14 July 2022 01:57 am Views - 27611
The Sri Lankan government demanded that the US grant Wickramasuriya diplomatic immunity on spurious technical grounds without producing any evidence
The former ambassador’s confession laid waste to the several attempts by the Rajapaksa regime to protect him from punishment and cast a dark shadow over this government’s persecution of the FCID officers who had investigated his crimes and facilitate the American prosecution of Wickramasuriya
US authorities commenced a detailed criminal investigation against Wickramasuriya with two counts of wire fraud, two counts of money laundering and one count of visa fraud via shell companies while serving as the Ambassador in violation of the US anti-money laundering and wire fraud laws
Wickramasuriya was accused of falsely inflating the purchase price of the new Sri Lankan Embassy in Washington DC in 2013, by approximately US $ 332,000 violating US laws
The former Diplomat was indicted for pocketing US $ 322,027.35 out of US $ 6.6 million that was deposited to the Escrow account maintained by the Sri Lankan Embassy, to purchase a building to house the Sri Lankan Embassy at No: 3025, Whitehaven Street, Washington DC 20008.
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Jaliya Wickramasuriya |
Through a series of diplomatic notes seen by Daily Mirror that were issued by both the Foreign Ministry in Colombo and through the Sri Lankan High Commission in Washington D.C., the Sri Lankan government demanded that the US grant Wickramasuriya diplomatic immunity on spurious technical grounds without producing any evidence. Wickramasuriya himself made the same argument before the Sri Lankan Supreme Court with the Attorney General and Foreign Ministry also defending him before the local courts.
However, even after causing unprecedented severe diplomatic embarrassment in our relations with the United States after a series of firm rebukes by the US Embassy in Colombo, the plan backfired as both the Supreme Court in Sri Lanka and the US Courts rejected the attempts to confer immunity on Wickramasuriya, who also holds a Green Card in the United States.
The President’s cousin thereafter pleaded guilty in American courts and made a detailed sworn admission to the court of the crimes he was charged with, including specific details of how he stole Sri Lankan public funds to the tune of over Rs 110 million, what bank accounts he used and how he found ways to take loans and repay the money after he had gotten caught. The former ambassador’s confession laid waste to the several attempts by the Rajapaksa regime to protect him from punishment and cast a dark shadow over this government’s persecution of the FCID officers who had investigated his crimes and facilitate the American prosecution of Wickramasuriya.
Wickramasuriya’s Sentencing is now set for July 20, 2022, at 10 a.m. in Courtroom 9 (In Person) before Justice Tanya S. Chutkan. Sentencing Memoranda from the parties are due by July 13, 2022. Defendant Wickramasuriya remains on Personal Recognizance Bond.
US authorities commenced a detailed criminal investigation against Wickramasuriya with two counts of wire fraud, two counts of money laundering and one count of visa fraud via shell companies while serving as the Ambassador in violation of the US anti-money laundering and wire fraud laws.
Wickramasuriya was accused of falsely inflating the purchase price of the new Sri Lankan Embassy in Washington DC in 2013, by approximately US $ 332,000 violating US laws. It has revealed how Wickramasuriya forged an ‘addendum’ to the sales agreement that falsely claimed the embezzled money was paid as commissions to the real estate agents of the Embassy and the seller of the property.
As Wickramasuriya has committed a serious offence violating US laws, the US Government had requested the Foreign Ministry to re-call Ambassador Wickramasuriya immediately. He had to relinquish his duties on April 15, 2014.
Considering these facts, on October 20, 2017, the US State Department sent a sensitive Diplomatic Note No: 756, to the US Embassy in Colombo under the caption: ‘Immunity Waiver Request for Jaliya Wickramasuriya to facilitate prosecution by the US Attorney’s Office in Washington DC’. This note was to be delivered to the host government (Sri Lanka) officials.
The Daily Mirror is in possession of copies of all corresponding documents exchanged between the Foreign Ministry and the State Department USA from 2017 to 2021, regarding Wickramasuriya’s immunity that prevented the US authorities to take legal action against him. These documents clearly show how Wickramasuriya’s immunity was waived off in 2017 at the request of the US State Department and how the Sri Lankan Foreign Ministry in 2020, was spending a considerable amount of its time making requests after requests to the US State Department to withdraw the criminal prosecution against Wickramasuriya, in the United States.
The sensitive diplomatic note sent by the US State Department, dated October 20, 2017, to the US Embassy in Colombo states, ‘The Sri Lankan Police Financial Crimes Investigations Division arrested former Ambassador of Sri Lanka to the USA, Jaliya Wickramasuriya on November 16, 2016, for misappropriation of funds in the course of the purchase of a building for the Sri Lankan Embassy in Washington DC, during his tenure there. He was released on bail on March 17, 2017, and subsequently travelled for medical treatment to the US, where he presently remains. US Investigators have questioned Wickramasuriya in connection with the alleged misappropriation. The attached immunity waiver request is to facilitate prosecution by the US Attorney’s Office in Washington DC.
‘The Department requests Embassy Colombo to deliver the attached request as a diplomatic note to appropriate host government officials at the earliest opportunity. Please slug responses to Jason Evans in SCA/NBB’.
On October 23, 2017, the US Embassy in Colombo wrote back to the State Department that the diplomatic note was delivered to Mahishini Colonne, Director General for the US and UN Affairs at the Sri Lankan Ministry of Foreign Affairs.
Following the highly sensitive request made by the US, the Ministry of Foreign Affairs on the same day, has sent a diplomatic note to the US Embassy in Colombo, giving an assurance to waive off the immunity Wickramasuriya enjoyed to assist their ongoing investigations.
The note states, ‘The Ministry of Foreign Affairs of the Democratic Socialist Republic of Sri Lanka presents its compliments to the Embassy of the USA and has the honour to refer to the latter’s note Verbale No: 756 dated October 23, 2017, pertaining to the investigations of Mr. Jaliya Chitran Wickramasuriya, presently pending in the United States District Court for the District of Colombia.
‘The Ministry of Foreign Affairs wishes to assure the assistance of the Government of the Democratic Socialist Republic of Sri Lanka, with the ongoing investigations of Mr. Wickramasuriya and accordingly waive off any immunity he enjoys with regard to such investigations, including but not limited to testimonial immunity and immunity from the criminal administrative and civil jurisdiction of the United States.
‘The Ministry of Foreign Affairs of the Democratic Socialist Republic of Sri Lanka avails itself of this opportunity to renew to the Embassy of the USA the assurances of its highest consideration’.
The US Embassy in Colombo on October 24, 2017, has conveyed Sri Lanka’s above stance to the State Department Washington DC which states, ‘The Sri Lankan Ministry of Foreign Affairs (MFA), in which the MFA agrees to waive Mr. Jaliya Wickramasuriya’s immunity in regard to the investigations presently pending in the United States District Court of Columbia, including but not limited to testimonial immunity and immunity from the criminal administrative and civil jurisdiction of the United States’.
However, in November 2018, after Wickramasuriya’s first cousin former President Mahinda Rajapaksa was appointed as the Prime Minister in the unconstitutional set-up government, Sarath Amunugama who acted as Foreign Minister took an abortive attempt to reinstate Wickramasuriya’s immunity.
After Gotabaya Rajapaksa was elected to office, Presidential Secretariat on February 12, 2020, has received an application under RTI, by Wickramasuriya’s Sri Lankan attorney Upendra Gunasekara requesting details on whether former President Maithripala Sirisena has waived off his client’s immunity.
Responding, Senior Assistant Secretary to the President Iresha N. Weerasekara has informed the requestor, that they have reviewed the documents and records in the possession of the Presidential Secretariat and as per their records there is no decision and /or instruction issued by the former President, between September 27, 2017, and October 23, 2017, to waive the immunity of Wickramasuriya.
Questions have been raised why the Senior Assistant Secretary failed to confirm from the former President or the former Foreign Secretary whether Wickramasuriya’s immunity was waived off rather than stating that the documents and records at the President’s office do not show that instructions have been issued by the former President to waive off former Ambassador’s immunity.
Although the Presidential Secretariat has informed Wickramasuriya’s Attorney as such, seven months later, President’s Secretary Dr. P.B. Jayasundera on July 2, 2020, has requested Secretary Ministry of Foreign Relations Ravinatha Aryasinha to withdraw the diplomatic note waiving off the immunity of Wickramasuriya.
Responding to this request, Aryasinha by letter dated July 2, 2020, has informed Dr. Jayasundera that necessary steps have been taken to withdraw the diplomatic note.
This letter states, ‘ I write further to your letter dated July 2, 2020, requesting to withdraw Diplomatic Note No: L/POL/33 dated October 23, 2017, issued to the US Embassy in Colombo.
‘Accordingly, this ministry has taken action to issue the attached Diplomatic Note No: L/POL/33(VII) dated July 2, 2020, to the US Embassy in Colombo’.
Aryasinha said Diplomatic Note No: L/POL/33(VII) to the US Embassy in Colombo states, ‘The Ministry of Foreign Relations, of the Democratic Socialist Republic of Sri Lanka presents its compliments to the Embassy of the USA in Colombo and has the honour to refer to Ministry’s Note Verbale L/POL/33 dated October 23, 2017, by which, diplomatic immunities enjoyed by Mr. Jaliya Chitran Wickramasuriya as former Ambassador of Sri Lanka to the USA were withdrawn.
‘Although the aforesaid Note Verbale appears to have been issued by the Ministry of Foreign Relations on the basis that such instructions have been issued by the former President, the Presidential Secretariat and Ministry of Foreign Relations have been able to verify that no records are available in both offices to prove that former President has issued such instructions.
‘Based on the above-mentioned observations, the Ministry of Foreign Relations is of the view that the said waiver is not legitimate and hence the aforesaid Note Verbale No: L/POL/33 dated October 23, 2017, is withdrawn.
‘The Ministry of Foreign Relations of the Democratic Socialist Republic of Sri Lanka avails itself of this opportunity to renew to the Embassy of the USA in Colombo the assurances of its highest consideration’.
Referring to the respective Diplomatic Notes, No: 756 by the State Department on October 23, 2017, the Diplomatic Note No: L/POL/33, on October 23, 2017, by the Ministry of Foreign Affairs, Diplomatic Note No: L/POL/33(VII), dated July 3, 2020, by the Ministry of Foreign Relations and Diplomatic Note No: US/ADMIN/INQ/2020, dated July 29, 2020, by the Embassy of the Democratic Socialist Republic of Sri Lanka in Washington DC, the United States has stated that under Article 32 of the Vienna Convention on Diplomatic Relations, waivers must be express, but international law does not dictate the internal domestic process of waiver or provide that a waiver can only be made by a Head of State or government.
The States Department on August 19, 2020, further states, ‘The October 23, 2017 waiver was expressed and appropriately communicated by the Ministry of Foreign Affairs via a diplomatic note on behalf of the Democratic Socialist Republic of Sri Lanka. Since then, the US government relied on the Democratic Socialist Republic of Sri Lanka’s waiver and has taken steps consistent with the waiver.
‘It is a well-established principle of international law that a sending State cannot revoke a waiver of immunity once it has been given. Therefore, to the extent that any residual diplomatic immunity otherwise might have applied with respect to Mr. Wickramasuriya in the pending proceeding, the United States considers the Democratic Socialist Republic of Sri Lanka to have validly waived Mr. Wickramasuriya’s immunity’.
Referring to Note Verbale dated August 19, 2020, the Sri Lankan Embassy in Washington DC once again wrote to the State Department on September 8, 2020, relating to the diplomatic immunity of Jaliya Wickramasuriya.
‘The Embassy of Sri Lanka wishes to inform the US Department of State, that the relevant authorities in Sri Lanka have taken note of the contents of the aforesaid Note Verbale of the US Department of State. The relevant Sri Lankan authorities continue to hold the view that Note Verbale No: L/POL/33, dated October 23, 2017, is not valid and therefore, the diplomatic immunity of Mr. Wickramasuriya has never been waived, as due internal process has not been followed prior to issuing the said Note. Hence the decision was taken at the highest government level to withdraw Note Verbale No: L/POL/33 dated October 23, 2017, is reiterated.
‘The Embassy of Sri Lanka further requests that the contents of Note Verbale L/POL/33, so withdrawn is not used in any manner contrary to the position of the Government of Sri Lanka reflected herein’.
‘Further, the Embassy of Sri Lanka would appreciate receiving the fullest cooperation of the US Department of State in this regard’.
‘The Embassy of the Democratic Socialist Republic of Sri Lanka in Washington DC avails itself of this opportunity to renew to the US Department of State the assurances of its highest consideration’.
Acknowledging receipt of the diplomatic note No: US/ Admin/INQ 2020, dated September 8, 2020, the Department of State has referred the Embassy, to the Department of State’s diplomatic note dated August 19, 2020, and to the other diplomatic notes.
It states, ‘The Department maintains the views expressed in its August 19, 2020, note and wishes to highlight that Sri Lanka’s diplomatic note L/POL/33 was sent in response to a formal request from the United States and that both were communicated through formal diplomatic channels in 2017. The Department of State further notes that since the Democratic Socialist Republic of Sri Lanka conveyed its waiver of immunity with respect to any immunity Mr. Wickramasuriya, might have otherwise enjoyed with regard to the criminal proceedings in the US District Court for the District of Columbia, the US government relied on the waiver and has taken steps consistent with the waiver’.
It is alleged that the reason behind Sri Lanka’s Foreign Ministry making requests to the US State Department to withdraw the diplomatic note dated October 23, 2017, was to prevent Wickramasuriya, from becoming a prosecution witness in investigations carried out by the U.S. into financial crimes committed by the Rajapaksa family.
The said US plan came to light in a highly confidential e-mail sent by Wickramasuriya’s lawyer in the US, Danny Onorato to Shavindra Fernando PC- Wickramasuriya’s Counsel in Sri Lanka. Through means, this confidential and legally privileged communication had gone into the hands of the Rajapaksa family within a few days after it was received in Colombo.
The exposure information led to panicked efforts to force the Sri Lankan Government to affirm diplomatic immunity for Wickramasuriya to prevent him from testifying in the US against the Rajapaksa family.
Wickramasuriya filed a petition at the Court of Appeal (CA Writ 416/2017) on December 4, 2017, seeking reinstatement of his diplomatic immunity.
When the case was taken up, for consideration, the AG’s Department raised preliminary objections based on a statement given by Prasad Kariyawasam Secretary Ministry of Foreign Affairs - the 2nd Respondent that the latter received instructions from President Sirisena.
Kariyawasam in his statement dated January 30, 2018, to the courts has stated that subsequent to the US Ambassador’s personal call to him and also the Note Verbale dated October 23, 2017, the US Ambassador has pointed out the need for the Government of Sri Lanka to cooperate with the US law enforcement authorities to avoid any allegation that the Sri Lankan government aids and abets money laundering and to waive diplomatic immunity of Wickramasuriya.
The statement further states, ‘I briefed the President who is the authority empowered by law to appoint and accredit Ambassadors, regarding this matter and sought his direction as to what course of action the Foreign Ministry should take. President and I discussed legal, factual and policy considerations regarding the request made by the US authorities and possible repercussions arising out of non-waiver of diplomatic immunity were also taken into consideration. Possible disrepute arising in Sri Lanka out of the perception that Sri Lanka was protecting and giving shield to ex-diplomats who had breached criminal laws of host countries was also taken into consideration. Such perception would in turn affect investor confidence and affect Sri Lanka adversely in its relations not only with the US but with other countries as well. The President instructed me to inform the US authorities that Sri Lanka will lift the diplomatic immunity of Mr. Jaliya Wickramasuriya. Since the Foreign Minister was overseas on that day, President requested me to inform him this decision to the Foreign Minister urgently’.
In the judgement delivered by the President of the CA Justice Preethi Padman Surasena, Foreign Secretary Prasad Kariyawasam had conveyed the decision to withdraw Wickramasuriya’s immunity pursuant to the instructions he had received from President Sirisena. As the decision to withdraw immunity was taken by the President, the CA ruled that it did not have jurisdiction to challenge an official act of the President.
When his petition was dismissed by the Court of Appeal in March 2018, Wickramasuriya appealed this decision to the Supreme Court.
The case was taken up before Justices Vijith Malalgoda PC, K. K. Wickremasinghe and Mahinda Samayawardhena. The judgement was delivered on October 29, 2021, and the appeal was dismissed with cost, stating there is no merit in the appeal.
Wickramasuriya was residing in the US engaging in tea export business at the time he was appointed as the Consular General to the Sri Lankan mission in Los Angeles in 2005. Three years later in 2008, he was appointed the Sri Lankan Ambassador to the USA.
The former Diplomat was accused to have pocketed US $ 322,027.35 out of US $ 6.6 million that was deposited to the Escrow account maintained by the Sri Lankan Embassy, to purchase a building to house the Sri Lankan Embassy at No: 3025, Whitehaven Street, Washington DC 20008.
According to the Settlement Statement issued to the US Department of Housing and Urban Development by Allen Randy who was in charge of the Embassy’s Escrow account, the purchase price was US $ 6.25 million. The Settlement Statement further states that the purchaser (the Government of Sri Lanka) owns the remaining balance of US $ 332, 072.35.
In a confidential addendum to the Settlement Statement, the balance of the Escrow account had been paid to two companies at Wickramasuriya’s discretion. These two companies were not involved in the legitimate transaction but were paid US $ 82,027.35 to Paper Crown LLC and US $ 250,000 to PPP International (Pvt) Ltd which is a Sri Lankan company.
It was later revealed that Paper Crown LLC is owned by Vinod Basnayake- a close associate of Ambassador Wickramasuriya. The money remitted to PPP International, owned by Allansis Brendon Sosa, had been re-remitted to the account of Ceylon Royal Tea and Supplies (Pvt) Ltd, owned by Ambassador Wickramasuriya.
Although Wickramasuriya had made the embassy shut down the Escrow account when withdrawing US $ 6.6 million to purchase the building, the Daily Mirror is in possession of a document to prove that the house had cost the country only US $ 6.25 million. According to the transfer document of the said building at 3025, Whitehaven Street, Washington, DC 20008, the ownership of the building had been changed from Bodman, Samuel E & M Diane to the Democratic Socialist Republic of Sri Lanka on January 16, 2013, for US $ 6.25 million.
Meanwhile, Wickramasuriya’s lawyer in the US, Danny Onorato by e-mail has further made a request to Shavindra Fernando to treat the sensitive information provided to be treated confidentially although it had been leaked to the Rajapaksas.
The e-mail further states, ‘I am writing to give you an update on our mutual client’s status in the United States. The following information is sensitive. As such, I will ask that you treat it as such. Mr. Wickramasuriya will not make his next court appearance in Sri Lanka.
‘As you know, Mr. Wickramasuriya was approached by the Federal Bureau of Investigation and was told that he was under investigation for allegedly misappropriating money while he was the US Ambassador to Sri Lanka. In fact, the investigation is identical to the matter currently pending in Sri Lanka where you represent him. When the agents approached him, they were looking for cooperation. They mentioned that Mr. Wickramasuriya was the Ambassador (withheld) in Sri Lanka and wanted him to provide assistance concerning other Sri Lankan government officials.
‘I followed up with the two federal prosecutors in the United States who are handling this information. They made similar remarks to me. Specifically, they wanted information on what they called the Rajapaksa regime and said they believed that this information was highly sensitive. They seem to want to use Mr. Wickramasuriya as a means to initiate an investigation of many others in the Sri Lankan Government both former and current. They expressed concern that various government officials were responsible for (withheld). They (withheld) expressed concern that (withheld) Sri Lankan Government officials (withheld) misappropriated billions of dollars. They are hoping that Mr. Wickramasuriya will (withheld) in hopes that they build cases of many other current and former government officials.
‘If he were to do this (withheld) he would not go to jail in the United States but there is no guarantee. (withheld) I think that he would benefit greatly if he were to cooperate with other high-ranking and low-ranking officials in Sri Lanka. (withheld) I have also been told that if Mr. Wickramasuriya were to try to leave the United States he would be arrested. They understand that he is obligated to go to court in Sri Lanka for the same conduct. (withheld) Mr. Wickramasuriya so he can be prosecuted in the United States.
‘We should figure out how to handle the upcoming court appearance in Sri Lanka. I am writing to ask that you discretely get clarification on that matter. If there is indeed a plan to (withheld) I do not know if the US Government has told the GoSL of its plans to use Mr. Wickramasuriya to (withheld) prosecute government officials. As such I would ask you to be discrete on this matter so Mr. Wickramasuriya has an opportunity to provide information to the US authorities in exchange for leniency. I know one of the US prosecutors fairly well and trust him. He thinks he will treat our client fairly if he were to corporate.
‘Please advise me as soon as you can on whether the Sri Lankan Government (withheld). Thanks very much, Danny- Danny Onorato, Partner Schertler & Onorato, LLP, No: 1101 Pennsylvania Avenue, N.W. Suite 1150, Washington
DC 20004.