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Thursday, May 23, 2024 | Back issues
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Court Says Sri Lankan President Has Immunity

WASHINGTON (CN) - Sri Lankan President Percy Mahendra Rajapaksa is immune to suits brought under the Torture Victims Protection Act, so long as he is in office, a federal judge ruled.

Citing "two centuries of case law and basic constitutional and statutory principles," U.S. District Judge Colleen Kollar-Kotelly said she was bound to recognize the immunity of a foreign head of state as requested by the State Department.

The merits of the lawsuit , which claimed that Rajapaksa is liable for people tortured and killed during Sri Lanka's civil war, did not factor into the decision, Kollar-Kotelly stressed.

Rather, the Supreme Court's 1812 decision Schooner Exchange v. McFaddon foreclosed the case.

In Schooner, the justices concluded that federal courts must waive jurisdiction over certain actions of foreign sovereigns because the United States considered its jurisdiction over its own territory absolute.

The decision laid the way for a two-part test by which courts determine immunity for foreign sovereigns or officials. First, if the nation in question prevailed upon the State Department to file a "suggestion of immunity," federal courts must surrender jurisdiction over the case. Where no State Department request is forthcoming, the courts can make their own determination regarding immunity.

In the Rajapaksa case, the U.S. State Department did filed a suggestion of immunity brief.

Noting that "the State Department's suggestion of immunity is conclusive and not subject to judicial review," Kollar-Kotelly said she had to defer to its judgment.

The plaintiffs had argued that the plain language of the Torture Victims Protection Act says that "any individual, including sitting heads of state, liable for torture or extrajudicial killings, and that any suggestion of immunity in cases such as this runs counter to the law," regardless of the common-law precedent set by Schooner.

Kollar-Kotelly relied on the legislative history of the act to reject this construction. "The clear statutory purpose behind the TVPA was to maintain the common law doctrine of head of state immunity, not override it," she said.

Sri Lanka, a small island nation off the coast of India, has been host to a devastating conflict between the Sinhalese majority and the Tamil minority since the so-called Black July of 1983, in which the state allegedly sponsored the killing of 3,000 Tamils.

Rajapaksa, a Sinhalese Buddhist, has been president and commander in chief of the arms forces since he was first elected in November 2005.

His government is currently defending its actions in the civil war before the human rights council of the United Nations.

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