Inside Story of the First - Ever Foreign Indictment of A Lankan Ambassador

It was revealed last month that former Sri Lankan Ambassador to Washington D.C., Jaliya Chitran Wickramasuriya is facing criminal prosecution in the United States of America, according to an indictment and supporting documents unsealed on December 20, 2018 in the United States District Court for the District of Colombia.  

The indictment, filed under seal on May 1, 2018, charges Wickramasuriya with two counts of wire fraud, two counts of money laundering and one count of visa fraud.  The charges stem from allegations that in early 2013, Wickramasuriya and others embezzled about US $332,000 from the Government of Sri Lanka (GoSL) in connection with a property purchased in Washington D.C. that was intended to serve as the new Sri Lankan embassy. He was also charged with committing immigration fraud in connection with an immigration application that he signed in the United States in 2014.   The US Government has requested an arrest warrant for Wickramasuriya and intends to arraign him before court.   

• Sri Lankan authorities have been aware of the case filed against Wickramasuriya from at least early November 
• Wickramasuriya filed a petition at the Court of Appeal seeking reinstatement of his diplomatic immunity
• Wickramasuriya remains without diplomatic immunity, pending a final determination by the Supreme Court
• It is extremely rare for the US criminal justice system to become intertwined in foreign politics
• The former ambassador also faces the prospect of criminal charges in Sri Lanka

The Daily Mirror is in possession of details of all the relevant court documents. According to the indictment, Wickramasuriya had given instructions to siphon off a sum of US $332,027.35 in funds of the GoSL to the bank accounts of two private companies; one in the United States and another in Sri Lanka. The indictment reveals emails sent by Wickramasuriya instructing the real estate attorney for the embassy and others to make payments and endorsements in connection with the scheme and accuses Wickramasuriya of forging an “Addendum” to the sales agreement that falsely claimed that this embezzled sum was paid as commissions to the real estate agents of the embassy and the seller of the property.  

The Financial Crimes Investigation Division (FCID) is investigating the same transaction and has informed the Colombo Fort Magistrates Court in B Reports that the companies nominated by Wickramasuriya were Paper Crown LLC in the United States and PPP International Pvt Ltd in Sri Lanka. According to the FCID, a sum of over Rs 18 million of the money had been embezzled by Wickramasuriya to PPP International of No: 11, Mansion Place Negombo owned by Allansis Brendon Sosa who is a Sri Lankan. Thereafter this money had been funneled to the bank account of his tea company in Sri Lanka, Royal Tea and Supplies Pvt Ltd. The investigations meanwhile had found out that on six occasions PPP International had paid Rs. 10.196 million each to Ceylon Royal Tea.  

Wickramasuriya, was residing in the US engaging in the 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 USA.  

The FCID investigations revealed that Paper Crown LLC is owned by Vinod Basnayake- a close associate of Ambassador Wickramasuriya. According to the ‘B’ Reports filed by the FCID, both Basnayake and Wickramasuriya were meeting constantly at the Sri Lankan Embassy in Washington during the latter’s tenure as the Ambassador.  

Following the misappropriation of embassy funds, Wickramasuriya was accused of evading taxes in the US which led relevant departments in the US to start an investigation into Wickremesinghe’s dealings. 

From the investigations, it came to light that Wickramasuriya had violated the US laws by not declaring this illicit income and evaded paying taxes. As it was a serious offence in the US, the US Government had requested the GoSL to recall Ambassador Wickramasuriya immediately. Later, career diplomat Asela Weerakoon was temporarily posted to the US as the Sri Lankan Ambassador till a permanent replacement was made.  

Tight-lipped   

However, the Rajapaksa Government was tight-lipped about the US Government’s request to the GoSL to remove Wickramasuriya as the Ambassador and how the same accused was once again nominated to Canada as the Sri Lankan Ambassador to that country.  

When the Ministry of Foreign Affairs sent the credentials of Wickramasuriya after his appointment to Canada as the newly appointed Sri Lankan Ambassador, the Canadian Government refused to accept Wickramsuriya’s appointment as he had committed a serious financial offence to the US Government. Although for Rajapaksa, Wickramasuriya’s alleged involvement in swindling Sri Lankan Government funds did not even warrant an investigation, for the US and Canada, they did not want to allow him to serve in those countries as their Ambassador given the available evidence of even tax evasion.  

Be that as it may, according to the now public case docket in the US District Court of Washington DC, Sri Lankan authorities have been aware of the case filed against Wickramasuriya from at least early November 2018, when the District Court granted an order permitting US authorities to share information about the charges with their Sri Lankan counterparts.   

Before the charges were filed, the Ministry of Foreign Affairs, by letter dated October 23 2017, formally waived any immunity that Wickramasuriya held in connection with the U.S. Government’s investigation of him for embezzlement and laundering of public funds in connection with the 2013 embassy purchase.  

In the ensuing months, Wickramasuriya filed a petition at the Court of Appeal seeking reinstatement of his diplomatic immunity. When his petition was dismissed by the Court of Appeal in March 2018, Wickramasuriya appealed this decision to the Supreme Court, where his appeal is pending.  

According to the Judgment by Court of Appeal President 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 His Excellency the President’.

As the decision to withdraw immunity was taken by the President, the Court of Appeal ruled that it did not have jurisdiction to challenge an official act of the President.  

However, during November 2018, while Wickramasuriya’s first cousin former President Mahinda Rajapaksa was serving as Prime Minister in the unconstitutionally set-up Government and Sarath Amunugama acted as Foreign Minister, an abortive attempt had been made to reinstate Wickramasuriya’s immunity. There is no indication that either President Maithripala Sirisena or ‘Prime Minister’ Mahinda Rajapaksa endorsed the attempt at any stage, according to foreign ministry and law enforcement officials who are familiar with the matter. Wickramasuriya remains without diplomatic immunity, pending a final determination by the Supreme Court.  

The motion in the US District Court in Washington DC to share details with the Sri Lankan authorities, filed by United States Attorney Jessie K. Liu of the Department of Justice on November 8, 2018, makes an indirect reference to the abortive attempt in Sri Lanka to reinstate Wickramasuriya’s immunity.  

It’s stated that ‘in the last 10 days or so, there had been a change of Government in Sri Lanka. The President of Sri Lanka had attempted to remove the sitting Prime Minister and to replace him with former President Mahinda Rajapaksa. Several media outlets have referred to the matter as a constitutional crisis,’ the filing continues.  

However, the Rajapaksa Government was tight-lipped about the US Government’s request to the GoSL to remove Wickramasuriya as the Ambassador and how the same accused was once again nominated to Canada as the Sri Lankan Ambassador to that country

Foreign politics   

It is extremely rare for the US criminal justice system to become intertwined in foreign politics, according to diplomatic sources. However, US prosecutors took the extraordinary step of disclosing to the District Court that they were in close contact with US officials in Sri Lanka about the risk to their prosecution from a potential political decision to reinstate Wickramasuriya’s diplomatic immunity.   

“We have been advised by United States officials in Sri Lanka that there will be a meeting to discuss and/or determine the immunity issue on Sunday, November 11, 2018, and they believe that advising the Sri Lankan authorities of the fact that the defendant has been indicted will be of relevance and assistance in making their determination. A resolution to the issue of whether the government of Sri Lanka will assert immunity in this case is important to the timely prosecution of this matter,” the motion said.  

The US Government sought a ‘limited unsealing of the indictment in order to share the fact that the defendant has been indicted and the charges that he faces with the Sri Lankan Government as Wickramasuriya’s legal challenge to the immunity waiver is litigated’.   

This motion was granted by the court and US authorities thereafter communicated the facts of the case to their Sri Lankan counterparts. It was thereafter that attempts to reinstate Wickramasuriya’s immunity hit a brick wall with the Sirisena-Rajapaksa regime refusing to reverse the original decision of the President.  

When the indictment was filed on May 1, 2018, US prosecutors submitted to court a motion requesting that the case documents be kept secret. “The government submits that these facts present an extraordinary situation and a compelling government interest which justify not only the sealing of the criminal indictment and the arrest warrant, but also a delay in the public docketing and filing of these sealed pleadings and the accompanying order,” the prosecutors had stated.  

The US Department of Justice has stated that ‘sealing the documents and withholding them from the public docket is necessary to protect sensitive information, to ensure the defendant does not flee or destroy evidence, and to protect civilian witnesses’.  

Supporting the request to seal the case in May this year, the Justice Department had informed Court that law enforcement believes that the defendant is not aware of the full extent of the Government’s investigation or that the Government has uncovered certain of the facts underlying the allegations in the criminal investigation. These facts include information provided by civilian witnesses familiar with the defendant’s ongoing criminal enterprise’.  

Criminal charges   

The former ambassador also faces the prospect of criminal charges in Sri Lanka pending the conclusion of the FCID investigation into this matter. Sri Lankan authorities have jurisdiction to use the evidence gathered by US prosecutors and additional records to frame additional charges, according to senior Government officials familiar with the matter.  

Specifically, US and Sri Lankan investigators have been exchanging material on the basis of Mutual Legal Assistance (MLA) requests, which form the gold standard of the exchange of evidence between jurisdictions for criminal prosecutions. Under Sri Lankan law, material received from the US in response to an MLA request may be admissible as evidence in criminal proceedings.  

While Sri Lanka may not charge Wickramasuriya again for the same offences he faces in the US, they may pursue other charges such as forgery, criminal breach of trust and offences against public property.  

The Daily Mirror earlier revealed that pressure is mounting on Wickramasuriya to plead guilty to the charges in the US and to cooperate with investigators in that country. An email shared with the Rajapaksa family by an attorney familiar with the matter was obtained by the Daily Mirror. 

The email stated that federal prosecutors in the US “wanted information 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 investigation of many others in Sri Lankan Government both former and current. They expressed concern that various government officials were responsible for having misappropriated billions of dollars. They are hoping that Mr. Wickramasuriya will cooperate with the hope that they build cases of many other current and former government officials.”  

“If he were to do this he would not go to jail in the United States, but there is no guarantee. I think that he would benefit greatly if he were to cooperate against other high ranking and low ranking officials in Sri Lanka,” the lawyer recommended.  

Wickramasuriya has attempted to assert diplomatic immunity in the United States. His appeal to the Supreme Court to force the GoSL to assert immunity on his behalf to prevent him from testifying in US, is pending before the Court.   

As a part of this process, a President’s Counsel was tasked to file a writ application in the court of appeal to legally compel the GoSL to reverse its decision not to assert diplomatic immunity. Filing a writ petition, Wickramasuriya was seeking an order to quash the decision to issue a letter waiving off his diplomatic immunity.   

However, the writ petition was taken up in the Court of Appeal on February 6, Additional Solicitor General Yasantha Kodagoda appearing for the Attorney General, raised a preliminary objection, stating that seeks the decision to withdraw immunity was taken by President in his official capacity and the only court with jurisdiction to reverse that is the Supreme Court according to the Constitution.  

However, his claim of immunity has been confounded by a form tendered by the former ambassador to the US immigration authorities when he resumed his permanent residency status, also known as a ‘Green Card’, after he ceased to be ambassador.  

Jaliya Wickramasuriya submitted to the US Citizenship and Immigration Services agency a “Form I-508”, which is a waiver of rights, privileges, exemptions and immunities. In this form, signed and dated by Wickramasuriya on 25 March 2014, he has stated that he had been employed as a Sri Lankan Government official at the Embassy of Sri Lanka in Washington D.C.  

‘Accordingly, I seek to acquire or retain the status of an alien lawfully admitted for permanent residence and hereby waive all rights, privileges, exemptions, and immunities that would otherwise accrue to me under any law or executive order by reason of such occupational status,’ Wickramasuriya has stated as thus in the Form I-508 submitted to US authorities.