In a stunning verdict, the Supreme Court of Sri Lanka last week dismissed an appeal by former ambassador Jaliya Wickremasuriya who filed legal action to have his diplomatic immunity restored, to prevent his prosecution on charges of money laundering and wire fraud in the United States.
The dismissal leaves Wickremasuriya with no choice but to face criminal charges and possibly a prison term in the United States after he was accused of major financial fraud by US law enforcement authorities and prosecutors during his time as Sri Lanka’s Ambassador in Washington, DC.
The shock determination was delivered by Justice Vijitha Malalgoda, even after a team of high-profile criminal lawyers repeatedly reminded the Bench hearing the case that the orders to restore Wickremasuriya’s diplomatic immunity and help him to escape criminal prosecution in the US came from no less than President Gotabaya Rajapaksa himself.
In January 2019, Wickremasuriya who is first cousin to President Gotabaya and Prime Minister Mahinda, was indicted by the US District Court in the District of Columbia (Washington DC) on five counts, specifically two counts of money-laundering, two counts of wire fraud and one count of visa fraud violation by making false declarations in official US Government documentation.
Wickramasuriya is a US citizen who was first appointed as the Counsel General in Los Angeles in 2007 by President Mahinda Rajapaksa. Later he was made Ambassador to the US in 2008 under his cousin’s administration. A tea trader without previous diplomatic experience, Wickramasuriya is accused of swindling US $ 332,000 via shell companies according to US law enforcement.
The US case mirrored a similar criminal probe by Sri Lanka’s now defunct Financial Crimes Investigation Division (FCID). Wickremasuriya was later arrested under the Offences Against Public Property Act. All criminal proceedings in Sri Lanka concerning Wickramasuriya were dropped after his cousin Gotabaya became the President in November 2019.
However, Wickramasuriya’s corruption cases in the US, where he remains a citizen have proceeded unhindered. This was made possible by the Ministry of Foreign Affairs which in 2017 waived Wickremasuriya’s diplomatic immunity on account that the former Ambassador had defrauded Sri Lankan state funds during his tenure in DC.
In his petition before the Supreme Court, Wickremsuriya claimed that his actions in the US should be covered by diplomatic immunity, which would mean he would not be subject to criminal proceedings in the host country – the United States. Wickremasuriya remains an American citizen, making it possible for US authorities to prosecute him even on those terms, however the Sri Lankan Government decision to waive immunity for the fraudster Ambassador made the legal proceedings simpler. In October 2017, the US Embassy in Colombo was officially notified that the GOSL was waiving diplomatic immunity for its former ambassador, allowing the US investigation to proceed. Secretary to the Ministry of Foreign Affairs, Prasad Kariyawasam communicated the Government decision to the US Embassy in Colombo.
Undeterred, Wickremasuriya and his band of expensive lawyers pursued the case for diplomatic immunity to be restored in the Court of Appeal. The Court of Appeal dismissed his petition without even issuing notice on respondents in March 2018. Soon afterwards, Wickremasuriya’s lawyers took the case to Supreme Court.
Following Wickremasuriya’s absolution within the highly corrupt Sri Lankan legal system after his first cousin Gotabaya assumed office as President 2019, there was a renewed effort on the part of the Government to get the US authorities to drop the case against the former Sri Lankan ambassador. Wickremasuriya’s efforts to have his immunity restored were pursued with new vigour following the election of Gotabaya Rajapaksa.
The crusade began with Secretary to President Gotabaya Rajapaksa Dr PB Jayasundera firing off a letter to then Foreign Secretary Ravinatha Aryasinha on 2 July 2020 instructing him to write to the US Embassy in Colombo, demanding the restoration of diplomatic immunity for Jaliya Wickremasuriya.
[See letter from Aryasinha referencing the Dr Jayasundera’s instructions]
In his diplomatic note to the US Embassy on Jayasundera’s instructions, Aryasinha claimed the decision to waive immunity for Wickremesuriya was made without the approval of then President Maithripala Sirisena. His note to the Embassy of the United States in Colombo added that there were no records at the Foreign Ministry or the Presidential Secretariat to the effect that the decision to waive immunity had been made by President Sirisena.
[See Diplomatic Note to the US Embassy in Colombo issued by former Foreign Secretary Ravinatha Aryasinha]
The Supreme Court filings make it clear that current Foreign Secretary Admiral Jayanath Colambage had reiterated this claim in Jaliya Wickremasuriya’s defence.
The US Embassy refused the request in no uncertain terms, saying that there was no provision in the Vienna Convention on Diplomatic Relations that allowed for diplomatic immunity to be restored once it has been waived by a State.
[See response from US Embassy in Colombo to Aryasinha’s request]
In short, the Embassy said the internal workings of the Sri Lankan Government under President Sirisena were immaterial – a diplomatic note from the Ministry of Foreign Affairs was a valid communication from the Government of Sri Lanka.
Now, in his judgement Justice Malalgoda dismisses Wickremasuriya’s claim to diplomatic immunity, noting that Foreign Secretary Aryasinha, who sent the Diplomatic Note to the US embassy in July 2020, stating that there were no records at his ministry or the presidential secretariat, had not explained the circumstances under which a search had been carried out, and failed to inform court about whether he informed his predecessor (Kariyawasam) who had provided an affidavit to the contrary.
Justice Malalgoda’s judgment states that former Foreign Secretary Kariyawasam, the second respondent cited by Wickremasuriya and his lawyers in his Supreme Court appeal, had given an affidavit to court that then President Sirisena had instructed him to inform the US embassy in Colombo of the waiver.
Justice Malalgoda’s judgment makes note of the fact that while current Foreign Secretary Jayanath Colambage had submitted to court that he had failed to find evidence of the President’s decision to waive immunity for Wickremasuriya, the Admiral had not taken the position that no such decision had been made on or around 23 October 2017 by then President Sirisena to waive immunity. In short, the Judgment makes it clear that failure to find evidence of communication of the President’s decision is not evidence that such a decision was never made.
The Court disregarded statements and dismissed Wickremasuriya’s appeal with costs fixed at Rs 50,000.
For full judgment delivered against Jaliya Wickremasuriya by the Supreme Court of Sri Lanka click here.