Gotabhaya presidency and the trappings of American citizenship

• Mr Rajapaksa is facing at least two civil law suits in the United States
• If he gets elected as president, then it becomes a national problem, a concern for all of us

Whether the former strongman Defence Secretary and youngest of the Rajapaksa brothers, Gotabhaya could be the next president of Sri Lanka is now being narrowed down to a technicality of the procedure governing the renunciation of the American citizenship.   

The quarterly publication of the US Inland Revenue Service of ‘Individuals who have chosen to expatriate’ did not have the good name of Mr. Gotabhaya Rajapaksa.   

The list which was published last week contained the name of each individual losing United States citizenship with respect to whom the Secretary received information during the quarter ending June 30, 2019.   

Questions have now been asked whether the non-inclusion of Mr. Rajapaksa’s name in the list is a sign that the application for the renunciation of his American citizenship has been unsuccessful.   

In April, this year, Mr Rajapaksa handed in documents, including his American passport to the United States Embassy in Colombo and signed an oath of renunciation.   

However, concerns were raised by the Colombo literati as to whether the US State Department gives clearance to Mr. Rajapaksa who is a defendant of several civil damage litigations over his alleged complicity in human rights violations, including the command responsibility in the murder of the editor of the then Sunday Leader, Lasantha Wickrematunge.   

An application for voluntary renunciation of citizenship is subjected to the scrutiny by the Inland Revenue Services and other assorted departments before the issuance of the certificate of the loss of the nationality of the United State by the State Department.   

Then in July this year, what was purported to be the certificate of loss of American citizenship of Mr. Rajapaksa made rounds in social media, only to be revealed later that it was a poorly photo shopped work of a file photo from a Wikipedia page.   

Subsequently, in an inspired leak, certain newspapers reproduced what was described as the authentic certificate. It was signed by Philip J Vanhorn of the US State Department under the seal of Overseas Citizens Service Department and was issued on May 3, this year.   

If that certificate is true, it is game over for his critics back home.   

However, the local observers seem to hang on to a matter of technicality of not having his name in the quarterly publication of Individuals who have chosen to expatriate.   

However, that does not appear to be part of the administrative procedure in the voluntary renouncement of American citizenship as outlined in the Immigration and Nationality Act (INA) (8 U.S.C. 1481(a)(5)). That is the section of law governing the right of a United States citizen to renounce abroad his or her U.S. citizenship.   

Accordingly, a person wishing to renounce his or her U.S. citizenship must voluntarily and with intent to relinquish U.S. citizenship: a) appear in person before a U.S. consular or diplomatic officer, ( b) in a foreign country at a U.S. Embassy or Consulate; and ( c) sign an oath of renunciation.   

If Mr Rajapaksa has already received the certificate of the loss of citizenship of the United States - as he claims- his process of ‘expatriation’ is complete. And, he is eligible to contest at the presidential election.   

But, that does not mean he leaves behind the trappings of his previous American citizenship. The renunciation of the US citizenship does not free the individual from tax and military obligations, and more importantly, ‘possible prosecution for crimes which they may have committed or may commit in the future which violates United States law, or escape the repayment of financial obligations, including child support payments, previously incurred in the United States or incurred as United States citizens abroad.’   

Mr Rajapaksa is facing at least two civil lawsuits in the United States over his command responsibility in alleged rights violations during his tenure as the defence secretary. One lawsuit was filed by the South Africa based International Truth and Justice Project (ITJP), in partnership with the international law firm Hausfeld in the District Court of Central District of California on behalf of a Tamil torture survivor Roy Samathanam. Another lawsuit was filed by the daughter of the former editor of Sunday Leader, Lasantha Wickrematunge. Mr Rajapaksa was served notice on both cases by private investigators hired by the ITJP in the car park of the grocery chain, Trader Joe in the Californian city of Pasadena.   

The two lawsuits are unlikely to have a dent on Mr Rajapaksa’s popularity at home. The lawsuit by the Tiger-loving-Yasmin Sooka’s NGO, ITJP could even play into the hands of the Sinhala Buddhist hardline supporters of Mr. Rajapaksa.   

Also, there is an eleventh-hour hurry to speed up the legal process by the Attorney General’s Department, which has sat on a number of high profile court cases over the past five years. Though the new sense of urgency is commendable, it appears to be too little too late.   

The new Attorney General Dappula de Livera has ordered the IGP to speed up investigations into several high profile cases, including the murder Lasantha Wickrematunge, the death of Rugby player, Wasim Thajudeen and the killing of 17 aid workers in Muttur.   

But, the failure of the domestic institutions has already justified seeking justice abroad. The US courts will take their decision on empirical reasoning and not promises.   
Renunciation of American citizenship would not give immunity to Mr. Rajapaksa from potential legal action such as those taken by the petitioners of the two lawsuits.   

The question is what if an American court rules adversely on Mr. Rajapaksa? 

 
If Mr. Rajapaksa remains a private citizen, then it is his own problem. If he gets elected as the president of Sri Lanka or even gives a shot at it, then it becomes a national problem, a concern for all of us.   

It is not altogether new for an American judge to rule against a Head of the State. Earlier, the U.S. District Court for the District of Columbia found the Syrian government liable in the 2012 death of American journalist Marie Colvin and ordered it to pay $300 million in punitive damages.   

Such rulings may be only symbolic when it involves a rogue state. Collecting damages would also be a tall order.   

 However, it would not appear nice if an American court finds the future president of Sri Lanka guilty of rights abuses, and orders him to pay a hefty fine.   

 Some of the least salubrious states had war criminals as the heads of states and played the cat and mouse with the international organizations. Omar-al Bashir, the former Sudanese despot who was wanted by the International Criminal Court was visiting only the countries that assured him that he would not be handed over to The Hague.   

That is not something Sri Lanka should emulate!   

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