Jayaraj Palihawadana, until recently the UK representative of the political party of the former Sri Lankan President, Gotabaya Rajapaksa, has apologised unreservedly in court to South African human rights lawyer and activist, Yasmin Sooka, for making false statements against her. Sooka initiated a data protection claim in the UK under the Data Protection Act 2018, challenging the publication of inaccurate personal information detrimental to her reputation. Jayaraj Palihawadana published a report which he sent it to 47 diplomatic missions in Geneva in 2021 falsely claiming that Sooka was biased in favour of a proscribed terrorist group.
In her witness statement to the High Court King’s Bench Division, Sooka said: “Naturally these allegations are completely false and appear to be a calculated attempt to discredit me in my work as a human rights defender in Sri Lanka. The Court will probably be aware that it is well-worn tactic of repressive regimes around the world to denounce human rights defenders as terrorists, or supporters of terrorists, smearing them by association.”
A solicitor himself, Palihawadana failed to delete all the offending remarks or apologise at the outset, and instead attempted to file a counterclaim against Sooka, which the court dismissed. Eventually he agreed not only to pay substantial legal costs and compensation to Sooka but also agreed to retract his comments and publish an apology online in English and Sinhala. Additionally, as the defendant, Palihawadana agreed to make a Statement in Open Court today which said: “The Defendant unconditionally retracts and apologises unreservedly for the aforementioned untrue allegations made against the Claimant in the Reports.To indicate the sincerity of this apology, the Defendant has agreed to pay the Claimant a substantial sum to compensate her for distress and harm to her reputation arising from the Reports. The Defendant has also agreed to bear the Claimant’s reasonable costs.”
Under the terms of the judgement, Palihawadana agreed to publish on his website a full apology.
New Legal Precedent
Sooka’s legal team also established an important precedent by gaining permission for the first time from the UK High Court to make a Statement in Open Court in a Data Protection case.
“This brings to an end a long-running debate among practitioners about whether Statements in Open Court are available for other causes of action than libel, slander, malicious falsehood and misuse of private or confidential information,” said Sooka’s counsel, Guy Vassall-Adams KC.
While the precedent will have implications for future data protection cases, the legal team hope the wider value will be to support human rights activists against repeated onslaughts.
“We are delighted to have upheld the reputation of our client against these sort of slanders that so many human rights activists around the world have thrown at them, attempting to silence them and prevent them from speaking the truth. It’s important that this court process acts as a deterrent and that’s why the financial penalties help drive home the point,” said Daniel Machover of Hickman and Rose, the solicitors for Sooka.
Yasmin Sooka says she is in discussions about establishing a scholarship fund for the children of political prisoners and families of the disappeared in Sri Lanka with her compensation money when she receives it.
Yasmin Sooka is a well known international human rights lawyer and transitional justice expert who ran the Foundation for Human Rights in South Africa for nineteen years. She served on the South African Truth and Reconciliation Commission for eight years, the Sierra Leone Truth Commission and the UN Independent Review Panel for Central African Republic (CAR) in 2015 looking into Allegations of Sexual Abuse by Foreign Military Forces in the Central African Republic. In 2010, she was appointed by the UN Secretary-General to serve as a member of the three-member Panel of Experts advising the UN Secretary-General on accountability for war crimes committed during the final stages of the war in Sri Lanka (‘the Panel of Experts’). For the last six years she has headed the UN Commission on Human Rights in South Sudan.
The International Truth and Justice Project which she heads has focused on the collection and preservation of evidence pertaining to the final phase of Sri Lanka’s civil war in 2008-9 and post-war torture and sexual violence. It holds one of the most important archives of Sri Lankan testimony covering the last decade (400 case files) meticulously assembled by international human rights investigators, prosecutors and barristers who specialise in sexual violence documentation who have worked in international tribunals and courts. In 2017 the ITJP brought a series of universal jurisdiction cases in Latin America against a Sri Lankan General who was Ambassador there, Jagath Jayasuriya. In 2019 the ITJP assisted eleven torture victims to file a case against Gotabaya Rajapaksa in California under the Torture Victims Protection Act. In 2022, it sent a criminal complaint against Mr Rajapaksa to the Attorney General of Singapore after he fled there briefly, escaping anti-government protests in Sri Lanka calling for his removal as President.
Online apology issued by Palihawadana:
“On 5 January 2021 we published a report entitled “Report of the Post-Conflict Accountability and Reconciliation in Sri Lanka”, (“the Report”). The Report was sent to the delegations of the 47 member states of the UN Human Rights Council in the run up to its 46th session in Geneva and published on this Facebook page and a Canadian website. This Report included an allegation that Yasmin Sooka and the organisation of which she is a director, the International Truth and Justice Project, support the Tamil Tigers terrorist group.
We accept this allegation is completely unfounded and ought never to have been published. We apologise unreservedly to Ms Sooka for the publication of this allegation and the distress that it caused her, and have agreed to pay her a substantial sum in damages and her legal costs.”