant’s occupation at the time and any relevant directions to the Defendant/the mission from the sending state, etc.). (iii) Any representations made by the sending State as to the nature of the Defendant’s act and the Defendant’s functions.

Counsel from Goldsmith Chambers, representing GoSL and by extension, the Defendant, in their skeleton arguments, have highlighted the non-establishment of the Defendant’s diplomatic status before the commencement of legal proceedings. Having submitted Fernando’s Job Description with a view to establishing he had been present in full military uniform and he was involved in work related to his assigned duties, more time has been sought to obtain relevant documentation necessary for counter arguments.     

The Chief Magistrate, in her judgment has concluded; “I find it was not part of Brigadier Fernando’s job description to make the alleged cut-throat gestures on the three occasions, it could not be any part of the mission’s function, and therefore the Minister Counsellor’s behavior is not given immunity by Article 39(2) of the Vienna Convention.  The Brigadier cannot call on the residual immunity that he would have been able to, had the acts been performed in the exercise of his functions.” 

The case has been listed for a further hearing on March 15 when various documents requested by Defense Counsel will be submitted, if made available. However, based on judgment passed on March 01, restoration of residual immunity for Fernando appears slim.

The Brigadier’s gesture being inappropriate is a given. However, the government’s ill-conceived kneejerk reaction, knowing full well, the propaganda war being waged by Tamil diaspora sympathetic to LTTE is unpardonable. 

On February 6, 2018, the Prime Minister, through the Foreign Ministry instructed the High Commissioner in London to suspend Fernando from his duties. The statement by the Foreign Ministry on February 6 confirmed the suspension order. Despite the suspension order being rescinded by President Sirisena on February 7, the case for full or residual immunity evaporated the moment the Foreign Ministry statement was out in the public domain. In doing so, it has burned all its bridges as the statement clearly spells out, the Brigadiers acted on his own.

The statement marked as Tab 7 has been annexed by the Prosecution in their submissions.

Any self-respecting nation would have consulted legal experts and defended the Brigadier’s actions publicly while dealing with him internally for his inappropriate conduct. 

In the years gone by, intelligent leaders with an abundance of commonsense sought the advice of professionals, namely seasoned career diplomats and lawyers in handling such delicate matters. However, since 1977, Sri Lanka has been gifted with leaders known to disregard professional advice in favor of their own ill thought out and amateurish attempts in the conduct of diplomacy, often resulting in serious consequences detrimental to the interests of the country. The years when Foreign Affairs was spearheaded by veteran Foreign Minister Lakshman Kadirgamar was an exception. 

Tragically, there is no evidence of any sound advice having been offered to decision makers by the head of the Foreign Service at the time and his senior staffers. The role played (or the lack of it) by the then High Commissioner in London, a businesswoman and political appointee with connections to high places and no experience in such matters is best left unsaid. 

The probable outcome would be the imposition of a fine payable by the Brigadier. GoSL will have the option of appealing the decision in the Crown Court.

Come what may, GoSL made a mess of it by its ill thought out reactions on February 6, 2018.  

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Latest comments

  • 9
    1

    CT

    Here we go again.
    Where is lord Naseby?
    Can our colonial masters come to the rescue of this island devoid of professionals, seasoned career diplomats and lawyers?

    How about Dayan, Chris Nonis, Jaliya Wickramasuriya, ……. ?

    • 3
      4

      Native, they are all political appointees, not career diplomats. How come a ‘know all’ like you did not now that???

    • 6
      1

      Native Vedda

      Neither Lord Naseby (Latter Day Patron Saint of Sri Lanka), nor all the kings horses and all the kings men could put together the lost reputation of an undiplomatic boor.
      The question remains: How did this (officer?) get the job?

      • 6
        0

        Spring Koha

        Why didn’t you consider joining the armed forces back in your younger days?

        During your long fruitful life you would have met many diplomats, career or otherwise, have you ever noticed so many unqualified, unsophisticated, undiplomatic, uncivilised, unscrupulous, ………………. b***s carriers being sent to represent this island?

        If I am not mistaken Rajeewa Jayaweera’s father was a diplomat and he was known to have forged a close relation with Kamaraj the late Chief minister of Tamil Nadu. He was a man of principle. He also challenged the authority his superior on a point of principle back in Ceylon (Sri Lanka).

        If true could you let us know the background to the story.

  • 6
    0

    Yet another case of our supremely inefficient Foreign Ministry shooting itself in the foot.

  • 12
    2

    Rajeewa Jayaweera, you are a well known racist. If western powers set out to charge SL of war crimes you will cry foul and say we should not listen to western countries. But when one hoodlum in military uniform who happens to be an official of the GOSL threatens protesters with a throat slashing sign and charged by the local government, you will try to bring the Geneva convention to protect him with the talk of diplomatic immunity. The protesters are protesters, but someone in a military uniform and on official business must know how to behave, not do criminal things. So tough luck for you, this rascal criminal must be charged!

    • 2
      6

      Ohhh, Stupid Tamil got scared. You people did not like to die for your homeland.

      • 5
        1

        JD, you are a clown. I got scared many decades ago because your army had the guns and I had nothing. But you would never be able to kill me!!!! If you tried these pranks in Canada, you will get your stanking arse whooped.

  • 9
    1

    The central fact missing from all this “discourse”is that the behaviour of this man bearing high military rank was demonstrative of an arrogance and lack of professionalism that is mind-boggling. Unfortunately, that kind of conduct appears typical of those jumped-up nationalists and their masters that has become the Sri Lankan “reality.”
    Whatever became of dignified behaviour and ignoring the boorish conduct of LTTE supporters rather than playing into their hands in this manner?
    This certainly would have sat well with an Idi Amin-type regime, not with the dignity that our governments and their senior functionaries displayed prior to JRJ and the return of the Bandaranaikes!

    • 3
      10

      Mr van der Poorten
      *
      By stating, ‘Brigadier’s inappropriate behavior is a given’ and ‘Any self-respecting nation would have consulted legal experts and defended the Brigadier’s action publicly while dealing with him internally for his inappropriate conduct’, I have clearly outlined my views on his conduct.
      *
      There are millions of diplomats, the world over. They too are human and fallible and make mistakes. The Brigadier was not the first.
      *
      How many cases do you know of governments lifting the diplomatic immunity of their diplomatic officers for them to be prosecuted by receiving states for misdemeanors including murder?
      *
      I know of none. Do enlighten me if you are aware.
      *
      That is the gist of my opinion piece.

      • 7
        2

        Rajeewa Jayaweera

        “There are millions of diplomats, the world over. They too are human and fallible and make mistakes.
        The Brigadier was not the first.”

        Not in our name.
        It is for other countries to deal with their own state functionaries including their diplomats.
        It is not a good defense.
        Two wrongs do not make it right.

        Every time anything goes horribly wrong for this island, their only defense is comparing their behaviour with other countries and satisfy themselves with the justification. How long you little islanders are going to depend on other country’s behaviour to conduct your own affairs?

        American sent men to moon and returned them alive. That was in 1969, fifty years ago. Can you give us one example of this little islander’s inspiring achievement?
        Oh the first female prime minister of the world perhaps.

      • 6
        2

        Dear Rajeewa, you are distorting facts due to your anti-Tamil bigotry. You have stated that four British national of Tamil origin had made the complaint, which is factually wrong as one of them is a Sinhalese. Secondly do you expect the British courts to be have like the kangaroo courts of Sri Lanka which is institutionally racist. For all purposes there has been a crime committed in British soil and that comes under jurisdiction of British courts. They have made the correct decision to convict the offender as he has done something which is not within the purview of his duties for which he has diplomatic immunity. The fault for dragging this case to courts is due to President and no one else. The then High Commissioner correctly suspended the offender form his duties, following which the government should have immediately recalled him. Instead of that President re-instated the culprit causing annoyance to even moderate Tamils. It is only when British government requested that he be recalled, if not they will declare him persona non grata and expel him, that Sri Lanka recalled him to avoid ignominy. Naturally Tamils had to seek legal remedy for redressing the injustice. Sri Lanka government was cocky that nothing will come out from this case and refrained from defending the accused in courts. It is only when courts issued an arrest warrant for the criminal that SL government woke up. Unfortunately Sinhalese cannot manipulate British courts like what they do in Sri Lanka to pass racist judgement on Tamils. Where is this talk of truth and reconciliation if you cannot accept the crime done by an agent of the government, tender an apology to Tamils and close the matter.

      • 4
        1

        Rajeewa,
        There is no doubt that you are a racist. Not all the diplomats behave like uncivilised manner in which your diplomat. It is a murder threat by a Mahinda coolie. This is the culture you are trying to teacj for future generations.

      • 3
        5

        While I agree that a well-trained senior officer of a uniformed service must know to control his emotions as some would say, what is even more emphatic is the lack of justice and fair-play on the part of the U.K government which allowed these protesters to gather outside the embassy on the very day we celebrated “independence” from these very same “masters”, displaying their tiger flags. How is that in the very best traditions of British Justice??!!

        What if the Sri Lanka Government allowed an Irish Republican group to carry placards outside the British High Commission on the Queen’s Birthday? Or what happened to the Iranian diplomat who shot dead a U.K police officer from the Iranian Embassy some years ago?!

        I guess its all typical bullying of a helpless little nation in order to win votes from the diaspora.

      • 0
        0

        Rajeewa Jayaweera:
        You have chosen not to deal with with the central issue: the total inappropriateness of this man’s conduct, given his designation and position and the circumstances.
        Yes, one can trot out dozens of instances of stupid and thuggish behaviour, inclusive of the late Mr. Idi Amin, but, simply put: was/is that kind of conduct acceptable from those designated as professional diplomats? “They did it first” hardly cuts it.

    • 3
      1

      Emil van der Poorten

      “The central fact missing from all this “discourse”is that the behaviour of this man bearing high military rank was demonstrative of an arrogance and lack of professionalism that is mind-boggling. “

      When young army officers are being asked by their senior officers to carry their wife’s shopping bags and hold umbrella over their head to protect them from rain or shine what else could the young officers learn?

      I am not sure if some of the cadet officers being asked to chop firewood, scrub floor, clean drainage, ………………… at senior officers home.

      This is all about human dignity.

      Rajeewa Jayaweera FYI:

      Dignity
      The state or quality of being worthy of honour or respect.
      A composed or serious manner or style.
      The importance and value that a person has, that makes other people respect them or makes them respect themselves

    • 1
      2

      This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2

  • 6
    1

    “Any self-respecting nation would have consulted legal experts and defended the Brigadier’s actions publicly while dealing with him internally for his inappropriate conduct. “
    Author accepts it is an inappropriate conduct. But only wants to hide the racial conduct of the Army personnel from international audience and encourage genocidal attitudes actions of the past in future also

    • 7
      0

      For years we shrugged our shoulders at the despicable behaviour of our ‘fighting’ men, at home and abroad. Now it is becoming clear that even our officers our no better. What other instances of bad behaviour, and worse, will creep out of the rotting woodwork? Only a truly impartial investigation will unearth that. But don’t hold your breath folks.

  • 4
    1

    Diplomats are watched by the host and media. Wrong steps will tarnish the reputation of the diplomat and worse the country they represent.
    Reward posting of diplomats is common. A former Lankan Ambassador to the US and another to Russia have done irreparable damage to SL.
    Brig Priyankara Fernando was rewarded with the coveted posting to the UK. His throat slitting gesture might well be interpreted as “I have done this to your kith and kin. I will continue this”. The Lankan Army Commander Lieutenant General Senanayake said “There will be no inquiry”. Both did not realise the damage to brand ‘SL’.
    .
    Rajeewa does not see anything wrong in the throat slitting gesture. He calls the GoSL follow-up actions inept.

  • 6
    1

    Rajeewa Jayaweera. Unlike the Sri Lanka courts during a particular period, the UK courts cannot be influenced or interfered with. So no Sri Lankan government could have altered its judgement. I am sure you know that. Do not waste your time apportioning blame on anyone.

  • 3
    0

    Best defense would have been that ‘his gesture meant that he wanted to cut his throat and commit suicide as he could not bear to see Srilanka’s flag being trampled’. it was not his intention to threaten the demonstrators.. But again, attempted suicide is also an offence which has no diplomatic immunity either.

  • 0
    10

    Some commentators have called Rajeewa Jayaweera a racist. When every other Tamil is a racist and every other Muslim is a fundamentalist what is so strange about a couple of Sinhalese being racist even if Rajeewa is one?

    Soma

    • 6
      0

      Soma one demanding his rights is not racist, in which case Gandhi, Mandela and Martin Luther King are all racists. Tamils are demanding their rights of equality against discrimination, defending the right to their life and property, to live with dignity and safety, to rule their lands like how their ancestors did. Therefore any Tamil who articulates his cannot be called a racist, just because bigoted individuals like want it that way. In contrast Sinhalese who are denying justice to Tamils as well as covering up crimes committed against Tamils are justice. Due to this Sinhalese who are articulating such views are the true racists, even if people like you are not willing to accept. Rajeewa wrote this piece to protect a criminal who has stepped out of his domain and threatened to cause harm to peaceful protesters. It is for the British government to decide whether waving of LTTE flag or shouting praise of Prabaharan is an offence and not a puny fellow like Rajeewa. The protest is because of the continued injustice being unleashed on Tamils in Sri Lanka by Sinhala racist government. UK is a civilized country unlike Sri Lanka where peaceful protest for a cause and propaganda war being waged by diaspora sympathetic to LTTE will be permitted and will not be curtailed because of posturings by Sinhala racists .

      • 0
        3

        Gnana,”uk is a civilised country”. Is that because it granted asylum to rouges like yourself? They are so civilised they are still looking for the WMDs they used as an excuse to invade Iraq. Why is one of the greatest criminals of the 20th century Tony Blair still not prosecuted? How come the mighty, just and fair British judicial system is silent? Why no universal jurisdiction applied to the likes of George W Bush?

        • 1
          0

          Eekel Guy, I was granted immigration to UK because of my qualification and the shortage of medical personnel. In fact I am qualified for asylum because I was threatened by security forces for standing up to them and refusing to falsify reports to cover up their murder of non combatant Tamils.

      • 0
        4

        Dr. G.S.
        What is puzzling is the desire of +50% Tamils (all Tamil speaking people irrespective of their religion caste or the date of arrival scattered across the island) to continue living in Sinhala majority areas under such inhumane oppression even when an option is proposed to create a separate Homeland for them.
        Any explanation?

        Soma

        • 1
          1

          I do not want to waste time on your ‘puzzle’. but to say that there are more Muslims in India than in Pakistan even after the division

          • 0
            0

            Mr Anaga
            They prefer to be in India than in Pakistan because there is no discrimination at all similar to the situation of Tamils in the Sinhala majority South.
            A Bangladeshi given the option between Pakistan and India would ALWAYS choose India – this is the factual situation. Not a single Tamil family presently living in the Sinhala majority South will ever voluntarily move into the Tamil Homeland. Therefore a formal agreement will be required for relocation.

            Soma
            (Nothing terrifies a Tamil than the thought of living in a Tamil only enclave)

  • 0
    2

    I really do not think the brigadier meant anything more than “stop it” or “enough” with the gesture. He did not approach or seek out the Tamils, but was reacting to several hours of provocations by the Tamils. There is video evidence of the Tamils behaving very threateningly and shouting provocative slogans and insulting Srilanka and the Sinhalese people. There is one Tamil who is marching aggressively towards the Brigadier and a couple of others who were walking into the embassy area, and the Tamil is almost pushing his camera-phone in the face of the Brigadier. I mean why isn’t the government of Srilanka or UK pressing charges against those Tamils who were behaving in such an aggressive and provocative manner? The kind of behaviour these Tamils are showing should at least amount to “disruptive public behaviour”. It is evident that they were trying to disrupt the independence day celebrations. I think the government should take up the issue with British authorities.

    • 1
      0

      Punchi Point
      Punchi Brain.
      Punchi Willi

      “I really do not think the brigadier meant anything more than “stop it” or “enough” with the gesture.”

      Actually it appears he was scratching his b***s which must have stuck in his throat.

  • 1
    0

    Rajeewa you not only went on writing but agreed that you are a racist. Thank You for coming out of your closet . At least CT readers will be aware of this from now. Lankans never change regardless of education and world exposure.

  • 1
    0

    From your comment it is clear that if you become a diplomat you will DO THE SAME from the balconies of our High Commission. What a patriot you are???????

  • 5
    0

    Rajeewa,

    Any self-respecting nation would have consulted legal experts and defended the Brigadier’s actions publicly while dealing with him internally for his inappropriate conduct.

    In the years gone by, intelligent leaders with an abundance of commonsense sought the advice of professionals, namely seasoned career diplomats and lawyers in handling such delicate matters. However, since 1977, Sri Lanka has been gifted with leaders known to disregard professional advice in favor of their own ill thought out and amateurish attempts in the conduct of diplomacy, often resulting in serious consequences detrimental to the interests of the country. The years when Foreign Affairs was spearheaded by veteran Foreign Minister Lakshman Kadirgamar was an exception.

    *** I am astounded by the above. I dont know what you do for a living but from the above quote I see that you are an iliterate. If you claim Sinhala Lanka is a civilised country you dont defend a man who is a serving officer if he is guilty of misconduct that brings the Nations intergrity into question. There are no ifs and buts. .
    It is obvious from the second paragraph why Sinhala Lanha is trying to rewrite history by reneging on the promise she gave to the UN to prosecute those who are guilt of War Crimes. Sinhala Lankas promise is not worth a penny. I am dismayed that all 22 million racists take the same view.

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