“While any person holds office as President of the Republic of Sri Lanka, no civil or criminal proceedings shall be instituted or continued against the President in respect of anything done or omitted to be done by the President, either in his official or private capacity.”
Thus, is the verbatim language of Article 35(1) of the Constitution, which is a ‘stay out of jail free’ card offered by the law of the land to any potential presidential candidate who may be facing criminal charges.
To a person in Sri Lanka on trial for over Rs. 11 billion in corruption and over Rs. 33 million in criminal misappropriation of public property, as well as several ongoing criminal investigations into allegedly corrupt arms procurements and abductions and murders of journalists, this provision of the Constitution may provide the only way out to avoid coming before the courts, once the bevy of interim orders stalling out his trial have run their course.
Indeed, Gotabaya Rajapaksa’s adult life can be characterized by the pursuit of opportunities to flee personal adversity and seize selfish opportunity, from his days as an army officer, all the way to his current presidential ambitions.
By the time the Indian Peacekeeping Force (IPKF) had taken over peacekeeping and combat operations in the north between 1987 and 1990, Rajapaksa was already being treated to pleas from his family in California to join them on a US green card.
However, throughout the peacetime, Rajapaksa declined to go to California with his family, instead choosing to enjoy the perks of an army officer in Sri Lanka. It was only when hostilities broke out again with the LTTE, that in July 1991, he pleaded for an early discharge to get out of the Army for the ostensible purpose of migrating to America.
The then Army Commander, Lt. Gen. Wanasinghe, wrote that even though he had met Rajapaksa “and advised him to reconsider his decision to retire at this time,” Rajapaksa had assured him that he “had given considerable thought to this matter and that he has no option but to retire, as any further delay would adversely affect his family and children.”
After obtaining a release from the army in August 1991 and escaping the renewed hostilities by using his family and need to migrate to the United States as an excuse, Rajapaksa then did not leave Sri Lanka, but instead pursued higher education at the University of Colombo, obtaining a postgraduate diploma in computer technology in 1992.
Upon concluding his diploma, Rajapaksa still did not migrate to America as he told the Army he planned to do. Instead, he took up employment in the private sector. He was employed by both Informatics and the Capital Maharaja Organisation, several years before finally moving to the United States.
Having moved to California, Rajapaksa went from job to job, before earning his stars and stripes in January 2003 by swearing allegiance to the United States and relinquishing his Sri Lankan citizenship.
“I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God,” reads the oath sworn by Rajapaksa on January 31, 2003.
Having turned his back on Sri Lanka and given up his citizenship here, Gotabaya Rajapaksa continued to reside in America, deciding to return only upon being faced with economic hardship in the US, when a political opportunity arose out of his brother, Prime Minister Mahinda Rajapaksa, becoming a candidate at the November 2005 Presidential Election.
Rajapaksa then fled the United States and came to Sri Lanka on his US passport on a tourist visa, as an American citizen, to participate in the Presidential Election campaign. With Mahinda Rajapaksa winning the election and becoming president on November 18, 2005, Gotabaya Rajapaksa then immediately sought dual-citizenship, and assumed control of his brother’s Ministry of Defence.
He functioned as the most politicized defence secretary in Sri Lanka’s history, appearing at political campaign events and openly intertwining the machinery of the police and armed forces with his family’s political agenda, until the Rajapaksa’s were defeated and lost office in January 2015.
With Mahinda Rajapaksa’s defeat, the SLFP group that supported the Rajapaksa family was looking for political leadership from Gotabaya Rajapaksa, who shunned them, focused instead on his criminal defence in a variety of investigations being conducted by the Criminal Investigation Department (CID) and Financial Crime Investigation Division (FCID).
Indeed, while several family members, from Namal Rajapaksa and Yoshitha Rajapaksa to Basil Rajapaksa, have all been accused of serious financial crimes, Gotabaya Rajapaksa has distinguished himself as the only member of the family to get orders from the Court of Appeal and Supreme Court preventing his arrest and preventing his criminal trials from proceeding.
Rajapaksa has obtained several interim orders from the superior courts, preventing his arrest on the MiG Deal, Avant Garde, Mihin Lanka, Lanka Hospitals and D.A. Rajapaksa monument investigations, as well as successive interim orders preventing his trial from proceeding on both a Rs. 11 billion corruption case filed against him in 2016 and a criminal misappropriation case filed against him in August 2018.
His attorneys have typically, after receiving these orders, adopted legal tricks to stall out the proceedings and keep the orders in force for as long as possible. However, the viability of this strategy is fast eroding, with the Supreme Court due to argue whether his trial before the Permanent High Court at Bar can continue on October 01, and the Court of Appeal set to give a judgment on whether his corruption case can begin on August 30.
With these criminal cases pending against him, Rajapaksa shunned continued overtures from the Joint Opposition and Sri Lanka Podujana Peramuna to take a leadership role, contest for a parliamentary seat or local government elections, refusing to give up his American citizenship. Despite several claims to the contrary, Rajapaksa only moved with haste to renounce his American citizenship when he was served with a lawsuit in California by Ahimsa Wickrematunge for the January 2009 murder of her father Lasantha.
Rajapaksa was served papers for the murder case on April 7, then rushed to Colombo and renounced his US citizenship ten days later. He used his renunciation as a basis to try and get the Wickrematunge murder case against him dismissed, an effort that has proved more challenging than stalling his criminal trials in Sri Lanka.
However, were Rajapaksa to become President of the Republic of Sri Lanka, he would automatically become immune to prosecution in all the criminal and civil matters pending against him in both Sri Lanka and the United States. Few other options remain to prevent the spectre of parallel criminal trials.