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 It was withdrawn on January 22 and case relisted for hearing by the Chief Magistrate on February 01.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 09^th 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.